THE BLOG
07/17/2013 03:26 pm ET Updated Sep 16, 2013

Is Our Legal System the Best in the World?

The discussion of the Trayvon Martin case, oops, I meant to say the George Zimmerman case, is currently focusing on the jurors. I can't help but think it should focus on the judge, attorneys, and witnesses. This is where the real racism, sexism, homophobism and injustice really lies.

This case, a case branded from the start as chiefly about the victim rather than the defendant who was charged with committing a crime, hit me really hard for a couple of reasons.

One reason is that I've lived in the South. I know first-hand the feeling of unbearable wet heat, shame, hatred, and fear that makes the very air feel heavy and oppressive. I've felt the Southern milieu that William Faulkner captured so well in his novels. I met some of the characters William Faulkner portrayed in his novels.

That includes a younger version of Benjy Compson from Faulkner's The Sound and the Fury. My "Benjy," a severely retarded white teenager weighing twice as much as I did, followed me to the bus one morning and stood a few feet away, doing a weird little dance while he tugged at his pants zipper. I was truly scared by the time my bus arrived. When I mentioned his behavior on the bus that morning, the women, black and white, all chimed in with their dislike and fear of him. Apparently he had assaulted more than one woman in our neighborhood.

Why doesn't someone do something? I asked. They chimed in with one voice:

"Oh honey, his daddy be a rich doctor, he protect that boy".

"We went to the police. They don't want to upset his father."

"He's from money".

Welcome to the New South, I thought bitterly and began spending part of my miniscule paycheck from my job at the University of South Carolina's movie theater to take cabs home after dark.

A second reason is that, like Trayvon Martin, I've been a "plaintiff" in a lawsuit. Long before I sought advice from an attorney, the defendants began lying to me and to my neighbors. After I filed suit they tried every underhanded way they could to find dirt on me, even digging into my family history through my doctor.

My contingency attorney did nothing whatsoever to protect my me or my property from the defendants. By the end I felt like I was the one on trial, not the defendants.

This is why, when I indexed Gordon Tullock's Selected Works, a ten-volume set on economics, politics, and law in America, I was particularly struck by Mr. Tullock's articles about the difference between Anglo-American law and continental European law.

These two legal systems are like night and day. Continental (inquisitorial) law is a cooperative rather than adversarial investigation into all aspects of the crime that allegedly occurred. And it is a system that doesn't allow lawyers to take contingency cases.

Inquisitorial courts on the European continent operate using the exact opposite premise as our adversarial courts do. As inquisitorial courts try to find the "truth" by bringing in witnesses and experts, their judges follow the premise that the defendant is guilty until proven innocent. Thus, the defense has to prove its client is not guilty.

We Americans think this idea is a horrible travesty of justice. We insist that the only justice is that which protects the premise that the defendant is innocent until proven guilty.

But stop and look at the implications of this belief. On the one hand, criminal defendants, many of whom lack the means to hire an attorney, are often pressured by our legal system into pleading guilty under a plea bargain with the prosecutor in order to get a lesser sentence. No one believes them when they say they are innocent.

On the other hand, defendants in civil suits are presumed to be innocent. As a result, any defense attorney worth his or her fees in a civil suit will try their best to paint the plaintiff as the "bad guy". We often hear that plaintiffs in expensive civil lawsuits are "litigious," or "gold-seekers" who "frivolously" want to make a case against some unlucky, innocent defendant. Plaintiffs are considered the "bad guys".

Just think about that for awhile. Is there any incentive to cap legal fees in an adversarial system of law? And if the defendant is assumed to be innocent - doesn't that imply strongly that the plaintiff must be the guilty party? How can taking sides in a huge expensive legal battle where each side attempts to one-up the other really get at "the truth"? Because the Zimmerman trial was a high-profile criminal case, these are precisely the outstanding features of this case too.

The costs of this case for both the City of Sanford and the Zimmerman defense team are astronomical. They will run into millions of dollars. The plaintiff, Trayvon Martin, is the one who has been turned into the "bad guy". And we have no more idea what really happened that night than we did before this trial started. No one knows but the victim, now deceased, what he actually did that night. How exactly was real justice served by our Anglo-American system of law when a defendant was presumed innocent?

