Sat | Oct 24, 2020

Orville Taylor | If juries are out, is justice in?

Published:Sunday | September 27, 2020 | 12:16 AM

Five years of study in a field, doing practicals and internships, then finally being adjudged by persons more qualified than you on multiple examinations finally gives you the official recognition that you have crossed the barrier, which finally allows you to be certified.

Unless you have completed that period of study, your brilliance in any other field doesn’t make you a psychologist, because without that master’s degree, you are not there yet. Although less-regulated, for now in this country, you are still a trainee social worker unless you have completed the Masters in Social Work (MSW) and finally, to be an entry level physician, you need a five-year double bachelor’s degree, an MBBS.

Lawyers do not require a graduate degree, but similarly need a kind of guided apprenticeship and tutelage before being let loose on to the unsuspecting public. And even after that, they have to undergo constant education via seminars. The two years spent in law school exposes the large chasm between those who have the Bachelor of Law (LLB) and even the worst of junior counsels.

Therefore, pardon my non-attorney intellectual discourse, but how can someone with a PhD in psychology, an LLB, or no degree except those on his thermometer, develop the sophistry in a few days or weeks to determine what are the ‘facts’ in a case? And don’t patronise me! In sociology and other behavioural sciences a fact might not be what the untrained considers it to be. Indeed, there is something called a legal fact.

Behavioural scientists refer to a concept called dissonance and I experience it whenever I try to understand why our legal system believes that juries of untrained legal minds can suddenly be knowledgeable enough to determine facts if a shooting victim dies. However, if they survive, even if they were shot multiple times by the assailant, it requires a bench trial with someone who accumulated years of post-law school experience.

ASK FOR JUDGES OR JURY

Now, for general information, let me observe that an accused in certain cases has the option to ask for either judges or a jury. This includes where one is stabbed repeatedly with extreme malice but miraculously survives. Of course, good defence attorneys will present alternatives to their clients and evaluate the likelihood of success. Equally, prosecutors must be concerned with which option will lead to a sound judgment in their favour, and in particular, one which will not be vacated on appeal to the higher court.

So here is my question. What would be the basis for fretting about a bench trial with a learned judge or panel of judges?

Last week, Chief Justice Bryan Sykes said that given the COVID-19 risk, no new jury has been empanelled since March, and with the high and rising numbers, there is no imminent change in this arrangement. He also noted that some lawyers have insisted that they will not move forward with a bench trial. Unusual times require extraordinary adjustments. However, ‘haste makes waste’; yet, ‘justice delayed is justice denied’. Importantly, according to Justice Sykes, under the Constitution, “there is no right to a jury trial; the right that is guaranteed is a right to a fair trial before a properly constituted and impartial court”. That is dictum to hold on to.

One of my best friends, who happens to be a criminal lawyer, in the most innocent sense of the term, baulks at the idea that an elitist judge, distant from the culture of the masses, could have enough insight to objectively evaluate a testimony from a member of the lower stratum, who disproportionately is found before the court on violence charges.

NOT DELUDED

Doubtless, while I am not deluded by any myth about judges being perfect, the overwhelming majority of Jamaican judges are sound, know the law and are honest. It is a bit ironic that many defence attorneys, including the two whom I share mic with on Hotline, are incredulous that the Transparency International survey said that six per cent of Jamaicans reported bribing someone in the category of judge. Of course, social science evidence and methodology get one closer to the truth than legal argumentation.

Many of us have seen strange verdicts, such as juries acquitting despite DNA evidence, body fluids on the victims, no evidence of shoot-outs and multiple stab wounds. On the other hand, mentally ill persons have been convicted by judges and other bench judgments have left police officers and prosecutors still stunned.

My suggestion is that we move past the anecdotes and grand narratives and have competent social scientists examine the efficacy of one model over the other. Lawyers cannot be judges in their own causes; neither are they trained in the research methods needed to add substance to this argument.

After all, we want truth and justice; not a system which privileges any side.

- Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.