By Patricia Padurean
Walking into Department 5 of the Vista courthouse in California, it is hard to resist the urge to cross yourself. Visitors sit in pew-like rows of seats, looking up at a stained glass representation of the California state seal. When the judge walks in, his robe billowing behind him, everybody stands until His Honor grants us permission to be seated. Some of the penitents in the pews are new, some are visiting, most are regulars. They bow their heads. We are in the inner sanctum of the criminal justice system, but the vernacular is overwhelmingly ecclesiastical.
Generally in a church you do not have the looming presence of armed bailiffs so rotund that they have to throw their weight around just to be able to move. In court, these men and women are unavoidable. But it is precisely the ever-present menace of Bailiffs Tweedlee and Tweedledum that highlights the absurdity of the criminal justice system.
Participating in the criminal justice system, whether by choice or in handcuffs, involves stepping into a plane of existence that operates in parallel with the real world. Legal language and logic do not quite map onto normal human language and logic. At every step of the process you have to absorb a new obstacle that challenges and distorts everything you thought you knew about language and reality.
So let’s say one of your friends is a little quirky and a bit of a night owl and instead of doing the normal thing and watching Netflix until 3am, he does chores instead. One evening he decides to mow the lawn. It’s midnight, it’s dark. The neighbor has a dog whose lot in life is not easy. Rover is deaf and as he scampers across the neighborhood backyards, he does not hear the mower coming for him and he is accidentally run over. Your friend, Mr. Insomnia, is charged under your state’s animal cruelty law with killing a domestic animal.
We all know that a criminal defendant is by law considered innocent until proven guilty. We hear this mantra a lot. But if you have ever watched Nancy Grace in her full splendor, you know that the mantra is often disregarded. With stunning regularity, potential jurors admit to thinking that the defendant must have done something wrong or she would not have been arrested and the gears of bureaucracy would not have ground far enough for her to see the inside of a courtroom. The defendant is then generally guilty until proven specifically guilty of something.
If the criminal offense in question has an element of intent, which they typically all do, the jury is charged with deciding whether or not the defendant intended to commit the crime. The law breaks this down into a two-part test comprised of an objective and a subjective half.
The subjective test requires the factfinder to determine the defendant’s mental state at the time of the crime. That’s all fine and good; it rings true that any attempt to enter a person’s mind should be called subjective.
The objective test also tries to determine the defendant’s mental state but it does so by imagining a generic “reasonable man” in the same situation as the defendant. If a reasonable person would have foreseen that mowing the lawn at midnight would result in the violent death of the neighbor’s deaf dog, then obviously the defendant, for all his protesting to the contrary, was clearly out to make a dog smoothie.
The objective test, then, supposedly improves upon the subjective test by determining what was going on in someone’s mind by comparing it with what might hypothetically have been going on in someone else’s mind at the time. There is nothing objective about this; in fact the objective test is twice as subjective as the subjective test! And of course, it is possible to imagine many varieties of a reasonable person, all of whom might have foreseen different consequences of deciding to mow the lawn at midnight.
So let’s assume our defendant has been found guilty of intentionally killing his neighbor’s dog. Criminal convictions not only have the force of law, they also have the force of fact. Once you are found guilty of an offense, in future that offense will be referred to as having objectively happened. But often this is a legal fiction. In our case, Mr. Insomnia accidentally shredded a dog. He knows he didn’t intend for it to happen but from this point forward, as far as the criminal justice system is concerned, he is a willful dog killer.
This type of scenario is admittedly quite rare; however, a large proportion of criminal convictions are plea bargains in which the prosecution offers the defendant the opportunity to plead guilty to a lesser charge than the original conviction. Domestic violence becomes false imprisonment, soliciting a prostitute becomes disturbing the peace. In these cases, any lawyer, judge, jury, or employer who looks at these criminal records will say “Mr. Smith disturbed the peace” when in fact he tried to pick up a hooker or “Mr. Doe imprisoned his family in their home for a week” when in fact he was raping his wife or when perhaps his wife was hitting their children but reported her husband to the police to cover her tracks. These are all very serious issues and behaviors, yet when the justice system treats reality itself like it is fungible, it is difficult not to see criminal justice as a game that you are forced to play but can never hope to win.
Like most institutions, the criminal justice system works well some of the time, and it spends the rest of its time simply existing. To make your living in this system you have to either live in a perpetual state of denial or suspended disbelief. If you squint and tilt your head just so to try to make the two parallel worlds meet, you’ll just wind up cross-eyed and deranged. Nothing is real; Godot will never come.