In US Courts, Truth Often Gets Left in the Dust

THE television cameras have gone dark, and Judge Lance Ito's courtroom returns to the non-celebrity workaday world of robbery, larceny, and assault. The high-priced defenders, the public prosecutors, and the expert witnesses are preparing, perhaps with a bit of ennui, for their next cases. But the ''trial of the century'' is not truly over.

As important as the jury's verdict has been for all of those involved, of far greater national significance will be the American people's verdict when they realize that after nine months of trial and 107 witnesses, after 12,000 pages of transcripts and innumerable motions and counter-motions, the truth of what actually occurred that night in Los Angeles has still not been revealed, possibly not even genuinely examined.

America may come to realize that it knows more about Marcia Clark's hairstyle, Johnnie Cochran's personal life, or Mark Fuhrman's abhorrent racial views than it does about the murders of Nicole Brown Simpson and Ronald Goldman. The murders themselves must now be allocated to the ''unresolved'' or ''uncleared'' category, where nearly 73 percent of America's some 30,000 annual homicides end up.

It has been said that in war truth is the first casualty. But wars are contests of force where prowess and resources, rather than truth, are expected to prevail. This is not what's expected in the hallowed halls of justice, where one hopes to find the realization of Benjamin Disraeli's assertion that ''justice is truth in action.'' Yet in the modern American criminal court it is not Disraeli's promise that rules, but a mangled version of the axiom about war: Truth, far from being victim, is hardly even present. Truth is absent without leave, or acknowledgment, from the battle between lawyers.

Who in the courtroom is actually vested with the duty of pursuing the truth? America's criminal justice system, derived from the country's English heritage, has sought to differentiate itself from the European inquisitorial process, under which the accused is expected to cooperate with the state's investigation and is encouraged to offer evidence to exonerate himself. Under the system that prevails on the Continent, the role of lawyers is greatly subdued, with the major quest for information, during both investigation and trial, being carried out by an impartial judicial officer.

The state as adversary

The Anglo-American adversarial process believes, instead, that truth and justice can be best derived not from cooperative pursuit but from a fierce contest between disagreeing parties. What the adversarial process eventually created, however, is a perception that the ''state'' is the suspect's enemy rather than an unbiased pursuer of the truth. The suspect has no duty to aid the state in the quest for justice. He or she is not required to testify or otherwise cooperate, nor does the state generally offer any incentives to induce the defendant to contribute to the pursuit of the truth. O.J. Simpson's victorious lead attorney, Johnnie Cochran, conceded this when he claimed in his closing argument that the ''search for the truth is their job,'' referring to the prosecution. The defense counsel is hired to keep the defendant out of prison, regardless of guilt.

On the other hand, the police and their courtroom spokesmen, the prosecution cadre, seek to present themselves as a squad of Diogeneses, all searching, lanterns aloft, for the truth and nothing but the truth. In their quest they are admonished to heed Sir William Blackstone, a pillar of modern Anglo-American legal jurisprudence, who declared that ''it is better that 10 guilty persons escape than one innocent suffer.''

But the police and prosecution have a goal too, much as the defense does. They are expected to preserve law and order and to place criminals in prison. Can the desired end result, conviction, sometimes become more important than the truth surrounding guilt or innocence? Police and prosecutorial abuses, including brutality and trickery in securing confessions, have not been unknown in this country.

But other practices trouble true believers in the adversarial model even more than such abuses. The increasing use of plea bargaining is said to be vital to speed and efficiency in the criminal justice system, but the plea bargain amounts to an oriental bazaar type of negotiation. It has been joined by the even more bizarre Alford plea (permitting an accused to plea: ''Your Honor! I plead guilty but I did not do it!''). Together, they now account for some 95 percent of all criminal dispositions in this country. These and similar innovations, vehemently supported by lawyers of all stripes as indispensable in an overburdened legal system, further dilute the quality of ''truth'' in the nation's halls of justice.

What of the judge? Alas, the judge in the American legal system is more an umpire than a Solomon. He or she sits on high, deciding what is to be allowed into evidence, ruling on motions concerning witnesses, choosing when to turn the mass-media microphones and cameras off. Their role is to make the court run in an orderly manner, to make sure the system works and triumphs - the system, not the truth.

And, finally, the jury. Before deciding whether to open the cell door to freedom or lock it in punishment, these 12 men and women must decide which version of the truth they believe. Yet the truth they have to rely on in reaching their verdict is that proclaimed by two adversarial parties who often use the criminal process (sometimes with full constitutional support) to obfuscate the truth.

''The court's power,'' wrote the US Supreme Court some three years ago, ''lies in its legitimacy ... that shows itself in the people's acceptance ....'' It is the public's trust in the American criminal justice system that is likely to be drastically affected by the post-mortem of the Simpson trial.

How did truth retreat from the forefront of the American criminal justice system? Perhaps it was caused by the emergence of greater extremism in the operation of the adversarial process, with both the prosecution and defense becoming more concerned about their respective roles than about simple truth and justice. This development may be attributed to the post-World War II era, when the prodding of the Supreme Court, under Chief Justice Earl Warren, brought about what Prof. Herbert Packer described as a victory of ''due process'' over ''crime control'' in the American criminal process.

To due-process supporters, the state and its agencies are all-powerful and the accused is pitifully helpless. They insist that the prosecution should not secure a conviction, even of the factually guilty, by inappropriate ways and means. Stressing the possibilities of both deliberate and accidental state errors, they are committed to the eradication of all state misdeeds. This camp therefore considers ''factual guilt'' of little significance. What matters to them is ''legal guilt,'' meaning guilt determined in careful conformity with judicially specified, and constitutionally sanctioned, standards of law enforcement.

The crime-control camp, on the other hand, sees its function primarily as that of reducing, or at least stabilizing, criminal activity. They operate, generally, on the unstated assumption that those suspected by the police, who have had evidence of probable cause established against them - and who have failed to exculpate themselves through alibi witnesses or other testimony - are presumably guilty. Favoring speedy, efficient, and informal proceedings, the crime controllers do not always shy away from psychological or even physical intimidation of suspects, or other questionable practices intended to expedite punishment.

Although the Supreme Court, under Warren, declared the supremacy of the due-process approach over crime control, the final victory of that camp was never fully attained. Mr. Simpson's elaborate trial serves to demonstrate the ongoing skirmishes between the advocates of the two models.

Questions of due process

Ms. Clark and the California prosecutors relied, in great part, on the tainted testimony of Detective Mark Fuhrman, which was faulted by the defense as reflective of the crime-control approach. The defense constantly raised questions not only about police and prosecution negligence, but also about deliberate misconduct and racial bias. They called for, and may have received, due process. To the prosecution, the irregularities of the state's actions may seem insignificant. To the defense, no state willing to keep in its employ officers such as Fuhrman should be entitled to win a conviction.

Any conclusion that the Simpson jury might have reached would have likely fortified a growing suspicion that, in the on-going struggle between the crime-control and due-process approaches, the loser is not only the truth but also the public's confidence in its embattled system of justice. The lesson to be learned from the O.J. Simpson morality play is that no legal system can retain the confidence of the people if, in its search for ''justice,'' it leaves the truth in the dust.

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