Friday, February 19, 2016

INCESTUOUS JUSTICE: Why New Zealand's court system doesn't always serve the interests of justice

 If you've watched Making a Murderer, you probably already know that when police, prosecutors and judges are all in each others pockets, that's not good for justice.  I'm not talking about some vast conspiracy where all of those people knowingly banded together to frame Steven Avery and Brendan Dassey, because I don't know if that's what happened.  I'm talking about a system where the knee-jerk reaction is to protect their own,  and cover up and deny incompetence or misconduct, and ultimately, thwart the justice process.

This can affect almost any justice system, but it's far more likely in smaller areas, because it's a closed system.   Everybody in the system knows everybody else in that system and that's a problem.  In classical mechanics a closed system is defined as....

"...a physical system that doesn't exchange any matter with its surroundings, and isn't subject to any force whose source is external to the system."

 Applied to human systems (societies, cultures, organisations etc) a closed system is one which doesn't have new people coming in and isn't subject to a higher authority.  When it comes to criminal justice, a closed system is an incestuous system, and no I don't mean that the judge is sleeping with his cousin (he might be, but I can't speak to that).   I mean that everybody in that system is affected by the actions of the others in the system, so if somebody screws up, it's going to reflect on the rest.

Obviously there's a limit to this analogy, since Manitowoc County is subject to a higher power; the Nine Levels of Hell, otherwise known as the US system of appeals courts with the Supreme Court at the top.

So, what does that have to do with New Zealand's court system? A lot actually, because New Zealand is also a closed system, a fully closed system now that we've scrapped appeals to the Privy Council in London.  Once you've appealed to the Supreme Court of NZ, that's it.  If you lose that appeal, you're done, do not pass Go, do not collect millions in compensation.  Here's a handy diagram...

You can ignore the bottom level, and those weird bits off the to sides, those have nothing to do with criminal justice, the relevant levels are the District Courts through to the Supreme Court at the top.

The appeals process takes years, even with the Privy Council's removal from the chain.  David Bain had already served 13 years of his 18 year minimum term by the time his conviction was quashed, because that's how long it took for his case work it's way up the chain.  Once a person has been convicted and sentenced, if it's a prison sentence, they can conceivably serve most, if not all, of that sentence before exhausting the appeals process.  This too, is a problem, especially for the wrongfully convicted, but that's not a problem I have any solution for unfortunately.

What I am concerned about is that closed system I mentioned earlier, and how it can derail the justice process.  Once you get past the High Courts, which are located throughout the country, this is when things start to get really insular.  There's only one Court of Appeal, it's in Wellington, walking distance from Parliament.  The Supreme Court is also in Wellington, also not far from Parliament, and since Wellington is our nation's capitol, this isn't surprising or suspicious.  But it does increase the insulation just a little bit, because the judges who sit on these courts all know each other, and they all know most of the major players in politics, business, the media, etc because that's how being small works.

I want to dispell any notion that there is some kind of conspiracy brewing here.  There isn't.  This is what you would expect to find in a small country with a small population, because that's being human works, unless you live in a cave in the Himilaya's or something.

What I am trying to say is that we have to be aware of the incestuous nature of our justice system.  We have to point out when decisions made in the "public interest" are actually being made in the interest of those at the top.  When somebody that is clearly innocent, isn't exonerated by the Court of the Appeals or the Supreme Court, because the judges that sit on those judicial bodies are more worried about making police, or the lower courts look bad, than they are about justice.

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