Tuesday, February 12, 2013

It's About Justice Not Process

During the height of the Occupy demonstrations, I took to using a slogan that I derived from the Egyptian Revolutionary movement and other social efforts going on prior to, during and after the Arab Spring

Such simple, indeed obvious, concepts but so far from realization in the modern world, even after the Revolution comes, as it did to North Africa. The reasons why are topics for many other days, but for now, let the topic be JUSTICE. For that is what the Dorner Thing and many other seemingly spontaneous or random acts of vengeance and violence are all about.


Dorner's central claim as stated in his purported manifesto is that he was wrongly accused of making false statements and unjustly fired from the LAPD in 2009, and that he attributes that injustice to institutional racism, the Blue Line of Silence, corruption, and the dishonesty of a long list of LAPD personnel.

His claim resonates strongly with practically anyone who knows anything about the LAPD.

Whether his case was as described in the manifesto is impossible for those of us not involved to know, but most of the relevant court documents are available online, and they paint an unpretty picture that is ambivalent about the facts of Dorner's claims but deny him any and all recourse from being terminated from the force.

The internal investigation of the incident in question -- in which Dorner asserted that his superior and trainer kicked a mentally ill suspect several times during the course of a messy arrest -- found that it could not establish with certainty that the kicks occurred. Witness and victim testimony was inconsistent, the officer who was accused of kicking the suspect denied it, and there was no written report (or video evidence) that indicated that the suspect had been kicked by the officer taken at the time of the arrest.

From the evidence of the documents so far, Dorner had ample due process -- during the internal investigations, the LAPD's Board of Rights hearings, and during a number of court actions and appeals. The process could hardly have been more complete. But process is not Justice, something lawyers and devotees of process are widely unable to understand or accept. And Dorner's claim is that despite all the process he received, he did not receive Justice.

He put it very simply and poignantly: "I never lied." From the evidence in the documents and what has been said about Dorner's character by those who know him, that's probably true, he didn't lie about what he witnessed and reported.

But the Board of Rights determined that they could not establish with certainty that he told the truth.

And thus, he was fired.

Think about that. Someone within a police department can witness and report abuse such as kicking a mentally ill suspect, but unless there is sufficient visual and/or written evidence at the time of the incident to establish with certainty that it took place as described, the police witness to abuse will be (not may be, will be) subject to disciplinary action, up to and including termination, for "making a false report."

What sort of Justice is possible under such conditions? Naturally, most incidents of abuse will not be reported at all under the circumstances. And isn't that the point of threatening with termination anyone who does report abuse without also having airtight evidence?

Process can go merrily along, regardless. Process usually produces results, but those results are not in and of themselves Justice. And when injustice is the frequent or typical result of process, rebellion and revolution are almost inevitable.

Lawyers, particularly prosecutors, for their part seem incapable of even imagining such a thing. To many of them, the process itself results in justice; there is no other way to find justice except through established legal process (for example, through our adversarial courts, or the intricate and arcane investigative rules surrounding police misconduct) and whatever results from that process is by definition Justice. Even when the result is self-evidently unjust. Which more and more frequently in our corrupt and dysfunctional system of "justice" is the result.

Charlie Beck claims he will reopen the process to make sure it was done right.  Not to make sure that the result was just. This is related to the infamous Scalia observation that there is no legal reason why someone who is factually innocent shouldn't be put to death if all of the legal process was done correctly.

In other words, actual Justice doesn't matter so long as process and procedures are followed correctly. If the process and procedures produce arbitrary and/or unjust results, oh well!

I've wrestled with this issue many times online, challenging some assumptions about process and justice along the way. My father was an attorney and a JAG officer during WWII and Korea, and while the common snark is that "military justice is to justice what military music is to music," he said that actually, as imperfect as the military system was, it was intended to and designed to produce justice, and from his experience, that's what happened more often and more dependably than in the civilian court system. I know from the experience of other family members that it doesn't always do so, however, and that the military system can be abused and manipulated to accomplish patently unjust ends. Whether that potential for abuse outweighs its ability to produce justice I'll leave to others to decide.

I brought the reality of military justice up when there was so much controversy over military commissions at Guantanamo charged with meting out justice to terrorist suspects. The commissions were deeply flawed, there was no doubt about that, and some of the officers assigned to them said so in no uncertain terms. A few even refused to participate in them and many observers called them farces and charades, kangaroo courts and worse.

