As a South African researching American court cases [Steven Avery, Jodi Arias, O.J. Simpson], I’ve been alarmed, surprised, impressed and entertained by the criminal law system in America. Having covered the Oscar Pistorius case firsthand, and seeing what it feels like to have judges [five in the case of the Supreme Court of Appeal] face off with a gallery packed with media, family and interested observers [including Lisa and myself], one gets a more subtle sense of emotions at play beyond the court case. But the Oscar trial is a case in point: the judge inexplicably got the verdict and the sentencing completely wrong.
Recently in South Africa, a white judge [Mabel Jansen] has come under fire for making allegedly racist comments on Facebook, saying that in her experience as a judge, there’s a rape culture amongst black South Africans. This has unleashed a furor in South Africa where mostly black men have demanded her head on a plate [not literally of course]. While Jansen is on special leave, there’s been some sober reflection on her “racist” comments. South Africa happens to be the rape capital of the world, and children, even infants, are regularly raped [and killed in the process] by their fathers, relatives or family friends]. Typically these are black individuals.
In South Africa there’s also a tribal belief that AIDS [a sexual scourge in South Africa, which has amongst the world’s highest infection rates, in the millions] can be healed by having sex with a baby. I’m not sure how one can’t impute that this amounts to a “rape culture”, however niche. In any event, Jansen, it turns out has adopted black children, which suggests to me, whether her comments were too general or completely unacceptable, her heart appears to be [to me] in the right place. But is that enough?
Coming back to the original question, can we be so bold as to trust the fates of black criminals to white judges and vice versa? In Masipa’s case, was her attempt to be fair to Oscar not influenced by a racial dynamic. Besides being slightly disabled herself, Masipa may have felt careful not to be too excessive in meting out justice. Giving Oscar a severe sentence [Masipa may have reasoned] might have been greeted with accusations of racism. Lisa and I have demonstrated in our JUICE narratives the alarming power of racism to sway entire juries, as we saw in the O.J. Simpson trial.
So how does one get around the problem of “compromised” judges, and “compromised” juries. How do we get a judge or a jury we can trust, and what exactly is a judge or a jury of our peers, whether in the States, Britain, Australia and New Zealand [all based on the jury system], or South Africa?
7 thoughts on “A Judge vs. A Jury System”
The South African government needs to investigate why it is so dangerous for women and children in South Africa and then do something about it. This is a feminist issue not a racist issue.
Ever since O.J and Oscar I am disillusioned by the Justice system world wide. That’s why I’m greatful to the journalists and film makers who get the truth out there and get justice in the realm of public option.
The South African government is very good at not investigating itself. Unfortunately.
Norway has good experience with using lay judges. Lay judges take part in criminal cases in District Courts. The district courts (Norwegian: tingrett) are the first instance of the courts of justice. Lay judges play an important role in our justice system. There are no criteria applied to their professional background. But you must be able to speak and understand norwegian.
Second level: In the Court of Appeals (Lagmannsrett), 10 jurors determine the issue of guilt where a penalty of 6 years or more may be imposed. In complicated and lengthy cases, the number of jurors may be increased to 11 or 12 in case a juror is unable complete the trial. If there are more than 10 jurors after the closing arguments, the number is reduced to 10 by dismissing jurors by lot. The jury verdict is not final, and the 3 professional judges may set aside both convictions and acquittals for a retrial in the Court of Appeals. Retrials have three professional judges and four lay judges instead of a jury.
The Supreme Court is Norway’s highest court. The court is chaired by a Chief Justice together with 19 other justices. The Supreme Court has a committee consisting of three justices who decide what cases shall be tried in the Supreme Court. The same committee decides in procedural questions appealed from the lower courts. Once approved, the case is heard and decided by 5 justices. A case may be decided in grand chamber, set with 11 justices, if the court decides that clear precedence needs to be set. (Source: Wikipedia)
What’s best, it’s hard to say. I believe that our system of lay judges in the lowest court and a jury in the Court of Appeal is a ‘balanced system’.
Very interesting, thanks for sharing! In the second level where you say the jury verdict is not final, on what basis would the judges potentially set aside convictions/acquittals? Would it have to be some type of error in law (similar to how Masipa’s verdict was dealt with) or other criteria?
If the jury answered no to the question of guilt, professional judges can make the decision invalid if they unanimously find that he/she undoubtedly is guilty. When the jury’s verdict is annulled, the case shall be reprocessed, but then as meddomsrett.
“Meddomsrett” – It means a new trial without a jury. The jury will be replaced with lay judges (meddommere). The case will continue to be treated in the appellate court (in the second level), not a higher court.
In other words, if all judges agree that the jury has made the wrong decision it will be a new trial automatically.
Regarding the judgment to Masipa. In this case we are talking about a misinterpretation of the law, not made by a jury but by a judge. In Norway this would happen. Prosecutors would appeal the decision to the Supreme Court. Then the Supreme Court would have only one choice, the whole case would be sent back to the appellate court and it would be appointed new judges and a new jury – retrial.
What’s interesting is the recent sentencing of Penny Sparrow by Indian Magistrate Irfaan Khalil to pay R150 000 [$10 000] for calling black people monkeys on Facebook. Would a white Magistrate have given the same sentence? Who decides whether a sentence or a crime on a racist issue is fair – someone of a different race? In this sense I think a mixed jury voting on an issue can possibly come to a more measured decision.
I much prefer the judge system versus the jury system. Jury systems may be a good idea in countries that follow common law, based on past court case precedence, but South Africa is reputed to have one of the best codes of law in the world. However, a jury system has been proven, almost invariably, to be far more influenced by emotion, public opinion, and media pressure, than the laws themselves (granted, partially because their judicial systems typically follow common law rather than civil law). This system, thus, essentially makes our highly reputed code of law irrelevant. And the racial divide that exists in our country would without a doubt cripple our already thinly stretched legal system’s capability to reach verdicts.
In the judge system, we have full access to that brilliant code of law we hold so dear. Judges are individuals with decades of legal experiences and are held to the highest standards. They have in-depth knowledge of the laws and legal codes applicable to cases, and consider the evidence exclusively, rather than media pressure and public opinion.
I feel far more at ease putting my fate in the hands of (a) legal expert(s), than a collection of 9-12 random individuals from society.
I have recently been studying media law (as part of my B.A. Communications degree), and have realised how many misconceptions and misunderstandings there are regarding our laws. The public know next-to-nothing about our laws, and as such are wholly incapable, and unqualified, to preside of guilt or innocence in any trial.
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