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
  DIGNITY, JUSTICE, COMMUNITY, PEACE.   
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.

JUSTICE.

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. ]

On Justice

Recently, I engaged in a fairly extensive discussion with several posters over at Glenn's Place, touching on many subjects, but focusing -- at least in my mind -- on the concept of "Justice" and what it is and what it means -- and how it can be achieved in a corrupt or frankly "unjust" legal system.

A good deal of the discussion revolved around the differences between the Federal Court and Justice system versus the drumhead Military Commissions system attempted -- but not really operating -- at Guantánamo. My argument was that the military system might be more likely to produce justice in terrorism cases than the Federal courts, in part, I thought, because the military legal officers were, to my mind, showing a good deal more integrity and fealty to the concept of justice than were Federal Court officers.

My view was partly shaped by what I knew of my father's service as a JAG officer during and after WWII, and what I was able to learn of the Hayat terrorism case in Federal Court in Sacramento, California, in 2006 and 2007.

What I learned from my father was that he and most of his colleagues in the JAG Corps were devoted to Justice, not simply Law or Process. This notion of Justice above all was extraordinarily important to him, and he would rely on it in the one civilian trial he served as defense counsel for -- the murder trial of his brother, my Uncle Vincent (when my father left the military, he specialized in Real Estate Law, and except for his brother's trial, he never served as a trial counsel again.)

My father won a directed verdict of acquittal for his brother -- who had not committed the crime in any case -- something the DA knew before he went to trial. It was, bluntly, a political trial of a rival, and despite the acquittal, it was effective in destroying the political ambitions of my uncle and was a devastating blow to any ambitions toward politics and public service in that community that anyone in our family might have in the future. It put a shadow on the civilian "justice" system in that a "just" system would not have subjected my uncle to trial for a murder the DA knew he didn't commit in the first place.

But this concept of Justice seems to be a difficult one for many Legalists to approach, and few of them can accept it. Legalists are obsessed with the forms of "Justice", not its realization.

In the Hayat case in Sacramento, the investigation, prosecution, trial and eventual conviction were a farce and a tragedy and were, on their face, an example of the kinds of injustice that has become the rule in terrorism trials in federal court in this country. It was appalling through and through, corrupt, venal, deeply offensive and wrong. I advise anyone with an interest in Justice to read through the material publicly available, starting with the Frontline piece linked above, and decide for yourself whether the Hayats -- and the American People -- were the beneficiaries of Justice or its sham.

Glenn and many others have taken the position that maintaining terrorism trials in Federal Court, except under extraordinary conditions of military and battlefield necessity, is essential for the preservation of the Rule of Law and of Justice in this country. I can certainly see their point of view. I would be more inclined to accept it if the evidence showed that Justice -- as opposed to Rule -- was the focus of Federal Court terrorism trials, but that's not what we see. We see the opposite.

And under those circumstances, I argue that military justice in terrorism cases might actually be more likely to produce a just outcome than civilian trials.

And I pointed to the truly ironic outcome of the Hamdan military commission, in which the officers trying him convicted him of the charges against him -- because he had actually been Osama's driver, had actually provided "support" (by driving) to Osama (Terrorist in Chief, so they say), and there was no dispute about it, though the charges of any sort of crime involved in what he had done were and are disputable) -- and then the commission essentially ordered him released, because, at least in my view, they saw that justice would be served by releasing him, not by holding him for 30 more years or whatever, for doing something that essentially shouldn't be categorized as a "crime of war" in any case. This is how, even in a patently unjust system, such as that of the military commissions, a just result can occur.

Unfortunately, in civilian terrorism trials, the concept of Justice is too often sacrificed on the altar of Rule.

Although the discussion at Glenn's was extensive, we weren't able to get in to all the ramifications of what we were discussing, and one of the points we didn't touch on is that Justice does not necessarily mean that the accused are released or that they are encaged (as Glenn is wont to term it) indefinitely.

Glenn pointed out accurately that some 33 of the men held at Guantánamo whose habeas petitions have been heard in Federal Court have been ordered released primarily due to lack of evidence or lack of support for the evidence that they had done anything wrong, or in some cases on the basis of the outright fraudulence of the claims against them. Is this a just result? It may or may not be just, but more to the point, it is primarily rule-bound. Glenn and others it seems to me are primarily concerned with following Rules and not with Justice, and some will go so far as to equate Rule Following with Justice, something I would dispute vigorously.

