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Natoli: Au Revoir, Voir Dire and Other Costly and Socioeconomically Unjust Judicial Practices

Natoli: Au Revoir, Voir Dire and Other Costly and Socioeconomically Unjust Judicial Practices

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I am very pleased to have been asked to participate in the symposium
and to submit my corresponding article for publication. Since I hold a
Ph.D. as well as a J.D., and spent twenty-five years teaching in the
social sciences before attending law school beginning in 1994, my approach
to issues in the jurisprudential arena is naturally and very strongly affected
by the social sciences—for the better, I would say.
To say that the judicial system is in crisis is an understatement. What is
heartening is the recognition by this symposium that perhaps, if we put
our collective backgrounds and perspectives together, we might at least
serve as catalysts for change. This change is not going to come about today,
but this symposium is a welcome start.
I am very pleased to have been asked to participate in the symposium
and to submit my corresponding article for publication. Since I hold a
Ph.D. as well as a J.D., and spent twenty-five years teaching in the
social sciences before attending law school beginning in 1994, my approach
to issues in the jurisprudential arena is naturally and very strongly affected
by the social sciences—for the better, I would say.
To say that the judicial system is in crisis is an understatement. What is
heartening is the recognition by this symposium that perhaps, if we put
our collective backgrounds and perspectives together, we might at least
serve as catalysts for change. This change is not going to come about today,
but this symposium is a welcome start.

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Categories:Types, Business/Law
Published by: New England Law Review on May 22, 2013
Copyright:Attribution Non-commercial

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605
 
N
ATOLI
F
INAL
(D
O
N
OT
D
ELETE
) 5/22/2013
 
5:21
 
PM
605
Au Revoir, Voir Dire and Other Costlyand Socioeconomically Unjust JudicialPractices
M
ARIE
D.
 
N
ATOLI
*
INTRODUCTION
am very pleased to have been asked to participate in the symposiumand to submit my corresponding article for publication. Since I hold aPh.D. as well as a J.D., and spent twenty-five years teaching in thesocial sciences before attending law school beginning in 1994, my approachto issues in the jurisprudential arena is naturally and very strongly affected by the social sciences—for the better, I would say.To say that the judicial system is in crisis is an understatement. What isheartening is the recognition by this symposium that perhaps, if we putour collective backgrounds and perspectives together, we might at leastserve as catalysts for change. This change is not going to come about today, but this symposium is a welcome start.So how is the system in crisis? The premise of this article is that the judicial system does not deserve its name since justice hardly exists—this isthe key crisis. Indeed, the system actually assaults the very word “justice.”I realize that many in this audience may be offended by the observations Iam going to make, but an overview of the flagrant deprivations of justice tomany in our society is necessary.My remarks and law review article focus on what I believe is agenerally accepted fact that while the judicial system and judicial processare neutral on their face, they are biased in their administration andoutcomes. The morality and ethics of practices that disproportionatelyinflict egregious harms on the poorest and least educated of society arelong overdue in being addressed by women and men of conscience in both
* Professor of Political Science, Emmanuel College. B.A., Hunter College; M.B.A., SuffolkUniversity; J.D., Suffolk University Law School; Ph.D., M.A., Tufts University.
I
 
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New England Law Review
v. 47 | 605
the legal and public policy arenas.The judicial system has become a system of the wealthy, by thewealthy, and for the wealthy. Furthermore, as is also the case in thepolitical and social arenas, those best-equipped and powerful enough toaddress issues of inequality are themselves benefiting from the unjustpractices. The old saying “if it ain’t broke, don’t fix it” applies in thereverse to the U.S. judicial system. It
is
broken and long overdue for a fix.In determining any kind of reform addressing socioeconomicinequality, the first question to be asked is, “What is the purpose of ‘it’?”Reform is not only desirable, but also mandatory, when the purpose is not being met. This is especially true when people’s lives and fates are affected by system malfunction.The United States has always prided itself on a just system of laws. Justice is supposed to be blind, and the scales of justice must be equal.Anyone who has any knowledge of the U.S. judicial system, even thelayperson, knows that justice is neither blind nor equal.
1
 Rather, it is crippled and egregiously distorted in favor of those whoare higher up on the socioeconomic ladder.
2
The fact that the rich get richerand the poor get poorer is bad enough for every day living. However, itshould be unacceptable when potentially innocent lives are ruined,especially in proceedings where individuals do not have the financialmeans by which to defend themselves on the criminal side, or haveappropriate representation on the civil side, even with our system ofcontingency fees.This Article proposes to explore potential reform of several areas oflaw, both civil and criminal, that are in serious need of review andimmediate need for: (1) serious reform of the plea-bargaining panacea for judicial efficiency accompanied with truly adequate and more equitablelegal representation; (2) reform of the jury selection process, proposingcurtailing or even eliminating voir dire and the excessive use of juryconsultants, moving towards the British system of randomly selecting jurors; and (3) dramatic change in the use of expert witnesses, with anemphasis upon greater equity on both sides of a case and potentially
1
 
See
Jeffrey J. Wallace,
Ideology vs. Reality: The Myth of Equal Opportunity in a Color BlindSociety
 , 36
 
A
KRON
L.
 
