Money Talks, Clients Walk
Langbein, John H., Newsweek
IN THE MEDIA HOOPLA THAT HAS SURrounded the O. J. Simpson murder case, the networks have subjected the public to a daily barrage of instant replays and supposed expert analysis--all of it from lawyers deeply entrenched in the modern American criminal-justice system. Our attention has been directed to matters ranging from Marcia Clark's wardrobe to the bickering of prosecutors and defenders. We have been lectured incessantly about the canards of racism and the past shortcomings of the Los Angeles Police Department. But the broadcast media's interpreters of the events have said not a word about the real lesson of the Simpson case--about the way the case exposes the deep structural flaws that prevent the American criminal-justice system from ever working well.
There are two defining (and interconnected) characteristics of American criminal justice that set it apart from the smooth-functioning systems of other advanced Western countries--Holland, Scandinavia, Germany, Switzerland and elsewhere. One is the failure to have a thoorough, impartial, judge-supervised investigation of the facts in the pretrial process. The other is the license that we give lawyers to engage in truth-defeating distortion and trickery at trial.
The framers of our Constitution, who guaranteed the right to a jury trial, would not recognize the system we have today. At the end of the 18th century, jury trial even for serious crimes was a rapid and relatively informal procedure, in which lawyers were seldom present. Jury trials took minutes, not months. Over the past 200 years, criminal lawyers have slowly and insidiously transformed the criminal trial into a monster so complex and time-consuming that we can afford to use it only for a handful of cases--especially for political pageants like the Watergate trials or Oliver North, and for rich guys like O.J. Simpson.
Money is the defining element of our modern American criminal-justice system. If simpson walks, as most lawyers think he will, what will have decided the outcome is not that O.J. is black, but that he is rich. He can afford to buy what F. Lee Bailey, Alan Dershowitz, Johnnie Cochran and the others have to sell: the consultants on jury packing, the obliging experts who will contradict the state's overpowering DNA and related evidence, and the defense lawyer's bag of tricks for sowing doubts, casting aspersions and coaching witnesses.
By contrast, if you are a not a person of means, if you cannot afford to engage the elite defense-lawyer industry--and that means most of us--you will be cast into a different system, in which the financial advantages of the state will overpower you and leave you effectively at the mercy of prosecutorial whim. If you are sufficiently destitute, you can have a state-supplied defense lawyer, and, if you are quite lucky, that person will be competent. But public defenders have huge caseloads that they could not possibly take to trial even if they wished. Depending on your jurisdiction, up to 99 percent of cases of serious crime are processed in the dirty back rooms of plea bargaining.
Our lawyer-dominated system of criminal justice has truly achieved the worst of both worlds. For the wealthy, there is the near-free-pass that elite defense counsel sells to the O.J.s and the William Kennedy Smiths of the world. For the rest of us, there is a system of barely restrained prosecutorial power, in which the prosecution is effectively judge and jury in its own cause, with no serious control on its power to force the defendant to accept the prosecutor's terms.
Ours is a criminal-justice system worthy of some banana republic where the rich often act with impunity and the authorities terrorize the peons at will. Knowledgeable Europeans look at the American criminal-justice system with amazed disbelief. …