May 30, 2007

Due Process

Pretty fair piece by George Jonas on the sliding standards of due process in our courts (May 29 '07, National Post, Toronto, that ought to be enough information to google it successfully from any neighbourhood in the global village). But I have to say it baffles me why the only case in North American jurisprudence that seems to exercise Nat Post writers, these days, is the trial of the paper's former owner Conrad Black. I have to admit, having examined the evidence as it's presented in all our dailies, I'm unable, in spite of my considerable dislike for Conrad Black based on everything I know about him--much of which he confirmed and emphasized by giving press conferences to proclaim the innocence he is not ready to attest to in court under oath--I can't see, unless the newspapers are leaving a good deal out, where the prosecution has presented a case worth bringing before a grand jury hearing, much less to criminal trial.

But people--a class of law students takes up the examination of death row cases as a semester's assignment, and finds so many irregularities in five of them that the courts are obliged to submit them to appeal. Given the desultory nature of the project and the inexperience of the legal team, who's willing to bet this isn't the mere tip of the iceberg?

Guantanamo Bay is an insititutionalized violation of both the U.S. constitution and the Geneva accords. A senior state department official has explained why the U.S. is within its rights to hold a Gitmo suspect in prison indefinitely if his current trial leads to an acquittal. Rendition of prisoners to jurisdictions 'round the world which don't respect even the abusive norms of Gitmo and Abu Ghraib is more sinister still.

I think I recall as many as five columns in the Post around the time Black was first facing indictment, complaining due process was violated in the filing of charges. Some of the evidence they gave impressed me, but these were written a week to either side of a column by Barbara Kay extolling the trial and execution of Saddam Hussein as a triumph of natural justice. Not one of her colleagues on the Post--or in any other Toronto newspaper for that matter--pointed out that a trial in which three (count 'em!) three attorneys for the defense are murdered in cold blood pour encourager les autres is a triumph of natural justice in a pig's nether eye.

It's not on Saddam Hussein's account that it's monstrous to hold up his trial as exemplary. It's on account of the many people being run through the courts in Iraq (20 minute trials on average, from entry to the docket 'til sentencing) whose defense attorneys are in no danger of assassination because they have none, who have nothing like Hussein's visibility and who can be presumed guilty en bloc if you account the court that judged Saddam a triumph of natural justice. And this pertains to the sliding standards of due process in America why? Partly because the occupation ringingly endorses these courts, but mainly because American military personnel frequently appear in them at the prosecutor's table (well, there is only a prosecutor's table) as friends of the court. In vanishingly rare cases they may argue for clemency, but they're not there usually even to propose harsh prison terms. Generally it's execution they're after. If I believed in the death penalty, I'd still want a bit more than 20 minutes allotted for debate on the merits in individual cases.

So why all these column inches about a boutique case of possible injustice? If Conrad Black is convicted he's not going to serve time at Abu Ghraib or Gitmo. He's certainly not going to face a date with the electric chair. He's unlikely to be denied golfing or tennis privileges. Couldn't we widen the net of our concerns just a little--hmm?--when it comes to who in this world is entitled to due process of law?

C 2007 Martin Heavisides


Nonnie Augustine said...

Martin-I made it to your blog and I'm glad I did, but now that I'm here, I'll have to come back tomorrow and spend some time with it. It's already 1:45am and my brain is too foggy to read as I'd like. Looks good though. I'll be back. Nonnie

Martin Heavisides said...

Glad you could make it, and let me know when you've had more of a look. Cheers

Chancelucky said...

In most societies, due process has historically been a function of the quality of the lawyer you can afford.

One reason that so many death penalty cases convictions turn out to be wrong is that usually those are individuals who couldn't pay for quality representation, though many public defenders are excellent.

In our country, OJ Simpson was able to pay for a very good attorney and he got the full measure of due process in a California court. It's a weird kind of progress, but it was very different from the world that Harper Lee depicted two generations earlier in To Kill a Mockingbird.

The capacity to fan the media in a controversial case is also very much a function of one's access to the media. Obviously Conrad Black has excellent access to his own newspaper.

Martin Heavisides said...

Strictly speaking his former newspaper. Apparently he aroused a certain loyalty. (I really have to start giving a shitkicking to a few other local media--so far the only one besides the Post I've mentioned is The Globe and Mail.) Anyway, most of your points are well taken, though Simpson might have gotten more than the full measure of due process. What really gets on my tits (maybe I'll post a full analysis some time) is that a case like the Ford Pinto is never considered anything but a civil matter--and I doubt the total deaths attributable to everyone on death row, even insofar as they were honestly convicted, is half the 800 usually attested as the Pinto's killing toll.