SECTION: PERSPECTIVE; Pg. G-03

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HEADLINE: Fixing ills of justice system

BYLINE: Al Knight

BODY:
University of Colorado law professor William T. Pizzi has made a strong case for reform of the nation's criminal justice system in a new book "Trials Without Truth."

The volume, packed with comparative information from other countries, arrives at a propitious time.

Many, perhaps most, Americans have become acutely aware that something is wrong with the American criminal justice system. The proof can be found in some highly publicized cases involving, say, O.J. Simpson, Louise Woodward or Colin Ferguson, but is also visible in many local settings. Some jurisdictions plea bargain all but a few cases, often in ways that seem to bear little relationship to the original charge. Instances of jury nullification seem more numerous, which as Pizzi explains, has the perverse effect of encouraging still greater attention to the selection and makeup of the jury. A highly adversarial process is made more so. Pizzi's central point is that the United States need not be tied to its existing system, that it is possible to imagine borrowing practices from other countries in ways that would improve the quality of criminal justice here. He specifically borrows examples from the Netherlands, Germany, Norway and England to make his argument that there are other, and sometimes better, ways of fact finding, evidence presentation, witness questioning, and sentencing.

Along the way he touches upon some very touchy issues, including the role of the Supreme Court and the makeup of modern juries. As to the former, he is critical of the sweep of many court decisions. The court may have achieved a kind of national uniformity, but its rulings have had many unintended consequences. The court has often acted as a kind of legislature, he says, but lacks both the opportunity and resources to fully consider the effects of its decrees. Court edicts involving search and seizure, the questioning of witnesses, the selection of juries and the encouragement of appeals have been especially troublesome and are given special attention.

Pizzi has done a special service in giving needed attention to the somewhat odd role played by American judges in criminal trials. He notes that on one hand they usually play passive roles in trials, but later wield enormous power in sentencing. He argues that European models, in which judges play a more active trial role, and in which lay persons share fact-finding authority with professionals, might be an improvement.

Judges in some European countries are obliged to summarize and discuss evidence with the jury. In contrast, here jurors are often asked to make sense of the proceeding until the end of the trial when the law is explained to them in a series of sterile instructions.

Pizzi explains why the jury selection process works in ways tending to exclude some of the better educated and qualified jurors from American service.

Having made his case for reform, Pizzi eventually casts about for someone to carry the reform banner and runs into a huge problem.

"There is today no leadership from the bar for the sort of structural reforms the system needs," he says, adding that many lawyers know something is wrong but don't know where to begin.

That judgment may be much too gentle. The fact is that the bar is much too absorbed in what amounts to a social and political agenda to have much time to worry about the quality of American justice. Its conventions are characterized by a barrage of resolutions on all manner of social issues from abortion to gay rights.

So, could a special commission, the equivalent of a Royal Commission in England, draw needed attention to the manifest problems in the American criminal justice system as Pizzi hopes? Maybe, but only if the membership is broadly based and appointed by a president who is neither a member of, nor beholden to, the legal profession. Where do we find one of those? Al Knight (aknight@chaffee.net) is a Denver Post columnist and editorial writer.

LOAD-DATE: May 03, 1999