While President Bush and the Christian Right are attempting to wedge God into the nation's schools, other forces are busily and relentlessly pushing God out of the nation's courts.
On the surface, it seems God is still living in our courthouses. Most have inscriptions referring to God's presence. Even the Supreme Court has a prominent one. Witnesses are still sworn in, vowing "to tell the truth, the whole truth, and nothing but the truth, so help me God." This vow is firmly rooted in the Bible's Ninth Commandment, "You shall not bear false witness against your neighbor."
But is God really in the courtroom? Do witnesses tell the truth? Do those who bear false witness in court ever get punished? Do the courts really try to get at the truth, even a small part of it?
Unfortunately, five independent forces have intersected to create a powerful storm which is blowing both God and truth itself out of the nation's courts.
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Force 1: The Arithmetic of Crime. Because there are far more crimes each year than courts, very few criminal cases even get to court. The result is plea bargaining, in which prosecutors and defense lawyers agree to milder sentences than a guilty verdict would entail. As a result, the guilty plead to lesser charges, falling far short of telling the whole truth about their guilt. The innocent poor who cannot afford attorneys are often intimidated into pleading guilty to misdemeanors rather than trying to prove themselves not guilty against false felony charges. In this situation, the innocent are knowingly perjuring themselves, pleading guilty to something they are entirely innocent of. The prosecutor and overworked judges have combined to drive God and much of His truth out of the criminal court system.
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Force 2: The Growth of the Legal Profession. Because there are now so many lawyers chasing ambulances, soliciting damage cases on TV and advertising class action suits in newspapers, a rising tide of civil cases has overwhelmed the courts. The Constitutional promise of "a speedy and just trial" has given way to the seven year lag. Some cases have been known to last two decades. Witnesses move, or die. Memories get fuzzy and the "whole truth" evaporates a little each delaying month.
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Force 3: The High Cost of Trying Cases. Legal costs force parties to settle out of court, with settlement agreements having little relationship to the truth. Insurance companies routinely pay the claims of the guilty in auto accident cases, just to avoid legal costs. This has led to the growth of massive insurance fraud, which has cost the companies and the public billions of dollars each year. As a result, you are paying higher auto insurance rates simply because the insurance industry finds it more economical to bear false witness against a whole class of people than to force the truth out of the guilty.
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Force 4: Stultifying Court Procedure. As soon as a witness swears to tell the whole truth and is seated, opposing lawyers do their utmost to prevent his telling anything resembling the whole truth. All too often, a lawyer will demand simple "yes or no" answers to questions which require less polar responses. Judges happily go along with this castration of the whole truth. In many other cases, the money behind the state overwhelms the legal aid defense, resulting in inadequate defense questioning and cross examination. Obvious exculpatory evidence is not even found. In some cases brought in behalf of rich defendants, the money behind the defense overwhelms the state's resources, making a mockery of any hope of discovering the truth.
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Force 5: The Passive Role of Judges. Judges make little or no effort to discover the truth, preferring instead to act as referees or umpires. This fact was dramatized in the Judging Amy television series starring Amy Brenneman, whose mother was a Connecticut Juvenile Court judge for forty years. The cases in each program were drawn from the judge's actual cases.
In her role as a judge of the juvenile court, Ms. Brenneman had great leeway and latitude to question witnesses herself, something she frequently exercised to the dismay of opposing trial counsel, who seemed much more interested in procedure than getting to the truth. When Judge Brenneman was promoted to the criminal courts division, she continued to exercise her right to find the truth. In short order she overturned a previous judge's decision and reversed a jury verdict or two. Even though the truth came out, the chief judge called her into his office and informed her that she would be hearing very few future cases unless she underwent therapy from a "court psychologist." (Trying to ferret out the truth, the whole truth and nothing bit the truth tends to make peers think that you are crazy.) In the series, Judge Brenneman discovers in a therapy session that she really prefers finding the truth in "kiddy court" than masking it as a mere referee in the more prestigious criminal court system. She goes back to her former juvenile court and lives fairly happily ever after -- as happy as you can be realizing that promotion in the court system requires giving up the seeking of truth.
Will the courts ever find the "whole truth" again? Not unless we remove the formidable mound of boulders covering it. Boulders like the negative crime/court ratio, the overpopulation of lawyers, burgeoning legal costs, stultifying court procedure and passive judges.
Well, there it is, a world in which the expression "truth and justice" has become an oxymoron - an expression of two words which have opposite meaning (like "military intelligence).
While the concept of "intelligent design" would probably harm our educational system, it might go a long way toward improving our judicial system.
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