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Home Features Ideas and Opinions - A NEW JURISPRUDENCE

Ideas and Opinions – A NEW JURISPRUDENCE

How would you like to live in a country where there was peace and order, very little crime, especially murder, and citizens could leave their houses open at night and no one would invade it?

There was such a country in Central America. It was Guatemala under President Jacobo Arbenz. They said he was a communist. He may have subscribed to communist principles, but what he was, was a nationalist.

The people who live in a democracy, where decisions reflect the will of the people, can have the kind of country that they want, but first they have to reconstruct their criminal justice system to conform to a new jurisprudence.

Now let us take a cursory look at our criminal justice system with regard to only one crime: murder. We are averaging over one hundred murders per annum during the past three years. Around fifty are tried for this crime. Five were convicted; the rest walked free.

These are not the real figures, but if they are anywhere near the ones quoted, then our criminal justice system is in shambles. The government can do better. It should do better. It must do better.

Suggestion: Find the best homicide detective in England or Canada who has retired, and engage his services to train policemen in modern police methods for one year. My observation is that our police are too quick to make arrests and to resort to the use of force. Once a man knows that he is suspected of murder and is under surveillance, he will make mistakes. “The guilty fleeth where no man pursueth.”

Another suggestion: Find the best retired prosecutor of murder cases in England, Canada or the West Indies and engage his services for one year in the first instance. The reason the performance of our criminal justice system is abysmal and that the prosecutors in the Director of Public Prosecutions’ Office are unevenly matched against defence counsels, is twofold. First, the prosecution has the burden of proof of guilt of the accused and second, the rules of evidence, relevance and the whole body of rules governing trials, including those which inform and define the judge’s functions, seem to favor the defence.

The mighty edifice of jurisprudence put together by the luminaries of the British judiciary, which govern murder trials, is revered by the legal fraternity and admired by everyone else. But it is not perfect. The structure is flawed. The builders seem to have been of one mind, in particular: It is better for many murderers to be acquitted, rather than have one innocent man convicted.

I think that the ideal was the foundation on which the whole edifice of rules and principles which govern murder trials was based, an ideal which might be expressed in this admonition: “Let not your desire in the form of justice, blind you to the absolute need that an innocent man must not be convicted.”

It is a laudable objective, but our system of murder trials is not the best way to achieve it when the result of a trial depends to a large extent on whether the prosecutor or the defence counsel prevails in their supreme efforts, one for conviction, the other for the acquittal of the accused. Out of the legal battles in the courtroom between these opposing forces the truth will emerge, and it will be up to the jury whether the accused is guilty or innocent. That is the rationale for the conduct of murder trials.

The purpose of the builders succeeds when a country’s prosecution is weak and the defence advocacy is strong, as it is in Belize, not so much where the sides are equal.

In the former case, there are a large number of acquittals and few convictions. In such cases, the conviction of an innocent man is unlikely. Where the prosecution and the defence are evenly matched and the ratio of convictions to acquittals is at least 3 to 1, the likelihood of an innocent man being convicted is much greater. Simple statistical probability. Surely, those who devised the British system of conducting murder trials would not have wanted 90% of accused murderers to be acquitted to make certain its primary objective is achieved. Still, there is a better way.

There is a better way to achieve the “devisers’” ideal while preventing as many murderers from escaping the sword of justice. It is by a system of conducting murder trials based on a new jurisprudence. These are its principles:

(1) The prosecution and defence shall be engaged in the pursuit of the ends of justice, by presenting and discovering the whole truth of the case. Nothing of pertinence to the whole truth shall be concealed from the jury.

(2) Equality before the law should be the distinguishing characteristic of murder trials. On trial for his life, a rich man shall not be better defended than a poor man. The quality of justice should not be a function of the accused’s financial resources.

(3) The role of the prosecutor will remain, with one exception. He will continue to present his side’s case and attack the defence’s with vigor. The exception is that at whatever point during the course of a trial he realizes that the accused is not guilty, he should submit his findings to the judge, requesting that he instruct the jury to find the accused not guilty.

