The trial as text: allegory, myth and symbol in the adversarial criminal process - a critique of the role of the public defender and a proposal for reform.

• Author: Nunn, Kenneth B.

Introduction

It is a recurring image on our television screens: a young man - frequently Black(1) and poor - is hustled from police car to courthouse door. As two burly police officers grip him tightly by the arms, he tries to hide his face with his hands. His efforts are futile. He succeeds only in exposing his handcuffs to the bright television lights. In the background, a reporter's urgent voice describes the despicable act which led to the young man's capture. His anguished face, framed by gleaming handcuffs, is the garish image we remember.

When I was a public defender, I would watch episodes like this with dread. "What if," I would wonder, "that young man was to become my client at the next day's arraignment call? Could I be of any help to him? Or would I be essentially useless, since he had already been tried and convicted on television and in the hearts and minds of any potential jurors?" Certainly, I could do something. I could ameliorate the onslaught of state power by holding the government to its promises and making sure no shortcuts were taken.(2) Occasionally, in an exceptional case, I might even win an acquittal. But, by and large, in case after case, my presence has had little bearing on the outcome. In the vast majority of cases, the conclusion was foregone, the conviction assured, the case open and shut.(3) I was a necessary, but irrelevant,(4) player in a game with a predetermined outcome.

We Americans often speak of our criminal procedure as if it were one of the main bulwarks of democracy. We like to consider the criminal trial, with its adversarial process, as one of the great institutions of abstract justice. But the American criminal justice system is a sham. The centerpiece of the criminal justice system - the trial - is itself a sham. It is not, in the main, a mechanism for determining the truth.(5) In the majority of criminal cases, the truth is already assumed from the start. While belief in the presumption of innocence is professed, the defendant is treated as if his guilt were assured. In reality, it is up to the defendant to prove, if possible, his innocence and to somehow show that he is an exception to the rule.

More concretely, the criminal trial is flawed because it is not adversarial (or at least not as adversarial as it should be). Instead of two evenly matched adversaries, the advantages are decidedly weighted in the prosecution's favor.(6) The prosecution has tremendous resources at its disposal that are ordinarily not available to the defense: police investigators, government laboratories, a professional legal staff, an endless supply of expert witnesses and, most importantly, a far greater reserve of credibility.(7) This imbalance is even greater when the defendant is represented by a public defender. This is doubly cruel because the defendants who are at greatest risk in the criminal justice process - those with the least personal resources - are the ones most likely to be represented by public defenders.

Of course, the defendant has the protections of the Fifth and Sixth Amendments - including the right to a fair trial, the right to effective assistance of counsel, the right against self-incrimination, the right to compulsory process, the right of confrontation, and the requirement of proof beyond a reasonable doubt - but these are, by and large, merely formal protections. How defendants are treated in fact is what is important, not simply abstract theory. To have any relevance, the formal protections afforded to defendants must be appraised in the cultural context which gives them meaning.

Trials take place within a culture, a culture which gives us certain ideas about the prosecution and certain opinions about the defendant. Every culture produces its own belief system. This belief system is transmitted to each member of society through such means as formal educational systems, media, authoritative pronouncements and word of mouth. A cultural belief system allows us to attach meaning to symbolic representations that appear in culturally determined contexts. Thus, the imagery of the courtroom - the "dignity" of the proceedings, the "impartiality" of the judge, the adversarial posture of the litigants - and the juxtaposition of symbols of authority - the flag, the judge's black robe, the police officer's badge - all communicate culturally determined meaning to prospective jurors. There should be no mystery as to what meaning it is that the criminal justice system communicates to the American public. Our society is one where jurors are taught repeatedly, through both obvious and subtle means, that the preferred outcome of any trial is the conviction of the accused.(8) In an environment such as this, a requirement of proof beyond a reasonable doubt is of little value.

The image of the accused presented in criminal procedure books - that of an average citizen, who is merely "suspected" of crime, and who consequently retains his rights and social status until the state meets a heavy burden of proof - is a widespread fraud. Instead, the defendant plays the mythical role of "Criminal" in a broader morality play, the well-known script of which allows the audience to boo and hiss as soon as the villain enters the scene. The defendant in a criminal case is supposed to lose, just as a villain in a Hollywood movie is also supposed to lose. More often than not, a criminal trial consists merely of two groups of actors playing their appointed parts - the prosecution in white hats, the defense in black.

The criminal trial, then, is an allegorical tale disclosing the way that society would like to discover, expose and exorcise crime. As allegory, the trial does more than merely determine the fate of the defendant standing trial, although it does that too. The trial represents something deeper. The trial expresses fundamental notions about justice and injustice, right and wrong, law-abiding and crime, good and evil. Within the confines of this allegory, the public defender's role is essentially symbolic. The public defender demonstrates that justice is being done and that the trial is fair. Symbolically, it matters little whether the public defender can actually assist the defendant because, as a mythical "criminal," the defendant is always guilty.

The allegorical nature of the trial is not apparent on the surface. It becomes visible only when one is aware of underlying notions of justice and attitudes about crime. Then one can trace the relationship of these notions and attitudes to the adversarial process. In this article, I use semiotic theory(9) to explain how the adversarial criminal trial is given substance and meaning that belies its formal description. I situate the criminal justice system in its broader societal context, and then employ critical media analysis to "read" the trial and disclose its allegorical form. Semiotic analysis reveals how our perceptions of guilt and innocence, of criminals and victims, of prosecutors and defenders, are ordered to fit a profound and pre-existing structure.

I begin by describing what I call "the myth of criminal justice." In Part I, I disclose the parameters of this myth by presenting the formal protections that the right to counsel, along with the defendant's other trial rights, afford to those accused of crime. In Part II, I explain semiotic theory and how it can be used to determine the social construction of meaning. I point out that by placing the defendant's trial rights in their cultural context, semiotics can reveal the functional meaning of the adversarial process. Next, in Part III, I employ semiotics to disclose how the criminal justice system is structured by a broader discourse about crime and criminals. I show how ideas about crime work to limit our conceptions of justice, so that defendants' rights may be articulated, but not taken seriously. In Part IV, I view popular culture through the medium of television. I employ the window of television to illustrate how crime is represented in ways that separate criminals from society and define them as "bad" and undeserving of rights.

I also examine how the cultural images represented on television play out in the context of a criminal trial. In Part V, I point out how these latent cultural images, privilege the prosecution and disfavor the defense. I argue that the discourse on crime skews the adversarial process and makes it difficult for defendants to receive a fair trial. In Part VI, I demonstrate how public defenders are especially handicapped in their ability to convince jurors of the innocence of their clients, since they too lack credibility in the eyes of the public. Finally, in Part VII, I suggest a way that the federal government could use its persuasive power to make the adversarial process more meaningful. I propose the establishment of a Federal Defender General in order to improve the image and effectiveness of public defenders.

1. Formal Rights and the Persistence of Myth

   The adversary system(10) is a carry over from the English common law. The system is not mentioned in the Constitution. Nor is it preserved, by and large, by statute. Yet, the adversary process is the linchpin of our criminal justice system. A person charged with a crime is not just the accused, but the defendant - someone who retains the capacity to combat and contest the government's accusations.

   The adversary system receives praise from many quarters because, it is argued, the self-interest of the parties will motivate them to more thoroughly prepare their submissions to the fact finder than if a more dispassionate investigator were charged with the responsibility.(11) Also, it is assumed that a disinterested fact finder is less likely to show bias because he or she has no vested interest in the way that the investigation is conducted or how trial preparations are made.(12) The adversarial system works on the assumption that truth will prevail from the conflict between two...