Wednesday, July 13, 2011

The Slippery Grip of Justice

Justice is an ideal that sometimes sacrifices itself in the name of fairness by freeing the guilty to preserve the innocent.


Casey Anthony (center) on trial for the murder of her daughter.

It's 1:15 pm. In a tense courtroom in Orange County, Florida, Judge Belvin Perry very calmly reviews the verdict handed down by a jury. It is the case of Casey Anthony; a young woman charged with murdering her daughter. The judge dispassionately passes the verdict on to his clerk with a stern command to read it aloud. Shockingly, the verdict is that she is not guilty. How is this possible? Is this a failure of the justice system? No it is not, and I will tell you why:


Millions are outraged at the outcome. Everyone was sure she was guilty, but their outrage is misplaced. That is the nature of justice. If the simple minds caught up in the tense courtroom drama had any idea what justice really is, then Batman would've been a real person by now.

Why did Casey Anthony go free? Simply because there wasn't enough evidence to prosecute her. Despite the fact that we all feel deep within ourselves that she really deserves to die, we must concede that what we feel on the inside is not just. That's vengeance — an emotional response. If the tables were turned on us and we didn't commit the crime, we too would be hopeful for such impartiality in the evaluation of the evidence. Our acquittal would be joyous.

...even if it outrages the masses.

Let's assume that despite the lack of evidence to the contrary that Casey Anthony really didn't commit the crime. What if she was being falsely accused? What if it was just circumstantial suspicion? How would you feel afterwards about adjudicating this young woman for a crime she didn't commit? How would you feel about sanctioning the execution of this young woman?

Our reaction to a crime is a cumulation of mob physics. Emotions run high and our empathetic instinct kicks in. We automatically side with the victim, regardless of our ignorance of the real perpetrator. This is how innocent people are convicted. It is why the nearest black man is always rounded up in a liquor store robbery or why a snobbish old white man is the presumed rapist of a helpless hotel maid. It happens all the time. This is where justice finally comes in.

What is Justice?

You can consult the dictionary if you want. Have a gander at the Wikipedia entry if you are so compelled. However, I am going to wrap up all these itemized definitions into one sentence:

Justice is an ideal that is rooted in the fair administration of the people based on the regionally accepted principles of ethics.

I like this definition because it is simple, clean, concise and relatively accurate based on our cultural expectations. However, as much as I am the author of this particular expression (and while it is based on official definitions of Justice), it is also inherently flawed. Why would I call myself out on a flawed definition of Justice? Well that is quite essentially the point of this post:

Justice is an impossible goal.

The Flaws of Justice

Remember that beautifully concise definition I gave earlier on justice? Well now I'm going to tear apart the very idea of justice to show why it has and always will be an impossible goal:

Flaw #1: Justice is an ideal

I only recently completed a series of posts on why happiness is an impossible goal: because it is an ideal. Similarly, Justice is an ideal, as are equality and perfection. These abstract nouns describe a state that cannot possibly exist in the real world because they are based on the human propensity to create ideas devoid of real world detail. This is due to our inability to process all real world detail. All "ideals" are incompatible with the real world for this reason.

Apropos, when we talk about Justice as an ideal, we are talking about an abstract idea in which (in this particular case) the innocent are justified and the guilty punished. But how can you create a set of rules that flawlessly achieves both objectives? Well that's where the rules of justice break down. Unlike the laws of physics, the rules of justice cannot really account for human uncertainty. This is why sometimes the innocent are punished and the guilty justified.

Flaw #2: Justice is fair

The idea of fairness is instinctive. Even lower animals are aware of fairness at a subliminal level. Therefore, it is only reasonable that any talk of justice automatically includes fairness. In fact, it is reasonable to deduce that fairness is intrinsic to justice. Take away fairness and all we are left with is controlled vengeance, especially as it pertains to the trial of some suspect.

Consequently, to be fair in justice, whatever rules are decided upon must apply equally to all suspects, whether they are presumed innocent or guilty. However, to avoid the great cost of punishing the innocent, the principle of ethics used in westernized justice systems suggests that all are innocent until proven guilty. The punishment for guilt will ruin someone. Therefore it is better to wrongfully free the guilty than to punish the innocent. So certitude is paramount.

