Wednesday, October 5, 2011

Law and Disorder

It's difficult to comment intelligently regarding the curious case of Amanda Knox based solely on what one has read or heard in the media.  The Italian justice system itself seem most curious to an American lawyer, but the case seems peculiar also given the sensational way it has been treated, seemingly by everyone.

It may be the Italians are particularly disturbed by the result and the publicity given the result due to the fact that their system of justice is evidently the target of their own Prime Minister and his supporters.  Their complaints that their system is being unfairly compared to the American system is to a certain extent understandable.  Our system has its own problems, and we have had our share of sensational trials as well.  The comparison of this case to that of O.J. Simpson is inevitable; I'm a bit surprised that Casey Anthony has not yet been mentioned in the media, but perhaps it has been by someone, somewhere, and I'm not aware of it.  The contention that the wealthy benefit more from the law is hardly new, though. 

However, if it is indeed the case the impartial, court-appointed experts (as opposed to experts retained by the state or defendant) found the evidence to be fundamentally unsound, it seems the outcome here is quite understandable.  It isn't clear on what grounds the decision on appeal can be criticized on any legitimate basis.  It doesn't give the victim's family what we have come to call "closure"; it fails to explain some things about the crime; it seems to indicate the police handled the investigation incompetently; it makes the prosecutor appear to be something of a fool.  Regardless, though, it seems to establish that there is inadequate evidence to support conviction.  "Not guilty" does not mean "innocent" of course, but it does (or should) mean not incarcerated.

That should be all that matters, that should be all that is meant, but it is not.  It is being portrayed as much more, even as a clash between two cultures, and may be an indication of the extent to which the United States and its citizens have become hated by the rest of the world for various reasons, not the least of which is its (and their) tendency to throw its (and their) weight around.

I'm inclined to think that Italian males have a view of the female which is somewhat weird.  They are notorious for goosing unsuspecting women on the streets and whistling and commenting, generally making nuisances of themselves in a loutish manner whenever a good looking woman appears.  They seem to think that this is to be expected from them as males, in which case it may be maintained their view of the male is somewhat weird, as well.  A fascinated emphasis on sex seems to have driven certain aspects of the investigation and the prosecution; lurid references to the defendant and her sexuality have abounded to an extent which seems extreme.  This emphasis and conduct seem to me to cast doubt on the way the matter was handled by the police and prosecution; it makes them appear incredible and indeed irrational--the appeal was not to the nature of the evidence but to some kind of fantastic perception of what may have happened.

It strikes me that in certain cases at least, the more attention is given to a trial (and this necessarily means media attention) the less likely it is to result in a fair and reasoned decision.  This raises issues concerning the role of the media and the public in the administration of the justice system.  A democratic system requires that the media and public have access.  But there clearly are instances when they become so directly involved in a trial that all perspective and commitment to ascertaining the truth is lost, by all--lawyers, judges and jurors.  In other words, there are instances when the rights of the media and public conflict with and prejudice not just the rights of the state, but the rights of defendants.  In criminal cases, the rights of the defendant should be paramount, at least under the American system.

Perhaps defendants should have more of a say in the extent to which the media can actively participate in and possibly prejudice a trial.  Perhaps not merely jurors, but lawyers and judges, should be sequestered as much as possible from exposure to the media as well as prevented from making appeals to the media.  I don't know what to propose, but I think that there is a propensity to make a circus of a trial and that this propensity becomes more and more of a problem in these days, when commentary and reaction are instantaneous.

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