If you have not already done so, you may wish to read the
Introduction to Gnomica.
Sunday 27 January 2013
Read gnomica 1-250 here!
The law isn’t justice.
It’s a very imperfect mechanism.
If you press exactly the right buttons and are also lucky,
justice may show up in the answer.
A mechanism is all the law was ever intended to be.
Raymond Chandler (23 Jul 1888 – 26 Mar 1959)
in The Long Goodbye (1952)
It’s a very scary idea this superb American writer of ultimate noir fiction here offers up in the mouth of his classic creation, the private eye (PI) Philip Marlowe. Especially in the last generation or so, since the bold initiatives of Barry Sheck (19 Sep 1949 – ) and Peter Neufeld and their ‘innocence project’ (started in 1992) has sensitized society to the grotesque injustices that the ‘law’ and its many (too often) unaccountable minions have worked on innocent Americans, it is clear that, most unfortunately, Philip Marlowe is right – as in sooo much else in life, the rôle of luck is incalculable.
The law is, after all, just “a mechanism”, an abstraction, words in a book. The reality is that it usually works as intended. But since human beings are involved in its operations and implementation – from the police to the judiciary and all the folks in between – it has built into it all the imperfections of the crooked timber that is our humanity. There are innocent people in prison! But going on twenty years now (e.g., 1992, 1997, 2002, 2013), we have almost become inured to the iterations of narratives about wrongful convictions finally proved as such (especially in rape cases) on the basis of DNA evidence.
As for the law and lawyers, given a barrel of apples capacious enough to hold a lot of fruit, some of it is bound to be rotten. The Nifong case entailed so extreme an example of rotten prosecutorial misconduct that it made the general news a few years ago (2006) and — mirabile dictu — lawyer Nifong was actually disbarred by his fellow lawyers. But between the decomposed apples and the shiny ones there is a range, and the over-reaching prosecutor going for convictions at any cost (to the defendant, that is) is not entirely unfamiliar to the American legal community.
My sense is that prosecutors don’t get elected on the basis of how many innocent people they let go free but on the number of people (period) that they convict. Given the (perverse?) incentives the system has set up, one cannot blame only the prosecutor for the wrongful convictions in this country – after all, as far as either the convicted innocent or society at large are concerned, does every prosecutor who won convictions later proved beyond doubt as wrongful suffer any real consequences (e.g., personal suits, prison time, high opprobrium in the community)? The Nifong matter, as suggested, was so extraordinary not for the prosecutorial misconduct as such but precisely because there were in this one egregious case personal consequences for the prosecutor himself. The problem as I (a non-lawyer) see it, then, is a pretty much serious lack of accountability. That being so, then, the prosecutor may well ask, why not roll the dice and maybe get that conviction?
I’d say Marlowe’s notion still has relevance over half a century of American jurisprudence on. But with the ‘innocence project’ in full swing, one hopes his words become less and less relevant.