My friend the hotshot criminal lawyer is tired of hearing me say that I'll call her whenever I'm in legal trouble -- if I'm guilty. Otherwise, I'll find someone cheaper. A great lawyer is not someone who can get an innocent person off. A great lawyer is someone who can get a guilty person off.
R. Kenneth Mundy, who represented Washington Mayor Marion Barry in his drug and perjury trial, is a great lawyer. But what does it say about a legal system when a person videotaped using crack can't be convicted for it? Or, if that is too tendentious a question, what does it say about a legal system that a trial can last two months, the jury can spend eight days deliberating, and then it can be unable to produce a verdict on all the major counts? Surely that is absurd whatever you think about the Barry case.
In the aftermath of the Barry trial, there's been a lot of brooding about race. Better, perhaps, to brood about the justice system. No other advanced country would have a circus like the Barry trial with, in effect, no result. To be sure, other systems have their defects, too. But there is still a thing or two to be learned from the comparison.
In Britain, they do not allow what they call "jury vetting" and what we therefore give a French name: voir dire. This is the elaborate process of allowing the lawyers to pick and choose among jurors, which can sometimes take days. It introduces a whole, unhealthy level of legal strategizing. It also tends to produce jurors less disciplined about applying legal doctrines to the facts and suppressing their own prejudices.
A second difference in Britain is that judges are allowed to give the jurors far more guidance. They comment on the merits of the case, the weight of the evidence, the persuasiveness of the witnesses. In America this kind of "prejudicing" the jury is actually forbidden by many state constitutions, and federal judges have barely more latitude. British juries can ignore the judge's advice, of course. But they are less likely to produce a result totally at odds with the evidence and the law -- and more likely to produce a result, period.
Britain also allows verdicts of 10-to-2. Prof. John Langbein of Yale insists this makes little difference in the result. "It's not like in that Henry Fonda movie. If there's one holdout, he'll cave." But not requiring unanimity undeniably speeds things up. British lawyers say an eight-day jury sequester would be almost unimaginable there.
The absurdities of the American system are not limited to those favoring the defendant. A couple of British lawyers expressed amazement at the 14-count indictment in the Barry case: a recipe, they think, for delay and confusion. In general, they are bemused by America's grandstanding prosecutors. As viewers of "Rumpole of the Bailey" are aware, in Britain the same barristers take turns defending and prosecuting cases.
This brings us to the infamous Vista Hotel setup of Barry. The art of the "sting" is more highly developed in America than elsewhere. I'm of two minds. On the one hand, it might not bother me if every elected official in America knew there was a government office permanently dedicated to entrapping him or her in some dereliction of duty -- the political equivalent of an unmarked police car. On the other hand, I was sobered by Norval Morris, a New Zealander now teaching at University of Chicago Law School, who said: "In a world where many people have their price, I don't want the government going around testing the price of everyone."
Any judicial reforms that made it easier to convict guilty people would also, of course, make it easier to convict innocent people. Is this a serious danger? No, because few people get trials. As Langbein points out, the trial procedures that give every defendant, guilty or innocent, a shot at getting off don't exist in the 99 percent of all felony cases (and virtually 100 percent of all misdemeanors) settled by plea bargains. "You can find a hippopotamus in Washington -- in the zoo -- but they're not a part of the daily life of the city. The same is true of jury trials." A defendant who refuses to plea bargain pays double if convicted: once for his crime and once for asserting his rights. But it is impossible to offer a Barry-style trial to every defendant. A more streamlined trial for all comers would be better justice.
Trial procedure is a more worthy area for reform than the court-created Fourth, Fifth and Sixth Amendment rights, which have obsessed conservatives for so long. But liberals also need to develop a renewed appreciation of expeditious convictions for the guilty. The Marion Barrys and Oliver Norths get the Kenneth Mundys and Brendan Sullivans. The deck is rarely shuffled so that the "Get Out of Jail Free" card comes up for the ordinary defendant. Furthermore, more efficient justice is the best answer to the lock-em-up fever sweeping the country. American prison sentences are already too long, and jails are hopelessly overcrowded. If punishment were swifter and surer, it wouldn't have to be so severe in order to satisfy the needs of deterrence and the community's demands for vengeance.