Tuesday, May 26, 2009

The "Mystery" of Judicial Performance

'Alexi de Tocqueville concluded that "the practical intelligence and good political sense of the Americans" could be traced to their regular involvement in the enterprise of jury service.

Modern critics tell a different story. 'No attorney ever thinks a jury will be objective', they argue. Instead, 'all jurors are predisposed to certain choices that have nothing to do with the evidence in the case'; panels typically contain "a cross-section of global-village idiots"; the average juror is "Rip Van Winkle', someone who has been snoozing in the hills for the past twenty years; erratic and irrational jury behavior makes verdicts a crapshoot.

A prosecutor and defense attorney must "temper zeal with integrity" and remember the "upright presence in their mantle of office." Important in themselves, such phrases are also the whistles of the legal profession as it skips past the darkest graveyard in its neighborhood. The prescribed limits on lawyers are more declaratory in tone than supervisory in nature, and they are easily ignored.

Non-legal narratives are invariably embedded in a trial, particularly high-profile trials. They unfold through narratives that strain for heightened effect. Lawyers will try any combination of themes in their need to win. Innocent and guilty, yes; but these categories are rarely sufficient for the emeshed advocate who quickly converts them into right and wrong, good and evil, harmless and dangerous, saved and damned, chaste and polluted, admired and ignored, loved and hated, worthy and unworthy.

These additional binaries in adversarial rhetoric conjure up whole streams of non-legal narratives with advocacy, whether as sermon, sentimental fable, cautionary tale, mystery story, melodrama, gothic legend, romance, or adventure yarn. The winning story in a controversial trial almost always has an extra legal dimension familiar to a community... Indeed, nonlegal narratives can occasionally challenge legal texts successfully.

We have seen how trials magnify the personalities involved; how a good story, whether true or false, can capture a trial; how generic recognitions (stereotypes) convince on their own; how submerged intertexual relations control subliminal understandings; and how advocacy tends towards excess and melodrama beyond the facts.

To measure the unacceptable deviance of others honestly and fairly is one of the most trying tasks in human endeavor.

Furthermore, two thousand years ago the greatest lawyer of antiquity invented a concept that no social system can afford to be without, even though the idea rarely appears in the language of the court or in the public discourse about justice. Cicero defined it in an awkward phrase: "quibus infertur, si possunt, non propulsan iniuram": 'those, who when they can, do not shield from wrong those upon who it is being inflicted.' This concept, "passive injustice", is rarely actionable and easily evaded in collective consciousness. Complicity in a wrong allowed to happen requires little or no agency. When he documented the spread of passive injustice long ago, Cicero wrote "avarice is generally the controlling motive". This is the moral vacuum in which most judgements in American society ultimately take place.

The pursuit of happiness may be an inalienable right, but it leaves many individuals by the wayside, and when their unhappiness becomes unbearable, they often end up in court. Every trial is about an unhappiness that someone has been unable to stand, and every courtroom decision contains a mountain of misery for someone, either the victim or the defendant or the losing side; sometimes all three. The listening judge performs a poignant service in this regard- a service that becomes difficult to meet over time, or rather difficult to meet time after time. In the final moment of sentencing, the judge must encompass the collective misery brought into a courtroom and then, against the odds, find a way to articulate its meaning in a useful way for the participants and the culture at large.

Opponents of judicial discretion assume that mercy in sentencing injects arbitrary or unpredictable ingredients into the legal process. Mercy, in this hypothesis, draws upon Christan understanding of the term: "forbearance and compassion shown by one person to another who is in his power and "who has no claim to recieve kindness.", a definition in keeping with the belief that "God forgives a sinner even though the sinner has no right to such a reward."

There is, however, an older, less arbitrary conception, and it is the one that a knowing judge should employ in the moment of sentencing. The Latin term for mercy, still used in French, is misericordia. The term signifies heartfeltness for actual misery and situation as part of an innate human sympathy for wretchedness where it is found. Here, at the very center of the controversy, is the mystery and the least understood aspect of judicial performance.

The Trial In American Life by Robert A Ferguson; Univ. of Chicago Press,2007


  1. "For no offense whatsoever should any man be made a hopeless outlaw"

  2. My expectation is that the reader, once provided this brief though perhaps somewhat inadequate window into the key issue confronting our judicial establishment on a daily basis- whether it be on "Judge Judy" or at the U.S. Supreme Court- can confidently ignore the relentlessly repetitious folderol that always follows the nomination of a justice for the highest court in our land in the media.

    Rather, pursue the topics of passive injustice and misericordia in history, literature, science and religion. You'll have more fun and find a better ground for hope.