March 01, 2018

Joseph Wapner

Joseph Wapner

Source: Wikimedia Commons

The genius element of the English justice system is the invention in the Middle Ages of the state prosecutor, or, in its original incarnation, the king’s prosecutor. His purpose was to keep vengeance out of the courtroom. Before that you had the aggrieved-kinsman system. The suffering family brought charges against the alleged offender, so that if a Hatfield killed a McCoy, it was up to the McCoys to file charges, and if the Hatfield was found guilty, the McCoys were allowed to take vengeance in the form of executing the offender themselves. Eye for an eye, family member for family member, murder for murder, rape for rape. This is the system that, in various forms, still exists today in many Muslim cultures, and it’s the system that we supposedly got rid of 800 years ago after agreeing that eye-for-an-eye is not what we wanted. Henceforth the only person allowed to bring criminal charges was an unbiased public official representing the state and the people, and that person had to be emotionally uninvolved with either side of the case.

Then, as the court system developed in England and America, we became strict about excluding from trials anyone who had any kind of bias, even if he otherwise qualified as a witness. In fact, bias caused by friendship or blood relation is one of the principal ways that witnesses are impeached.

So where did we get these judges and prosecutors and attorneys who, far from being “officers of the court,” instead hold press conferences, give interviews, and otherwise offer public opinions on cases both young and old? (One of the district attorneys who reviewed the evidence of the early accusers of Bill Cosby has been on so many news channels lately that it qualifies as a publicity tour.)

I blame the TV camera for infecting what was once a fairly consistent system. Prosecutors and judges—especially elected judges—have become reality show contestants whether they want to be or not. They want to give their own victim’s testimony. They want us to know how they feel. They want us to know that “I owed it to the victim’s family”—a literal restoration of the aggrieved-kinsman system. They want to shake their fingers in the faces of offenders because the state prosecutor is not enough—they want to be the state scourge.

But if they’re planning to perform for the camera in the future—“I just signed your death warrant”—then I would encourage them to model their performance after Judge Wapner, not Judge Judy. At least he had the honesty to admit the limitations of the law, and the class to faithfully serve it.


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