Notes from the Field

Notes from the Field

by / February 28, 1997
Justice or Entertainment?

Wayne Hanson
We humans have a long history of converting "justice" into entertainment. Beheadings, whippings and hangings were once public events. And since Hollywood is the entertainment capital of the world, perhaps the recent O.J. Simpson circus was inevitable.

In "The News Hour with Jim Lehrer" version of events, O.J. Simpson was found "not guilty" of the murders of Nicole Brown Simpson and Ronald Goldman in a court of law. But in the subsequent civil action he was found "legally responsible" -- to the tune of $8.5 million -- for their deaths.

Then, in the "Network News" version, a pack of legal analysts explained to puzzled television audiences that this was not a violation of double jeopardy -- the concept that no person shall, in the words of the Constitution "... for the same offense ... be twice put in jeopardy of life or limb ...." The criminal trial was for a crime, said the analysts, but the civil trial was for a "civil offense."

These experts explained that a "not guilty" verdict in a criminal trial does not mean "innocent," only that there was insufficient evidence to prove guilt "beyond a reasonable doubt." In a civil trial, they said, only a "preponderance of evidence" is necessary to convict.

And finally, said the learned attorneys, Simpson's children were restored to his custody following the earlier "not guilty" verdict. However, since the civil court found him "responsible for the death" of the children's mother, custody will undoubtedly be reconsidered.

So it appears that losing one's children and being fined millions of dollars for a "non-crime" is not seen as jeopardizing "life or limb." Perhaps only a lawyer would understand how murder can be a civil offense. And when did "innocent until proved guilty" expire?

To compound the sense of unreality, the latest Simpson case is only a Hollywood remake of an earlier two-act drama. Millions of Americans witnessed the videotaped beating of Rodney King by Los Angeles police officers. Even though it was blatantly evident that the officers were out of control, the first jury found the officers "not guilty." Then -- in the inevitable Hollywood sequel -- the officers were charged in a separate action of violating Rodney King's "civil rights." This time, convictions were obtained.

But even a graphic beating on television could not compare to the "Hard Copy" version of the first Simpson trial. Spattered blood, racism, wife beating, charges of police conspiracy and planted evidence as well as book deals, jury tampering, pictures of a topless Marcia Clark, suspicions of love affairs, and all the other accouterments of a sleazy potboiler. DNA evidence -- poorly understood by the jury and vigorously attacked by the defense -- was ignored.

While all of this may have been compelling, few mistook it for justice.

So, aside from its entertainment value, of what use is justice? Justice creates a predictable sense of order and certainty -- not only that the guilty will be punished, the innocent freed, and all people will be treated equally under the law, but that the structure of government itself is basically rational, if somewhat flawed.

However, Ripley's Believe it or Not would be hard-pressed to come up with some of the absurdities that enter our courts. The woman, for example, who spilled hot coffee on herself at a McDonalds restaurant and sued for millions. Or the woman who drank a bottle of whisky each day during her pregnancy and sued the distillery for her child's fetal alcohol syndrome. People who fall off ladders and collect millions from the manufacturers, criminals injured in the commission of a burglary who sue the householders, and penitentiary inmates who file daily lawsuits against the correctional system for such things as broken lunch cookies.

Even states are getting into the act, suing tobacco companies for the costs of medical treatment of indigent patients, even though tobacco is a legal product with warning labels clearly displayed. A 10-year prison sentence, the newspapers patiently explain, means "eligible for probation in three years." And to bring punishment back to its grisly roots, there are now initiatives to televise executions.

In spite of the protestations of trial lawyers, their work is unequaled for sheer greed and absurdity. Guilt, innocence and personal responsibility are only footnotes to the theme: "from each according to his ability, to each according to his need."

Many suggestions have been proposed to shore up the lousy image of the justice enterprise, some of which seem to be working -- three strikes, "truth in sentencing," and emphasizing "quality of life" offenses as in the New York City article on page 18 of this issue. Tort reform is sorely needed to remove incentives for "get rich quick" lawsuits, whether it's phony needles planted in cans of Diet Pepsi or lawsuits from overweight theater patrons who can't squeeze into seats.

Courts also need to increase their use of computer-aided transcription, networked case data, case management automation, online dockets, and computerized presentation of expert testimony. As former Attorney General Edwin Meese said recently (Government Technology, February), "Just think, for example, if the information on DNA that was laboriously taken out over more than a week in the O.J. Simpson case had instead been presented in a single day using animation and ... other similar multimedia techniques." Remember the animated sequence on DNA in Jurassic Park? That's an excellent example of how Hollywood and its technology could contribute to justice, rather than detract from it.

But while many technologies can be of great value to justice, broadcast technology is not among them. Let's eliminate cameras from the courts and make better use of technology to streamline clumsy paper-intensive procedures.

Thus far, we've had "lawyer jokes" and rising liability insurance rates. But if the public's trust in our justice system is not restored, we risk much more. Crime rates have fallen in recent years, so why is crime at the top of citizen concern? It may not be fear of crime as much as the uncertainty of justice.