September 2, 2014
Considering trial by jury
For the Herald
The debate which has been waged for some months now in Neuquén, San Luis, Córdoba and Resistencia finally reached the national capital a fortnight ago at the Book Fair — namely, trial by jury. Already imminent in Buenos Aires province, it will be reaching this capital soon enough.
Last week the new system had a dry run in the Centro Cultural San Martín (with the actors Fabián Vena and Lito Cruz) while on the other hand, the recently deceased Supreme Court Justice Carmen Argibay was, during her lifetime, one of the greatest opponents of this system for trying serious crimes.
In an article in this newspaper last September entitled: “Society is not trustworthy,” Argibay said: “Now is not the time to have trial by jury. We have no guarantee that people are going to understand the vision behind it; we have no guarantees of a serene trial uncontaminated by media coverage: we have no guarantee that there will not be pressures on the part of the victim or the accused.”
Yet curiously enough, it was precisely this questioning which convinced many people that trial by jury is necessary in Argentina. And not just because it is the stipulation of the National Constitution but also because Dr Argibay was a respected jurist, so when she examined a question from other viewpoints — as a simple citizen, an intellectual, a communicator — it made that institution seem ever more necessary.
Firstly, because a century of “oblivion” for this constitutional requirement has seen many a trick (whether deliberate or accidental) by the political elite who could always agree over blocking trial by jury because it essentially questions the corporativist notion of justice at root. It takes it away from stuffy rhetoric, placing it exactly where it should be — in society itself away from corruption and influence-peddling.
Trial by jury summons ordinary citizens to decide the innocence or guilt of the accused in the case of serious crimes. Just as that memorable film by Sidney Lumet 12 Angry Men showed the world in 1957, a dozen ordinary citizens (then all white and male, as was common in that period) debate the innocence or guilt of a boy accused of murdering his father.
Dozens of other films and television series since then have been giving a kind of civic crash course. Whether by accident or design, this film material has been the only constant reference to trial by jury for entire generations of Argentines. Which also leads to the thought that it is no coincidence that this extraordinary judicial instrument has been kept secret from our citizenry so rigorously (and not entirely innocently).
Barely a month ago, the country had the chance to witness trial by jury in Patagonia, a paradigmatic case which was nevertheless not highlighted by the dominant media. And it becomes an unstoppable part of any process of democratization for the simple reason that the citizenry responds positively when motivated by proposals which go to the heart of their interests and responsibilities. And there is more than enough proof that Argentine society — urged daily to value things which have no value — is enthused by the proposal of legal instruments which clearly improve justice.
Argentina’s democratization of the last 30 years seems to point to a change in this direction. This is a factor which has begun to break down the resistance to trial by jury and it is probable in the next few months and years that we will be seeing renewed value being given to this instrument of justice which is already being applied in Córdoba and Neuquén and which will now begin in Buenos Aires province.
Of course, no society is prepared for trial by jury a priori. This Anglo-Saxon legal tradition dating from the Middle Ages has seen a popular justice which has been the source of great successes but also whopping errors, as is natural any time justice is done. It is thus a question of improving the system in action and that is the opportunity Argentina has today where trial by jury could be revolutionary by virtue of modernizing, making justice both faster and better but above all, because it would be less unfair than the current class-ridden and sclerotic system we suffer today.
Of course, many jurists who have no objections to trial by jury are apprehensive about introducing it in the current context. They point out that it is “expensive” (which is probably not true), that the citizenry lacks education and preparation,” which is easily soluble — besides, the juries until now seem to have been well-advised. There are answers to all these warnings — the costs must be assumed by the judicial system and that might imply a reduction of fees. As for the lack of education, that is a problem of society as a whole. Which also applies absolutely to justice, which is the only republican institution (along with the “damned police” and the prison service) which has not been democratized and which preserves intact all its forms and essence as established under the dictatorship.
And if it is pondered that “the media can generate interference,” that argument, while certainly true, is only part of Argentina’s social tragedy wherein the worst part is not that the major media lie but that much of society believes them.
In the face of appalling police investigations, slow and contaminated trials, dubious judge selection, media trickery, outrageous dismissals of cases for “lack of evidence,” inexplicable convictions and acquittals, the irregular behaviour of the Council of Magistrates and the deplorable political influence-peddling which has been contaminating justice for at least 40 or 50 years, there is no better remedy than changing for once and for all. And trial by jury could be a great step forward because it changes procedures and timetables, opens and airs files and thus democratizes and educates. And because it attenuates the arrogance and presumed infallibility of pompous and over-confident magistrates.
All the fears raised by the new system of trial by jury must be faced, heard out, reasoned with and then perfected — it would be unreasonable not to do so. But there is a civic duty to face this task and advance in the judicial innovation which this instrument (already applied in some provinces with prudence and excellent results) signifies.