University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship Spring 1995 The rT ial 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 Kenneth B. Nunn University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Civil Procedure Commons Recommended Citation Kenneth B. Nunn, 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, 32 Am. Crim. L. Rev. 743 (1995), available at http://scholarship.law.ufl.edu/facultypub/761/ This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected], [email protected]. 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 Kenneth B. Nunn* I. FORMAL RIGHTS AND THE PERSISTENCE OF MYTH ........ 747 II. SEMIOTICS AND THE CRIMINAL JUSTICE PROCESS .......... 754 III. CRIME AND THE CREATION OF THE CONSENSUS ............. 759 A. The Consensus ................................... 761 B. The Definition of Crime ............................ 764 IV. MAKING MEANING: THE DEPICTION OF CRIME IN POPULAR CULTURE ......................................... 768 A. Crime on Prime Time Television ...................... 769 B. More Crime at Eleven: Television News and the Signification of Crime ........................................ 774 C. The Attitudinal Effects of Television Crime .............. 777 V. THE TRIAL AS TEXT ................................. 780 A . The Setting ...................................... 782 B. The Players...................................... 784 1. The Judge .................................... 784 2. The Prosecutor................................. 786 3. The Public Defender ............................. 788 C. Staging the Trial .................................. 789 D. The Trial in (Con)text .............................. 798 VI. PUBLIC DEFENDERS: CREATURES OF THE CONSENSUS ...... 800 A. Material Disparities ................................ 802 B. Systemic Disparities ............................... 806 C. The Symbolic Importance of Materialand Systemic Disparities ...................................... 809 VII. OF RIGHTS AND REMEDIES: A PROPOSAL FOR A FEDERAL DEFENDER GENERAL ................................ 813 * Associate Professor of Law, University of Florida College of Law; A.B., 1980, Stanford University; J.D., 1984, University of California, Berkeley School of Law (Boalt Hall). Deputy Public Defender, San Francisco Public Defender's Office, 1985-1986; Staff Attorney, D.C. Public Defender Service, 1987-1990. 1 would like to thank the following for their insightful comments on earlier drafts of this Article: Nancy Dowd, Alyson Flournoy, Randy Hertz, Jerold Israel, Patricia Hilliard Nunn, Charles Ogletree, Jeremy Paul, Chris Slobogin, and Walter Weyrauch. I would also like to thank my research assistants Adam Allan, Michael Kinney, Susan Gibbs and my editors at the American CriminalLaw Review. AMERICAN CRIMINAL LAW REVIEW [Vol. 32:743 A. Rights, Remedies and the Importance of Reform .......... 813 B. Beyond Asymmetry: Acknowledging the State's Dual Role in the Quest for CriminalJustice ........................ 815 C. Conceptualizinga FederalDefender General ............. 817 INTRODUCTION It is a recurring image on our television screens: a young man-frequently Black' 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 televi- sion 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 irrel- evant,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 1. I use "Black" and "African-American" interchangeably throughout this Article to refer to American citizens of African descent. "Black" denotes racial and cultural identity rather than mere physical appearance and is therefore capitalized. See Kenneth B. Nunn, Rights Held Hostage: Race, Ideology and the Peremptory Challenge, 28 HARV. C.R.-C.L. L. REV. 63, 64 n.7 (1993). 2. See Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain PublicDefenders, 106 HARV. L. REV. 1239, 1254-1260 (1993) (describing ways that public defenders can provide "zealous advocacy" for their clients). 3. It may, of course, be argued that this is so because the defendants were guilty, but this misses my point. The fact is that as soon as we believe all defendants are guilty the trial becomes an empty ritual. We must then ask why we need a trial to validate the presumed guilt of these individuals. Is it to assuage our societal discomfort for failing to alleviate the conditions that produced their crimes? 4. I note the contradiction between the terms "necessary" and "irrelevant," but it is a real contradiction that is signified by their use. While my presence may have been necessary to provide legitimacy to the proceedings, it was irrelevant to the outcome. 1995] TRIAL AS TEXT 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 compul- sory 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 5. 1 would not want to overstate my case here. Clearly, fact-finding is an attribute of a trial. It is not, however, the central attribute and, indeed, it is one that may be sacrificed for other goals. See infra Part V(D). 6.