The methods through which certitude is determined involves the provision of proof. In the absence of proof, the accuser then has the burden of proving guilt. Otherwise, any accusation can be made of anyone and they could be permanently (and wrongfully) ruined because of it. What this means is that justice is an ideal that sometimes sacrifices itself in the name of fairness by freeing the guilty to preserve the innocent. It is selecting the lesser of two evils.

And now you know why justice is an ideal.

Flaw #3: Justice is based on regionally accepted principles of ethics

In Saudi Arabia and many other Muslim countries, the rape of a woman is not a crime. Women are literally seen as being the property of a man. Such are the principles of ethics set out by Sharia law. In the west, the principles of ethics liberates women as free thinking individuals that are not the property of anyone. Which of these ethical principles is better than the other?

Is that even a reasonable question?

In the west, we will quickly adhere to the concept that women are free to do as they please. However, under Sharia law, men are never wrongfully accused of rape to exact vengeance for a petty quarrel. In the west, because women are free agents and are always seem as victims, any woman can accuse a man of rape and he would be held by law officers without question.

So Sharia law is not without merit.

This is the slippery slope of ethics. How can you determine that something is wrong? There's nothing inside us that instinctively tells us that it is wrong to do something unless we are conditioned to believe that it is wrong. This is because evil is a function of human nature. It is our natural instinct to do that which benefits ourselves the most, whether it is right or wrong.

In fact, goodness (also an ideal) was born out of evolutionary necessity. If we were all selfish, then none of us would have evolved into modern men. Goodness is not an intrinsic property of being human. Goodness is really a utilitarian principle that was determined after early men discovered that being less selfish has a greater benefit to the community. Other early tribes relied on selfish acts to determine who among them would ascend to become the next leader.

So ethics is also relative.

This is why Muslim men have no scruples about subduing their females and consequently why a woman going through a divorce in the west has no scruples about taking half of everything a man has worked so hard his entire life for. Sharia law protects its men and our western law favors its women. No version of either law can ever be fair to either men or women, because there's no such thing as equality. Remember, equality is simply an ideal — just like justice.

If ethics is relative, then justice is also relative. That's part of the reason why even within the western justice system, we tend to have a hard time proving something to be wrong. We know that murder is wrong, but we have to prove it was murder. To avoid punishing the innocent (flaw #2), we have to assume the accused is innocent by default. By contrast, in some European countries (such as Italy), you are guilty until proven innocent. Is that fair?

If your child died accidentally and you displayed poor judgement after its death, should you be convicted of murder, manslaughter or acquitted? If Casey Anthony was being tried in Italy, she would have gotten the death sentence, because their relative justice system favours guilt over innocence. This means they probably execute more innocents than America. However, in America, the system tries to protect the innocent, which means that some of the guilty go free.

The Casey Anthony Trial

Pitiful doe eyes win trials. Casey Anthony on trial for murder. © Reuters

If we were allowed to punish Casey Anthony as we think she rightfully deserves, we would be taking away the ideal of fairness from justice, thereby reducing it to nothing more than state controlled vengeance. Her trial would be a sham, since she would be guilty just by virtue of being accused. There is absolutely no evidence tying Casey Anthony to the murder of her child.

None, whatsoever.

While even I was confused about her conviction for lying to the police in light of her acquittal for murder, even that wasn't inexplicable. At the risk of sounding like I'm defending her, it is possible that Casey's child died accidentally, but simply became fearful of being indicted for negligence, and so lied to police. Therefore, while lying suggests culpability, it's still not proof. Circumstances can insinuate guilt, which is why someone may lie preemptively in self defense.

It happens all the time: "It's not what it looks like!"

Therefore, a common strategy in these cases is for the defense team to stall the trial date for nearly as long as the number of years for each accumulated count for which they are certain that they have no case. Therefore keeping her locked up for nearly four years was a brilliant strategy in the event that she was acquitted. It meant an early release after the trial ended.

Now when dealing with a case like this, we have to be fair, even if it really means acquitting someone who in our gut feels like the guilty culprit. It is possible that Casey Anthony simply did a good enough job removing any incriminating evidence tying her to the murder of her child. It is not impossible. If you recall the OJ Simpson trial of 1994, OJ Simpson was acquitted.

Now let me be clear: I am of the opinion that Casey Anthony did in fact cause the death of her daughter. In short, based on the circumstantial evidence that was presented, Casey Anthony appeared to have been negligent (criminally negligent, I believe) in her daughter's death, but not with malice. It appears quite simply that Casey Anthony just wasn't ready to grow up yet.

