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Towards the end of his glittering career, the great Japanese director and sensei Akira Kurasawa, whose early film Rashomon (1950) is a textbook illustration of the necessity for Turnbull guidelines, directed Ran (1980) the greatest adaptation of Shakespeare’s King Lear and the Japanese word for chaos. We are perilously close to that point in the justice system. And we need sensei. Wise people of moderation.
And Justice for All, directed by Norman Jewison, may have played as a caricature and comedy of the darkest hue in 1979 but its elements of absurdity increasingly feel like a representation of reality today. The plot is impossible to summarise in totality and would take up the entire column.
Al Pacino plays Arthur Kirkland, a gifted and socially conscious Baltimore defence lawyer trying to get an innocent man in a case of mistaken identity released from remand. Judge Fleming (John Forsythe), a venal and corrupt judge, will not budge and Kirkland (Pacino) ends up in jail on a contempt-of-court charge. When the judge is later accused of rape he blackmails Kirkland, in effect his most-hated lawyer, into defending him by invocation of a historic breach of client privilege.
Alongside a traumatic caseload, inappropriate romance with a legal ethics committee member (Christine Lahti), erratic behaviour from friend and partner (Jeffrey Tambor) and with Grandpa Sam (Lee Strasberg) becoming increasingly unwell, Kirkland begins his representation of Fleming. He receives extra-curial information – photographs – and shows these to the accused who admits to the crime, even joking during the hearing that he would like to do so again. Pacino abandons his thus far effective closing speech and throws his client to the lions, with the certain realisation that he is ruining his career. Rebuked by the trial judge (Jack Warden) for being out of order, he rages:
‘You’re out of order! You’re out of order! The whole trial is out of order! They are out of order.’
The photographs were a way out for Kirkland. He was now certain of his client’s guilt and professionally embarrassed. But these are technical issues. The film is, after all, about a judge accused of a crime. Judges are human beings and like all the speckled timber of humanity aren’t always good or just. Institutional restraints of judging often condition moderation but even the greatest judges have committed crimes or been accused of same.
I would add that relationships between the advocate and the tribunal should never be too proximate. Familiarity can breed both affection (nemo judex in causa sua) and contempt. Hostility of a judge towards a lawyer can break them, as I have witnessed first-hand. There is also, of course, the concept of ‘judgeitis’, known as ‘black-robe syndrome’ in the United States. The more disperse profession in the United Kingdom facilitates a degree of imposed distance in that advocates are unlikely to be before the same judge all the time.
Apposite to our collective present situation, Kirkland’s closing peroration in And Justice for All is intrinsically about the rule of law and the concept of order. In the UK, one significant proposal to cure the current chaos in our courts – brought on by years of chronic underinvestment and COVID-19 – is to curtail the right to jury trial for so-called lesser offences, two years and under. Is the proposed movement towards judge-only trials a panacea that neglects what ought to have been done?
Solutions? Prioritisation and investment are needed to stop the decline of our criminal justice system, not savage adjustment. A degree of ordered informality should be preserved. Flexibility, politeness, depersonalisation and collegiality, with due process preserved. And that includes jury trials in my view. Two caveats: the fraud innovation shows how sometimes juries can be out of their depth; and non-jury courts do work where there is a defined national emergency – in my view a necessity in certain jurisdictions. But only if the judiciary is independent. And moderate. The antidote to chaos and route to justice for all.
David Langwallner is a graduate of the Harvard Law School and the London School of Economics. He is a barrister at 1MCB and was 2015 Irish Lawyer of the Year for his work as director of the Irish Innocence Project.
Towards the end of his glittering career, the great Japanese director and sensei Akira Kurasawa, whose early film Rashomon (1950) is a textbook illustration of the necessity for Turnbull guidelines, directed Ran (1980) the greatest adaptation of Shakespeare’s King Lear and the Japanese word for chaos. We are perilously close to that point in the justice system. And we need sensei. Wise people of moderation.
And Justice for All, directed by Norman Jewison, may have played as a caricature and comedy of the darkest hue in 1979 but its elements of absurdity increasingly feel like a representation of reality today. The plot is impossible to summarise in totality and would take up the entire column.
Al Pacino plays Arthur Kirkland, a gifted and socially conscious Baltimore defence lawyer trying to get an innocent man in a case of mistaken identity released from remand. Judge Fleming (John Forsythe), a venal and corrupt judge, will not budge and Kirkland (Pacino) ends up in jail on a contempt-of-court charge. When the judge is later accused of rape he blackmails Kirkland, in effect his most-hated lawyer, into defending him by invocation of a historic breach of client privilege.
Alongside a traumatic caseload, inappropriate romance with a legal ethics committee member (Christine Lahti), erratic behaviour from friend and partner (Jeffrey Tambor) and with Grandpa Sam (Lee Strasberg) becoming increasingly unwell, Kirkland begins his representation of Fleming. He receives extra-curial information – photographs – and shows these to the accused who admits to the crime, even joking during the hearing that he would like to do so again. Pacino abandons his thus far effective closing speech and throws his client to the lions, with the certain realisation that he is ruining his career. Rebuked by the trial judge (Jack Warden) for being out of order, he rages:
‘You’re out of order! You’re out of order! The whole trial is out of order! They are out of order.’
The photographs were a way out for Kirkland. He was now certain of his client’s guilt and professionally embarrassed. But these are technical issues. The film is, after all, about a judge accused of a crime. Judges are human beings and like all the speckled timber of humanity aren’t always good or just. Institutional restraints of judging often condition moderation but even the greatest judges have committed crimes or been accused of same.
I would add that relationships between the advocate and the tribunal should never be too proximate. Familiarity can breed both affection (nemo judex in causa sua) and contempt. Hostility of a judge towards a lawyer can break them, as I have witnessed first-hand. There is also, of course, the concept of ‘judgeitis’, known as ‘black-robe syndrome’ in the United States. The more disperse profession in the United Kingdom facilitates a degree of imposed distance in that advocates are unlikely to be before the same judge all the time.
Apposite to our collective present situation, Kirkland’s closing peroration in And Justice for All is intrinsically about the rule of law and the concept of order. In the UK, one significant proposal to cure the current chaos in our courts – brought on by years of chronic underinvestment and COVID-19 – is to curtail the right to jury trial for so-called lesser offences, two years and under. Is the proposed movement towards judge-only trials a panacea that neglects what ought to have been done?
Solutions? Prioritisation and investment are needed to stop the decline of our criminal justice system, not savage adjustment. A degree of ordered informality should be preserved. Flexibility, politeness, depersonalisation and collegiality, with due process preserved. And that includes jury trials in my view. Two caveats: the fraud innovation shows how sometimes juries can be out of their depth; and non-jury courts do work where there is a defined national emergency – in my view a necessity in certain jurisdictions. But only if the judiciary is independent. And moderate. The antidote to chaos and route to justice for all.
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