Orville Taylor | Bench or jury?

A senior defence attorney stridently said to me, that under no circumstance would he support judge-only (bench) trials, because given the present scenario surrounding the makeup and operations of the judiciary, there are structural issues which militate against justice being administered for clients.

While not disregarding an interesting study on the reported venality of judges, by Transparency International, the concern of the elder statesman, was that separate and apart from the constitutional right to be tried by a jury of one’s peers, there are systemic biases. Given the fact that judges are human, their inherent ‘judgment’ can always leach into the way they see facts and even the rulings that they hand down. Indeed, there might be sufficient evidence though, to support the idea that the sentencing behaviour of judges, after guilty verdicts could correlate to certain sociological factors surrounding them.

After all, the standard belief in my discipline is that human behaviour is structured by the social environment, the milieu, and one’s socio-cultural experience always, if even potentially has an impact on one’s conduct.

Doubtless, there are structural biases in our judiciary. First of all, the last time I checked, there was an over representation of both Parish and High Court judges, who follow a career whose path begins as prosecutors.

Try as one may, the very fact of having being socialised through this crucible, at a minimum, create an attitudinal bias. In as much as there are canons of the legal profession which dictate that no one, including both defence and prosecution, should be able to lie or disregard the truth in making a case, we have seen enough to support the idea that prosecutors, hell bent on procuring a conviction, park logic somewhere on a distant shelf, with intellect in tow, and pursue matters which makes zero sense.

This is so even after the prosecutors attempts to explain the illogic of their action. In one very public case, primary evidence, of the highest quality DNA excluded two subjects. Perhaps, thankfully because I am not a lawyer and therefore not schooled in the practise of law, my own training describes such decisions with words deeply ensconced in the dictionary, and a few on the lips of the average Jamaican.

Prejudice is something, which behavioural scientists recognise as being natural, in that it emanates from once ‘naturing’ spirit. Thus, using a legal term many prosecutors could indeed grow up with a mens rea, a proclivity to naturally see the accused as guilty.

Notwithstanding that, however, as I went to great pains to explain to a young attorney some years ago, people are not sanctioned on the basis of their beliefs or prejudices. It is when those beliefs, orientations and prejudices translate into behaviour, that we have discrimination and bias.

All of us, however well-trained have to struggle against our own predispositions, practise cerebral hygiene, and act according to the rules, provisions and guidelines, which circumscribe our behaviour.

Of course, it would be hypocritical to suggest that these inherent biases influence outcomes of cases in the majority of trials. Nevertheless, our own humanity lets us down even once in 1,000.

Another structural bias in the appointment of judges is more societal. As with the rest of universities and colleges, my undergraduate classes suffer from an over representation of females. With higher graduation rates than males, there is a severe gender bias in the legal profession and this translates to appointments on the bench. My comments and observation regarding female domination, are the same when the gender specialists speak of male domination in areas where biological differences are not of significance in performing the tasks

Being a fish living in ‘water bottom’, the opinion of the senior attorney cannot be ignored.

Yet, this is hardly any reason to look askance at the judiciary.

Preferred jury trials

Quite counterintuitively, one veteran prosecutor said she preferred jury trials. In interrogating this idea, former Director of Public Prosecutions, Paula Llewellyn, once advised me that jury trials result in a higher rate of conviction than bench trials.

That is not so difficult to understand. As when trade unionists take flaccid cases to the Industrial Disputes Tribunal, lawyers, who understand that judges, usually more trained in the law than them, can smell a ‘fool fool’ case from a mile away.

So, why ‘pree’ when you know that you have a good chance of losing?

And this is the point where my chips are placed on a panel of judges; not a single justice in major felonies.

True, ‘peer’ reviews are a right. However, for sociologists, the word means sufficient socio economic commonality and importantly, a recognition that the other person and you belong to the same group; not merely a category. In selection of juries, bearing in mind that around 70 per cent of murder accused are inner city boys, who talk as if infected with goat DNA, why should a jury comprise housewives, shopkeepers and teachers.

If employees of the University Hospital of the West Indies are to face a jury, should the panel not only include people with graduate, preferably medical degrees?

Fact is, call a spade a spade, it is disingenuous for attorneys to say that law is complex and therefore very learned political scientists, do not understand the vagaries and subtleties of legal facts; but when it suits them, to assert that a crash course in ascertaining legal facts qualifies 12 people to be judges.

Much of what happens with juries is linguistic programming and mentalism if not practical psychology.

Finally, please do not tell me that the collective wisdom trumps everything. A panel of 20 lawyers or laymen, know less social work than one Masters in Social Work graduate.

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