The role of the defence will be the same as before, i.e., to present the accused’s case and attack the prosecution’s with conviction and vigor. However, since he will be engaged jointly with the prosecution in discovering the whole truth in the cause of justice, therefore, the defence counsel cannot be a party to trickery, deception or fabrication. Defence counsel’s present attitude, that ethical principles may be ignored, because their client is on trial for his life, can no longer be allowed.

If accused murderers are to be treated alike, they cannot be allowed to choose their own counsel, else the wealthy accused will be better defended that those of little means. The obvious solution is for the appointment of one or more public defenders to be paid from the public purse and assigned to defend accused murderers by the Chief Justice.
Suggestion: The position should be awarded to the best trial lawyers in the country and they should be rewarded handsomely.

This system of conducting murder trials, born out of a new jurisprudence, will accomplish five things, assuming that the suggestion put forward is for prosecution and defence to be evenly matched in experience and forensic skills, that the police become highly competent in crime detection, evidence gathering and presentation.

Five things will be accomplished if what is proposed in this essay were implemented:

1. No innocent man will ever be convicted, therefore, murderers should no longer have the right to appeal their conviction without putting forward the grounds for the appeal

2. Very few murderers will escape the sword of justice and, their removal from society will have a sobering effect on the criminal element. What is more, the people will regain their confidence in the state to perform its primary duty and their sense of security will be restored.

3. Assuming a conviction rate for murder at around 90%, causing a reduction in the incidence of this crime going forward, the police will have much more time to deal with lesser crimes, starting downward with armed robbery. Their successes at each level will create a domino effect, until they can turn their attention to crime prevention.

4. Resulting from the considerable reduction in the levels of crime, as a result of the implementation of the proposed murder trial system, it will be possible to reduce by half our law enforcement agencies in three years’ time. Our law enforcement agencies’ (Police Department and Gang Suppression Unit) allocation in the 2014 budget is 114 million dollars. Assuming a 10% annual increase in expenditure on these two agencies would be 125.4 million dollars. The considerable savings of expenditure on our law enforcement agencies which will accrue from the adoption of the proposed action could be put to good use. The government might consider establishing a national service corps, or a small but elite police force, starting with the recruitment, training and retraining of personnel, along the lines of the recommendations made in the 1992 Crime Commission Report; or, and this is the one I favor, investing in the deprived children in our society, by providing for their basic needs, education and training in skills to earn their living, failing which they may turn to criminal activity to survive.

Let us imagine what Belize will be like in 2017, three years after the conversion of our Criminal Justice System, according to the dictates of a new jurisprudence. The value of human life will have been restored. There will be few murders. Killers will know that their lives are forfeit. The police will be able to control other criminal activity and, Peace and Order will return to our land. When Belize becomes once more that tranquil haven of democracy, then you will see what great things we sons of the Baymen’s clan can achieve. But, there’s more. Nature has blest us with wealth untold. Nature’s wealth, combined with peace, order and tranquility, plus a people renowned for being friendly, kind and helpful, makes Belize the place where people from all over the world would like to visit or live. Belize is restful but entertainment of all kinds abound. If I were a retired professional living in a city in Europe or America, Belize is where I would go to enjoy the rest of my days.

So now, let me ask the question again. How would you like to live in a country like Jacobo Arbenz’s Guatemala, whilst at the same time, insuring the jurisprudential ideal that no innocent man is ever convicted in court for the crime of murder? It can be done if we reconstruct our system of conducting murder trials, according to the New Jurisprudence.

Essentially, what the new jurisprudence proposes, as opposed to the present system, is that the prosecution and defence counsel be not adversaries, but joint seekers of justice and truth, while presenting the prosecution and defence causes to the best of their ability.

For the proposed system to work properly, the roles of prosecutor and defence will have to be changed. Let their cause be justice and truth, above all.

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