Inquisitorial courts in European countries and elsewhere in the world ban contingency cases, Contingency cases are what enable our American civil justice system to rack up gargantuan costs. Court cases in the US transfer an obscene amount of wealth from the pockets of plaintiffs and defendants into the pockets of not only judges and attorneys but also thousands of "expert" witnesses, process servers, court reporters, copying services, and exhibit preparers who charge 100 to 1,000 percent more than the typical market rate for the myriad services they provide to all sides of the court system.

Contingency cases are the very foundation of our economically unjust legal system, a system that tries to appear as if it were fair and equal for everyone. Contingency cases can have high costs, but they are not the cases that earn big rewards for attorneys - there is no incentive for an attorney to go all out for a contingency client the way they will for cases involving parties with deeper pockets. This is why the European courts do not accept lawyers who work on contingency. They recognize that contingency justice is not equal justice.

Our criminal justice system, on the other hand, is a cheap system. It is verifiably a racially- and when it comes to women, homophobically-biased system. Black men and lesbians, make up a disproportionately large portion of our prision population. Both groups are among the poorest people in this country. Almost all of these cases are plea-bargained right at the start by court-appointed attorneys, some of whom appear to be as poor as their clients. We don't see these attorneys and clients on TV; we only see the few defense attorneys who ultimately do get rewarded, highly rewarded for going all out for their celebrity-case clients accused of committing a crime.

In the American legal system there are also two separate and unequal classes of witnesses. American justice is a verbal equivalent of a football game where expert witnesses get paid phenomenal amounts of money to provide entertainment for the onlookers. Expert witnesses who testify and/or prepare exhibits and evidence, along with court employees, including judges, court reporters, and guards make a huge amount of money.

At the same time, actual witnesses to events involved in discussion of a legal cases are not even paid the pitiful pittance that members of the jury get for serving the justice system's needs. Actual witnesses must pay for all of their own costs and lost wages to show up and testify. Unlike expert witnesses, actual witnesses in an American legal case aren't paid a dime because presumably that would lead us to think that their testimony was tainted by money.

Actual witnesses in an American legal case do not have to be treated with the respect accorded to expert witnesses either. They are "outsiders," only allowed into the game on a temporary basis. In particular, witnesses for the plaintiff or in a criminal case, witnesses for the prosecution, are showered with the same hostility as the "presumed-guilty-until-proven-innocent" plaintiffs they are purportedly testifying on behalf of.

Watching even a small portion of the questioning of Rachel Jeantel, Trayvon Martin's friend who was on the phone with him as he was killed, and Mr. Martin's mother, Sabrina Fulton, I was appalled. I could only admire the strength and patience of these two women of color as the defense attempted to utterly demolish their integrity to try to score points for their client at the expense of these women.

As I observed the defense attorneys' torturous attempts to twist these two witnesses' words into what the defense wanted jurors in the case to believe about George Zimmerman and repeatedly imply that these two witnesses were lying about a close friend and a son, all I could think was - unprintable on this page.

Justice for all?

The Zimmerman defense attorneys' way of challenging others who didn't have the same privileges and views as they do was contemptuous, condescending, bullying, and totally manipulative, all wonderful ways of getting at the "truth" of a case, don't you think?

In his articles such as "Legal Heresy" from Virginia Political Economy (volume 1) and in Law and Economics (volume 9 of his Selected Works), Professor Tullock pointed out Americans' ignorance about how few places in the world have adopted our legal system and why other countries have not followed our footsteps. In fact, our legal system is not one the rest of the world thinks is superior. And with good reason!

Who would imagine a system superior that supports an entire class of wealthy parasites? Our justice is meted out by a feudal system of power that controls every aspect of of the law, with no expenses for themselves spared. It's a gigantic boondoggle. Who would believe this is the best legal system anyone could have?

Who could consider a legal system superior that delivers justice to only a tiny, highly-privileged group of people? Who could still believe that trashing a victim, witness, or anyone else involved with the legal system who isn't well-off in a country where most well-off people are white, male or straight, isn't racist, sexist and homophobic behavior? How can we condone an adversarial system of justice that is built to encourage this kind of behavior?

And after seeing all this, who can remain so ignorant as to not even wonder whether countries in Europe or Africa or practically every other place on the planet might just have a court system that's way better than ours? Here's a brief summary of the differences between our legal system and the one the rest of the world prefers. Please take a look and share your thoughts.