But something surprising happened in the few cases that actually went through the commissions: though they lacked many of the rules and attributes that we would commonly associate with fair trials, oddly enough they produced something much closer to Justice in the few cases they adjudicated than the civilian courts did in many cases of terrorist suspects they handled. Indeed, the commissions, though hardly even a shadow of a fair trial as commonly understood, tried to get to the bottom of the accusations against suspects held at Guantanamo and quite surprisingly ordered their release or imposed very light sentences when they discovered that the accusations were undersourced and overblown.

In civilian courts, on the other hand, false accusations and entrapment were routinely used to convict and sentence suspected terrorists in case after case, in embarrassingly unjust show trials, over and over again, and that system was being held up as the one that should be utilized for the Guantanamo detainees, because it's process was the proper one -- regardless of how unjust the results.

I wrote about the case of Sir (later, Saint) Thomas More as an illustration of how far from Justice a devotion to process can be.

It seems clear that a failure of Justice was the catalyzing element in Christopher Dorner's rage against the LAPD. Enormous numbers of people appear to be very sympathetic with his cause because they know just how far from justice the culture and behavior of the LAPD has been for generations. They know how corrupt the institution is, how venal, how brutal, how unaccountable. Yet Dorner was apparently afforded ample due process, numerous hearings, court appeals and so on. Never, so far as we know, throughout this ordeal was Justice more than an abstract consideration. It was all about process. Following rules of procedure. With an apparently unjust result. And an attitude of "Oh well! Bye bye!"

This isn't a "madman," this is a man who has suffered a gross injustice from a system that he had put his faith in. There are almost too many Americans to count who have suffered something similar, not to mention the millions around the world who have suffered or been exterminated by American "justice." Dorner's cause resonates because there have been so many victims of much the same thing as he went through, not because they approve of his radical tactics in getting revenge.

The defenders of that system, however, seem to be incapable of appreciating how inhumane and unjust it often is, and how ultimately unreformable it is. Instead, they will focus on some individual or attribute or mechanical device -- Dorner or police misconduct or drones or whatever -- asserting that if only Dorner were taken out or police were better trained or drones were eliminated, or something-something something-something, then things would get back to normal and be OK.

No. In my view the systemic and institutional failures are too severe to stay focused on the superficial and never probe the rotting foundations of it all.

The Catholic Church would rather lose its head than probe its own rotting foundations, so it's easy to imagine how difficult it is for LAPD or many other failed secular institutions to do the right thing.

Another Christopher was laid to rest yesterday -- Chris Kyle, the American Sniper -- and so many thousands turned out that they had to conduct the service in a football stadium. Think about what he did to gain his notoriety. He saw it as "justice."

Was it?

And think about what Chris Dorner is accused of doing. He apparently said he saw that as Justice.

Was it?

(In the case of Dorner, what he has actually done -- as opposed to what he is accused of doing -- is difficult to know. Evidence linking him to the killings he is accused of is slight to none, his supposed appearances have not proved out, and there is a whole body of conspiracy theory claiming his "manifesto" is either entirely fraudulent or has been severely tampered with. On the other hand, what there is actual visual evidence of is Dorner's burnt out truck said to hold destroyed weapons inside, and Dorner seen on video disposing of weapons in a dumpster.)

"Chris, All The Best, Chief Bill Bratton"
[One of the best summations I've so far read about the LAPD Thing: "LAPD Chickens Come Home to Roost" by Ruth Fowler. ]


  1. The process thing came up a lot in the Aaron Swartz case. The prosecution's position was that they were not actually seeking a 35-50 year sentence in prison because:

    1. They offered him a 6 month plea bargain (provided, of course, he gave up his Constitutional right to a trial).

    2. If he had lost at trial they weren't expecting the judge to go for the full 35-50 sentence, more like 10 years. (Of course, some of the commentariat acknowledge that the judge could have gone for the max sentence, if he wanted to).

    When people start arguing in favor of Authority on forum about it, they always refer to "process arguments" and seem completely baffled by "justice arguments."

    In this case the fact that the crimes he was accused of ought to have been laughed out of court never seems to make a dent in the "process" lovers.

    It seems like what they actually believe is that the best anyone can hope for is to cut some kind of deal with authority. After all if they weren't crimethinkers the implacable gaze of Authority wouldn't have rested on them.

  2. I realize attorneys have to focus on process rather than justice because process is what they do. The court is supposed to dispense justice through adherence to proper process and procedure.

    Of course the people who are ground up in the process -- whether Schwartz or Dorner or anyone else -- don't see anything like justice. In many cases there isn't even a trial -- in other words, not even the proper process is undertaken.

    As outrageous as some official behavior can be, they're as stuck on the process over justice roundabout as anyone else.

    It's got to change.