The Blind Lady?

Law and legal process…American style

There has only really been one story here over the last couple of days, and thats been Ferguson.  There’s lots of comment being made about this unfolding situation and I don’t plan to add to those. However, it was interesting to watch events unfold against a process and backdrop, very different, to that found in Scotland.

First off here there is the Grand Jury.  This is something I’ve heard off before but had no great knowledge of.  It strikes me as a bit of a strange beast.  

In Scotland decisions to prosecute lie with the Crown.  Decisions are reached by experienced, trained and independent legal brains.  That is not the case here.  Rather, for major issues,  it’s likely a Grand Jury will be called.  The jury should be selected from local citizens as it is in Scotland. However, thats where things start to change.  Here there is jury selection; this process gives the prosecution and defence the opportunity to seek the removal of some, and thereby the inclusion of other, jurors.  As a result, is it really a trial by peers?  I was at a presentation this week where a lawyer said when it was in his clients interests, he objects to jury members to seek bias.  Not something we readily recognise in Scotland.

Grand Juries are presented the testimony the prosecution would plan to deliver at trial.  Witnesses are called to give evidence and forensic evidence is presented.  Jurors can call witnesses, not already presented and visit the locus of the incident.  They then deliberate before reaching a conclusion.  That conclusion is not about the guilt or innocence of the accused, rather they decided whether an indictment should be served, or not, on that accused and, consequently, whether or not they should stand trial. The jury also decides what that indictment should be for, that can range from first degree murder  to involuntary manslaughter and three other levels in-between.  

Consequently a suspect's fate and, by the same token, the victim’s right to justice, is not trusted to trained, independent legal brains but to 12 citizens - the make up of which is massively important in the States, far more so than is Scotland.  The impact of decisions too, as this week shows, can be titanic.  Should that decision making a role be for jurors or the appointed officials?

Race remains very important here.  Diversity in the USA is huge. Nigel Farage would not know where to look if he heard the diversity of languages, dialects and dress that sit around me on the train each day!  I think that diversity is something to be celebrated; America is lucky to have such a breadth, I feel.  It is also something to be mindful of in the US setting.  Balance is really important, and getting that right on juries, whether Grand or otherwise is impactive. This is not something we would generally give thought to in Scotland, but its hugely important here.

Whether the jury was unanimous in the Ferguson case or how it was divided was not shared and, in this case, and jurors will not be able to talk about it - under threat of prison.  This is broadly the position in the UK, but it is the exception here.  Often jurors in big cases will spill the beans on the deliberations or have articles in the Sunday’s written around their accounts of the case, all for the big bucks.

One of Monday night’s TV pundits, who happened to be an former circuit judge who was now chair of his own TV trial programme (!) suggested that if a juror was paid enough they might think a year in the jail was worth the pay day!  Not helpful, I thought.

On one level, Grand Juries may sound attractive, but its a situation that strikes me as a bit of an abdication of decision-making.  Particularly as the County Prosecutors, rather than being independent, have already been elected by the citizens, consequently is reasonable to say they should be trusted to make a judgment.

This is one of these situations where I think Scotland has got it right; that being where expert and independent legal brains are left to take complex decisions, which are not necessarily popular but are circumstances the decision-maker is prepared for and who benefits from professional support networks.  I wonder how the lay people, the local people, the non-legally trained people who comprised that jury feel tonight?  Particularly as leaks are now starting to appear, and one TV station is reporting that the officers home address has been leaked to the press.

I wonder, however, if justice ever be blind or should the good lady, occasionally, have an eye open?

In any event, I sincerity hope and pray America has a more peaceful night tonight.

Court TV

It was also interesting too that the decision not to prosecute in this case was beamed live into American homes from a Ferguson court room.  Again, in Scotland, we wrestle with cameras in court; where they are admitted as a rare exception.  Here they are exempted with the same degree of rarity.  I guess the question is does that make justice more accountable or turn it into just another reality show?  Personally, I think there is mid point which neither we nor the Americans have reached.  Justice should be seen to be done and sometimes that sight should extend beyond the court, but it must also be seen in a way that ensures popcorn is not necessary.

Flowers in my hair?

I spent last week at the American Society for Criminology Conference in San Fransisco.  This was a massive affair.  Presentation panels ran for 90 mins each starting at 8 in the morning until the last one finished at 6:30 in the evening.  There were four papers per panel and around 40 panels running at the same time!  Yup, 40 times four every 90 mins for the day, and no lunch break!

Like any big event like this, there are a few frogs, but there were also some great presentations.  Body worn cameras, stop and search/frisk and police training were all very much in view.  What was less visible were the police.  On the one hand, there were lots of academics talking about what we do and how, very often, we could do it better and not many of us there to hear or contribute to the various debates.  That’s something, I think, policing in general could look at.

The city itself was pretty cool.  I did notice a few things that surprised me.  First off were the sheer numbers of homeless people.  I have never been around so many people who sleep on the streets.  Picture Princes Street; every bus stop after 9 at night had at least one person sleeping in it, from about the same time, if not earlier, people would simply lie down outside a shop like Marks and Spencer and make their bed, whilst shoppers (stores are open considerably longer than the UK) and diners are walking over and around them.  I don’t know what San Fran does to support homelessness but…

Something else I found strange was the ever present smell of cannabis.  San Fransisco has not legalised the drug per se but what it has done is allowed it for medical use.  There seems little medical issue that would not merit a certificate allowing cannabis use as a possible treatment, something I never thought about asking the doctor to help my verruca all those years ago!   Clearly there are a lot of ill people as the smell just seems constant, there were also a lot of guys around who clearly never handled the Sixties too well, such as this refreshingly honest guy! 

I’m not making any judgment, it just seems a bit bizarre, thats all.  

A bit like decision making in major cases, police policy in San Fran is not written by the police, rather it has to go for public consultation and anyone with a view gets their five minutes.  Again, this sounds democratic but the SFPD take a different view; a high profile example being use of  Taser.  

The cops here have a number of tools in the box…verbal then baton then fatal force - no Taser!  They are one of the few departments in the nation without the ability to use the less lethal force that Taser offers.  This is the result of the public consultation around its introduction.  I feel any lesser lethal option can only be a good thing, I also get the feeling that’s what the SFPD think too.

You say tomato

When I was in San Fransisco I discovered a quiet wee bar around the corner from my traffic noise filled hotel.  This turned into my wee local for the week.  It was all going so well until Saturday night.  I fancied a wee dram, my first of this adventure.  I asked the barman, Caroline, for a whisky.  American or Scotch she asked.  As I have mentioned previously, I’m very much taking on a ‘when in Rome approach’.  To that end, I asked for a large American dram.  To which Caroline replied ‘okay, one large Knob coming at you’.  To whit, I burst into laughter and said ‘I very much hope not’…I later explained the joke as I enjoyed my large Knob Creek Whiskey.  Yup, things are the same here, but often very different, you certainly wouldn’t get that in the Diggers!

Finally for all those who think this is easy…my flight back to DC was a nightmare.  As many know, I am not the best of flyers, so you can imagine my face when the seatbelt signs stayed on for most of the 5 hours in the sky.  There were large periods where the air crew were required to sit down as it was so rough.  I literally wept as the plane flew over the Rockies and almost did a JPII when we touched down in DC!  Please to be home could not describe it!!!!

What I’ve leaned this week

The legal system in the US is similar but different

Judicial findings can have an enormous impact

Diversity really is important

A big Knob can be a good thing

I will not retire to become a pilot

This is a bit longer than usual, as its been a bit of a big week here.  As always though, thoughts, feedback or discussion is always welcome.

Stay safe

Richie