The trouble was, as was with the OJ Simpson Trial, that the prosecution simply could not prove, outside of circumstantial evidence, that Casey was indeed linked to the death of Caylee. We all know she did it. She knows that she did it. Her defense lawyers know she did it. However, to keep the justice system fair, you cannot convict someone on circumstantial evidence or else it will become a precedent for a trial that may then convict someone innocent.

These tears are real — but they are not tears of loss. The facial expression isn't one of sorrow.

With that said, every player in this game (for that's technically what it really is) is merely trying to work with the rules to achieve their objective. While it is very clear to me that Anthony's lawyer, Jose Baez, was literally flailing in the dark leaping from one ludicrous proposition to another (from a preposterous incest allegation to an inexplicable drowning theory), the pitiful prosecution was gasping for air. It was painful watching them fail at connecting all the dots.

However, the incompetence of the prosecution is what enabled the defense. This is why I was rather perturbed at the arrogance of Jose Baez, Casey's defense lawyer. Not only did this goon embarrass the Anthony family (incest? really?) more than their eccentricities already did, but he felt compelled to take credit for allowing justice to prevail. Sometimes I marvel at the audacity of incompetence. I thought both teams (prosecution and defence) were quite a joke.

The leaps in logic of the prosecution team rival the best of cartoon physics. They were able to prove that Casey was a pathological liar. They were able to prove that she was a bad mother. They were able to prove that she could care less that her child was missing. From all that, they had to leap over an obviously missing link to prove Casey's culpability for murder. Needless to say, the jury made the right decision. The case wasn't a "slam dunk" as thought.

Either way, at the end of the day, the American Justice system is the most utilitarian system on the planet, because it recognizes the necessity for the accused to defend themselves. Therefore, they must be proven to be guilty of the crime for which they are accused. Ergo, the burden of proof lies with the prosecution, who must clearly prove that the accused is guilty.

This is what most people following this case fail to understand. This goes doubly true for those who are mothers. Now I know that by virtue of being a man that I can't be a mother. But as a human being, I can empathize with their plight. At the same time however, I'm not an idealist. My view is unapologetically utilitarian. I would not sacrifice a justice system to crucify just one person for what I believe is just, only to have it fail someone else who may just be innocent. That innocent person could be one of the angry mothers adjudicating Casey. It could be me.

This is why I simultaneously understand the outrage at Anthony's acquittal, but at the same time, must back the rule of law. Every ounce of outrage at this trial's outcome is misplaced. All the people questioning the competence of the jury and the sanctity of the American Justice system are merely venting emotional rage. It is not that the justice system has failed us all.

It is the prosecution who failed to harness it. That brings me to my next point;

The Psychology of Jury Duty

The seating for the jury of the Casey Anthony trial.

If I were on that jury, I would probably have also voted not guilty. It wouldn't be because it was the easiest decision. The easiest decision would be to vote guilty. It wouldn't be because I wanted to get off early. Voting guilty is the easiest, quickest decision because it relies on instinct — not proof. I don't think I could sleep at night voting someone to death with poor evidence just because I wanted to be let off the Jury duty hook to pursue my other interests.

With that said, virtually every negative criticism leveled at the jury was nothing more than angry, irrational ventilation. It is irrational to argue that the jury was incompetent, since based on the instructions given to them, the evidence against Casey was merely circumstantial. One may argue that they were swayed by Casey's youthful good looks. But the prosecution's disjointed arguments probably did far worse. Her closing arguments were incoherent at best.

The Jury was instructed that circumstantial evidence is not the same as proof. Otherwise, I could be equally culpable of plotting the 9/11 attacks if I was a Muslim that was in the building only a few weeks before the planes struck. If that sounds preposterous to you, then you should likewise understand why it is preposterous to certify that Casey murdered her child.

I have no doubt in my mind that Casey was involved in her child's death, but I cannot prove it (and neither could the prosecution). That's reasonable doubt. Therefore, as much as I would love to prescribe the lethal injection to this bad mother (who had the audacity to go partying while her child was dead, without concern for its whereabouts), I must weigh the evidence.

...not my feelings.

If I did not weigh the evidence, then Casey would have been justly executed by my feelings and the euphoria whipped up by the media circus would have been insurmountable — but the justice system would have failed. Can you spot the difference? If Casey had been convicted of murder, we would feel that justice was served, but not because the system was successful.

