Author Sadakat Kadri has it in mind to discuss the history
of criminal trial law in The Trial, his central theme being the conflict
between reason and emotion, and the ability of the law to "rebalance a
cosmos knocked out of kilter."
Unhappily, although Kadri admits
that the law has come to mean "reasoned deliberation," his discussion of
criminal law quickly veers into a dizzying discussion of philosophical
extremes -- punishment and mistake, justice and vengeance, secrecy and
spectacle, superstition and reason, brutality and dignity -- and stays
there to the very last page.
It is no secret that in early trials,
God was the judge. Kadri recounts the use of ordeal, where only the
innocent prevailed in combat, and only an innocent's wounds, after they
were inflicted, healed rather than festered. Kadri also discusses the
early form of evidence, whereby, during a "swearing" contest
(compurgation), a defendant's innocence was determined by those who
confirmed his veracity and good standing in the community.
But
Kadri accentuates the salacious and despicable aspects of his chosen
cases, and ignores all else. A sample of his chapter titles is
illustrative: "The Inquisition" (Kadri calls it "orthodoxy revisited");
"The Witch Trial" (from the "hushed monasteries and torture chambers of
Central Europe" to the terrors of Salem); and "The Trials of Animals,
Corpses, and Things" (litigation, for instance, against weevils
threatening Alpine vineyards, and "defunct decedents" who died before
their cases were called, but were nonetheless tried in
absentia).
Kadri's final chapter, "The Jury Trial (2), A Theater of
Justice," is perhaps most telling of all. Kadri has no faith in the jury
system because it is riddled with irrationality and "unreasoned" verdicts.
Moreover, a trial is an Alice in Wonderland combination of undefined leaps
of faith, random chance, illogic and the vagaries of human wisdom that
fill the chasm where evidence and due process should stand.
Kadri's
prime example of law-as-theater is the O.J. Simpson case. But to equate
the Simpson case with everyday trial law is hopelessly naive. And Kadri's
definition of justice -- that a visceral longing to convict the guilty
supersedes protection of the innocent -- flies in the face of our most
proven and revered Anglo-Saxon legal traditions.
Kadri's own
history gives us a clue to understanding his bias against trial law. He is
of Pakistani-Finnish extraction, born and educated in England, a member of
the New York bar, and a Harvard Law School graduate. He has represented
death-row inmates, prosecuted dictators and their regimes and written
award-winning travel books.
His experiences are wide, multinational
and multifaceted; but they are not deep, and they lack a balanced
perspective. He sees the bizarre, the depraved, and the mystical, and he
finds color and sensationalism in them. He also summarily ignores the
depth, nobility, reason and honor in the Western jury system.
That
is why he believes that equality before the law regularly loses out to
racial, sexual and financial bias, and that our trial system is doomed. In
essence, he despises the system because it is not perfect. He forgets, for
the first 345 pages of his text, his comment on the nobility of the trial
system as penned on his last page:
"Perhaps most potently of all,
the criminal trial literally enacts the meaning of human dignity, showing
a civilization that treats its most despicable enemies with respect --
presuming them innocent, confronting them as equals, and giving them a
champion to argue their cause."
Sam A. Mackie is an Orlando
attorney.