The point was made repeatedly that Military Commissions are unjust from the get, something I don't really dispute. How they are set up is one aspect of them that needs correction, to say the least, and I pointed out that military officers in the JAG Corps have been the ones objecting most loudly about the purpose-built injustice of the Military Commissions, and they have gone so far as to resign and go public with their objections rather than participate in them, and in the case of Hamdan, they have used their authority -- even as limited as it may be under the Military Commissions Act -- to free someone accused and convicted who they believe was being unjustly held. In other words, even though the system was unjust on its face, they set out to achieve a Just result, and looks like they did achieve it to the extent they could.

We don't see such devotion to Justice in Federal Court. I'm sorry, we just don't. Nor do we see officers of the Federal Courts resigning in disgust or going public with their objections to the lack of Justice -- in terrorism cases especially, but not exclusively -- in Federal trials. In the Hayat case, for example, misconduct was rampant throughout the Government's conduct of the case, from investigation through prosecution, judicial misconduct was almost as bad, with the intent of securing a patently unjust outcome, not just a conviction, but an unjust outcome. That's what they wanted. That's what they got.

I say they deliberately violated Rules of Due Process to ensure the injustice they were aiming for, but an argument could be made that they were actually following the Rules, and that those Rules made the unjust result mandatory. I don't agree, but I can understand the argument.

Over and over again, Glenn and others have argued that Federal Courts are "perfectly capable" of handling terrorism cases, and they love to cite the conviction rates in terrorism cases, and the long sentences that are obtained as proof. Well, isn't that just special?

Yes, indeed, the civilian courts are capable of "handling" these matters (and many others) but are they capable of producing justice? And this is a question I raise again and again. If the outcome is unjust, why are you supporting the process that leads to such injustice?

One of the many ironies of discussions like this is that the "Giving the Devil the Benefit of the Law" scene in Robert Bolt's "A Man For All Seasons" is often invoked to defend the Federal Court process.

Let's review the scene and then consider:



Of course, Sir Thomas is defending respect for Law as opposed to the arbitrary imposition of Authority, at the time something of a difficult needle to thread, despite the thicket of Law with which the Sceptered Isle was planted. There was, after all, still the King to consider, and his distemper.

Respect for Law is not the same as a respect for Justice -- and this scene does not touch on Justice, for that's not what this scene is about.

The following scene from the same movie touches on Justice, and I think we should consider it well:



The quote is as follows:

Sir Thomas More: You threaten like a dockside bully.
Cromwell: How should I threaten?
Sir Thomas More: Like a minister of state. With justice.
Cromwell: Oh, justice is what you're threatened with.
Sir Thomas More: Then I am not threatened.

Very brief, to be sure, but the whole scene could be said to be about Justice and its fragility, and in the case of Sir Thomas and his controversy with King Henry and his Ministers, the absence of Justice. That's in fact what the movie pivots on. It's topic -- as it were.

Consider well what is going on here.

On that note, I'd like to point out that at the same time that we were getting into it at Glenn's (who, I'm sorry, did not really participate except with his usual snark) Scott Horton was dealing with some of the same issues over at his place at Harper's.

While I've no doubt that he is generally in agreement with Glenn, vis a vis, Federal Court versus Military Commissions (as I am in the abstract, but not necessarily in practice), his approach was quite different. Rather than lash out, he provided a series of posts, starting with an excerpt from Abraham Lincoln's Cooper Union Speech, continuing with Ali Soufan's defense of Federal Court versus Military Commissions in the New York Times, and culminating with an interview with Michael Sandel whose recent book, Justice: What's the Right Thing to Do? explores the topic in depth and goes well beyond the issues of this or that venue for achieving Justice.

It is a moral question, isn't it? Perhaps the ultimate moral question.

Watch Professor Sandel discuss it at Harvard on the WGBH series:

Justice: What's the Right Thing to Do?


[Note: I would ask those who use the "Giving the Devil the Benefit of the Law" scene in "A Man for All Seasons" as justification for putting terrorism suspects in Federal Court whether they believe Justice was done in the trial of Sir Thomas More. If so, how? And if not, why not? It is the fundamental issue here. And it is, perhaps, what the theme of this whole blog has been.]