It would be because we got revenge.

If we cannot rely on an impartial system for administering justice, then we are no better than thronging mobs that would take justice into their own hands and execute someone accused of a crime without any impartial review. Every reaction on Twitter, Facebook and Cable TV is just a modern angry mob clamoring for her blood from a system designed to protect the innocent.

Therefore, what the Jury did was brave — not stupid. One juror was very frank about it. She exclaimed that they all felt that Casey did the crime, but the evidence was underwhelming. In a sense, one can argue that the jury did what suited their conscience best: acquittal over lack of evidence, versus conviction despite that lack. To deliver a conviction would be tantamount to sentencing themselves to a slow, agonizing death by their own unforgiving consciences.

We on the other hand, sitting outside that jury circle have no such weight on our consciences. We face no risk from potentially derailing the system to feed an instinctive blood lust. We face no repercussions for demanding the blood of a woman we have never met and would have probably never met, save for the trial. We just want blood to avenge that innocent, little face.

But I promise you, once you sit in that juror's chair and you have to decide on whether or not someone has to die based on a crime they say they did not commit, your psychology changes. You want to be damn sure that the evidence is worthy of a conviction. But the prosecution failed to even determine how the child died. So how could they possibly deliver a conviction?

Look: You're a warm blooded human being. The only reason you can sit and judge so quickly is because you're doing so from the comfort of your own home. You wouldn't be able to stand the guilt of knowingly putting someone to death based on pure speculation. You also wouldn't be able to stand the impact of having to acquit because there simply was not enough evidence.

It's easy to judge when you have nothing to lose.

Miscarriage of Justice?

However, despite the fallout around this case, the real issue is not that Casey Anthony was acquitted. The question is how did her daughter die? We know how OJ Simpson killed those two people. We have a pretty good idea of how Scott Peterson killed his wife. But Caylee Anthony is a mystery. She is the real victim here. Her mother was acquitted because of a lack of evidence, and her death goes unavenged. So even though justice prevailed, it also failed.

How is that even conceivable?

This raises an important question: What are the key success factors of a justice system? This is impossible to measure, since justice by one view equates to injustice by another. So we have to ask ourselves an important question: How do we appease those who the system failed? People will only view the justice system as a success when they have been avenged.

People will also only think the justice system works when they have been exonerated of a crime they did not commit. If Casey Anthony really didn't kill her daughter (or at least cause her daughter's death), then how can we create a justice system that would satisfy both those who are innocent and others who are to be avenged? The truth is, we can't. It's impossible.

I'll tell you why:

The Villain Complex

Everybody loves a good villain; real life ones even more so.

Every individual has their own preconceived notion of what justice should really be. Most of the time, these notions of justice are both narcissistic and irrational. They rarely involve any version of the ideal that benefits everyone. At best, most people view justice in terms of their own community group, where they consider themselves oppressed, whether they are or not.

If you talk to some people, they often make references to some nondescript villain such as "the man" (often a loose reference to big corporations), "big brother", white people and the government as sources of injustice. In most cases, these people have struggled through their lives — but not because of any of these bogey men. These injustices only exist in their heads.

People love to hate someone. Having an enemy defines their existence. Some have taken this to a whole new level, creating conspiracy theories or waging a self deluded open war against their enemy. Whether they are Black Nationalists, extremist right wing militias, Neo Nazis, KKK or Al Quaeda, the paranoid delusions of injustice can incite people to do some horrible things.

This is why it is so easy to hate people like Casey Anthony, Dominic Strauss-Khan, OJ Simpson, Scott Peterson and Osama Bin Laden. With the one obvious exception, most of these people aren't actually as dangerous as they were paraded to be. The media circus surrounding Casey Anthony caused moms all over the world to hate her with a contemptuously unbridled passion.

However, this vilification of a common enemy is really born out of a survival instinct. Thousands of years ago before civilizations had learned the art of diplomacy, banding together with your country men often made the difference between life and total annihilation. The sensationalism surrounding the Casey Anthony trial meant that nothing short of a guilty verdict would pacify the rabid masses. The incessant media coverage whipped everyone up into a blood thirsty stupor. So then how could a rational justice system possibly have pacified an irrational crowd?

It can't — not even with a manslaughter verdict.