R
EV
.
 
693, 695 (2003) (discussing judicial decisions failing to achieve racialcolorblindness);
see also
Caprice L. Roberts,
The Fox Guarding the Henhouse?: Recusal and theProcedural Void in the Court of Last Resort
 , 57 R
UTGERS
L.
 
R
EV
.
 
107, 130-31 (2004) (arguing that judicial recusal evidences implicit awareness that justice can be unfair).
2
 
See
Thomas F. Liotti,
Does
Gideon
Still Make a Difference?
 , 2 N.Y.
 
C
ITY
L.
 
R
EV
. 105, 130-31(1998) (discussing the disadvantages to indigent defendants in New York);
see also
Leroy D.Clark,
 All Defendants, Rich and Poor, Should Get Appointed Counsel in Criminal Cases: The Route toTrue Equal Justice
 , 81 M
ARQ
.
 
L.
 
R
EV
. 47, 52-53 (1997) (citing the O.J. Simpson trial as an exampleof the judicial favor enjoyed by privileged defendants).
 
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 Au Revoir, Voir Dire
607
looking towards a major increase in the use of court-appointed expertwitnesses.
I.
 
Plea-Bargaining
There’s another old saying: “If you can’t do the time, don’t do thecrime.” I would like to coin another version that reads, “If you didn’t dothe crime, don’t do the time.” It is axiomatic that every virtue suffers fromthe defects of its vices. In the case of plea-bargaining, there are few virtues but many vices.
3
 The 1963
Gideon v. Wainwright
4
 
decision requiring adequate legalassistance in all criminal proceedings was justifiably applauded.
5
It should be recalled that
Gideon
was a reconsideration and reversal of the 1942 caseof
Betts v. Brady
.
6
The
Gideon
Court cited extensive precedent from whichthe
Betts
decision deviated.
7
Gideon
was an extraordinary step in thecriminal judicial process and some of the Court’s dicta is worth repeatinghere, insofar as it speaks to the themes of this article: 
[I]n our adversary system of criminal justice, any person haledinto court, who is too poor to hire a lawyer, cannot be assured afair trial unless counsel is provided for him. . . . From the very beginning, our state and national constitutions and laws havelaid great emphasis on procedural and substantive safeguardsdesigned to assure fair trials before impartial tribunals in whichevery defendant stands equal before the law. This noble idealcannot be realized if the poor man charged with crime has to facehis accusers without a lawyer to assist him.
8
 
The
Gideon
Court did not foresee the aftermath. We know, of course,that one problem lies in the ambiguity of the phrase “right to counsel” andthat all too often defendants do not receive defense attorneys of the highestcaliber, leading to dire consequences for indigent defendants.
9
The
3
The history of plea-bargaining, believe it or not, is an interesting one. It all began inMassachusetts. For a very thorough history of plea-bargaining, see George Fisher,
PleaBargaining’s Triumph
 , 109 Y
ALE
L.J. 857, 859-61 (2000).
4
372 U.S. 335 (1963).
5
 
See, e.g.
 , Ellen S. Podgor, Gideon
at 40: Facing the Crisis, Fulfilling the Promise
 , 41 A
M
.
 
C
RIM
.
 
L.
 
R
EV
. 131, 133 (2004).
6
316 U.S. 455, 473 (1942),
overruled by Gideon
 , 372 U.S. at 339.
7
 
Gideon
 , 372 U.S. at 342-44.
8
 
Id.
at 344. The
Gideon
decision criticized the
Betts
holding that the Sixth Amendment wasnot fundamental to a fair trial; therefore, the Fourteenth Amendment would not impose thefederal requirement for counsel onto the state courts.
Id.
at 338-40.
9
 
See
Ken Armstrong,
State Bar-Association Panel Urges Public-Defense Reforms
 , S
EATTLE
T
IMES
(May 11, 2004),
available at
 http://community.seattletimes.nwsource.com/archive/?date=20040511&slug=defense11m.

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