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Thursday, February 10, 2000
Houston, Texas
Volume 65, Issue 92

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Appeals process doesn't allow for justice

Steve Forsberg

Texas law has not changed very much over the years, it seems. We are all familiar with the old Western movie scene where a posse has captured the hero, who is wrongly accused of committing some crime.

"Let's string him up," one of the posse members suggests.

"Naw," replies another. "We're a civilized state now. We'll give him a fair trial. Then we'll string him up!"

Even in this day and age that attitude persists, not only in ignorant cowpokes but even in supposedly educated judges. A pernicious philosophy called "proceduralism" has infected the bench.

What exactly does this mean? As the Houston Chronicle noted earlier this week, "... the Texas Court of Criminal Appeals has ruled that newly discovered evidence of innocence is insufficient grounds for overturning a conviction or ordering a new trial. As long as the accused receives a fair trial, Judge Sharon Keller wrote in the opinion, the law's requirements are satisfied."

To put it simply, your actual guilt and innocence (and evidence thereof) doesn't matter. Basically, if you are convicted wrongly, you should not be able to get out of prison (or have a new trial). This notion of justice is clearly warped, but is unfortunately growing in popularity in a judicial system where clearing dockets and compiling good conviction statistics are becoming far more important than figuring out who has or hasn't committed a crime.

Proceduralism turns most people's notion of justice on its head. Most people would equate "justice" with people who commit crimes being found guilty and punished, and those who have not committed them being found innocent and set free. The proceduralists argue, however, that what you actually did or didn't do is not important as long as you received a "fair" trial. Of course, most of us would like to think that a "fair" trial is one where the proper verdict is reached. Proceduralists, however, believe that as long as a minimal checklist of trial requirements is met, whatever results (O.J. Simpson free or Rubin "Hurricane" Carter in jail) is automatically "justice."

Jumping through the right hoops in the right order is much easier than pondering the possibility that perhaps our judicial system is putting a few too many of the wrong people in prison.

Indeed, such rulings seem to stem from Texas judges who, terrified of admitting that their "system" is not perfect, continually refuse to free people even when they concede that the imprisoned person is innocent.

Laws are an example of rule-based utilitarianism. Generally, one would concede then that they cannot perfectly fit every situation. This is why, in our traditional system of justice, key individuals like the judge and prosecutor (not to mention the jury) are obligated to examine charges on a case-by-case basis. They are supposed to use their discretion to ensure that the mechanics of the law result in justice. Having discretion, however, implies having authority, and having authority implies having responsibility.

Many modern judges want to be able to claim that just because they followed some minimally acceptable checklist, they are absolved of all duty to actually make hard decisions about guilt or innocence.

This all leads to a weird Alice in Wonderland situation where "heads you lose, tails you loose." Normally, if some procedural error is made during a trial, the prosecutor argues that no new trial is necessary since, "you were guilty anyway." Even if you can prove your innocence, however, the appeals judges might well inform you that no new trial is required because "guilt or innocence is irrelevant" as long as procedures were followed. 

Clearly, this "procedural" school of jurisputridness is one that the public should start carefully watching for in judicial candidates.

Forsberg, a senior history major, 
can be reached at sjforsbe@bayou.uh.edu. 

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