A system based on impartial review of evidence is only flawed by its impartiality. While it is designed to be fair, it is only as good as the information available to it. The justice system only works in an ideal world where there is a preponderance of evidence. That is the only time it achieves the ideal view we have of how justice should work. It also only works when all of the people administering it are genuine. Corruption in the justice system is not exactly uncommon.

Real Injustices

Chinese petitioners who were displaced by the government for the 2008 Olympics.

With that said, Americans have a lot to be grateful for. In communist China, the government had established petition offices to administer many cases of injustice. These are places where people can line up to report an injustice with the hope of getting some legal relief. However, these petition offices are nothing more than a sham. Some have even petitioned for decades.

The people who come to these offices are often arrested, imprisoned, beaten and sometimes killed. Human rights activists have been trying to expose these atrocities in China for decades. In 2009, the Chinese government hacked into the G-Mail accounts of some of these people. Before that, in 2008, the petition offices and the villages established to house people making petitions were destroyed to make way for the Bird's Nest Stadium in time for the Olympics. 

I kid you not.

If you are an outsider, getting arrested in any of the ASEAN states will be a rude awakening. In most of those countries, capital punishment and the cruel and unusual treatment of those incarcerated would make getting locked up in a Miami Jail with thugs and killers seem like a sweet Sunday afternoon. Imagine being put to kneel on bottle caps while having your bare feet flogged with a bamboo branch for an offense as innocuous as disobeying a street sign.

In other places in the South Pacific, the inverse of the American justice system is what applies. You are guilty until proven innocent. There is no provision for reasonable doubt. In others, simply walking around with a camera or accidentally walking across a border region is enough to have you arrested for being a spy. In those countries, when the government accuses you of a crime, you are instantly convicted, and usually without any representation. The trial that follows is only there for international spectacle. It is a sham only made to appear to be fair.

In most Muslim territories, being accused of murder is an instant death sentence — whether you are innocent or not. Again, representation is only done for spectacle. In fact, in some European territories, being a foreigner accused of a serious crime usually and automatically equates to a conviction. Again, the rule of law here is that you are guilty until proven innocent.

I only mention that to give some perspective.


Minority Report (2002) — where justice is dispensed before the crime is committed. Wait, what?

The justice system upon which most westernized countries are based is not perfect, but by comparison, it is a far cry from the nonsense that many other developing, non westernized countries call justice. Making it flawless requires more than re-examining the laws because of its inextricably human element. Perfecting it requires something bordering on science fiction;

...something like precognition.

In the 2002 film Minority Report, Tom Cruise plays a detective who prevents crimes before they happen. That sounds like a perfect justice system, unless you consider the obvious ethical caveat — the crimes are never actually committed. So how can you arrest someone for a crime they have not yet committed? Cruise's character finds this out the hard way when he too is sought for a crime that he hasn't yet committed, until by cause and effect, he inexorably does.

Quantum time warps aside, this brilliant film illustrates precisely why it is impossible to achieve justice, even within the realm of science fiction, where everything is possible. No single justice system, however perfected, will ever appease everyone. This is why we are left with no choice but to stick to the system that we have: The accused is innocent until proven guilty beyond a reasonable doubt. It cannot be perfected any more without becoming a vigilante like Batman.

Every criticism that the justice system failed because people like OJ Simpson and Casey Anthony walked is nothing more than emotional exasperation over the need for vengeance. That doesn't really mean anything. Emotional responses are what create mob justice — and mobs are too emotionally compromised to be fair. That's why there's law to preserve order.

That's also why no one should take former prosecutor Nancy Grace seriously. She's a TV star now. Her credibility is automatically compromised by fact that she is in a business that thrives on viewership numbers. She is an embarrassment to the system. Marcia Clark (the prosecutor who famously failed to convict OJ Simpson) also curiously weighed in on the matter, citing that Anthony's acquittal was worse than OJ's. I chuckled a bit when I considered the hypocrisy.

However, if we were to take justice in our own hands, that is the only time the justice system will have failed. It wouldn't fail because someone wasn't avenged. The system would only fail when people refuse to use it. That Casey Anthony and OJ Simpson walked is largely irrelevant. OJ met his demise at the hands of the same system that acquitted him years earlier. So the justice system is not a failure. Casey Anthony may walk next week, but she too will get hers.

It's only a matter of time.

E-mail: accordingtoxen[at]gmail[dot]com

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