My name is Boris Freesman. I am a cybernetician and a retired trial lawyer and conciliator/mediator living in Toronto, Canada.
“Inside, here” I knew that I wanted to become a lawyer when I was about 9 or 10 years old. My favorite uncle told me that is what I should do if I wanted answers for the riddles and questions I was asking him about.
Since I was old enough to read, I had been reading and thinking about myths, stories, fables and a small collection of books on ethics that my sister had. As a result, I had compiled a small collection of questions that I preferred to muse about rather than do almost anything else: Would you rather be the wealthiest or the most respected man in the city? Would you rather have power or integrity? Would you rather be feared or respected? Would you rather take advantage of others or help them? Would you rather win or be fair?
And, perhaps above all, what I imagine must have been one of the first words I spoke and surely the first question I must have asked: Why?
By the time I celebrated my 40th birthday, I had become a successful and highly regarded trial lawyer. But I had also developed troubling and lingering suspicions that there was something rotten "outside, there" in the state of the law... rotten in the Shakespearean sense.
Either that, or there was something rotten inside, here.
I felt what I was doing had very little to do with justice. Or, at least, with my understanding and sense of justice. Rather, I felt I was participating in a ritualized game. The puzzle in any given case was to discover which were the right buttons to push in order to win and the objective was to push them. And for that I got paid a lot of money.
A trial lawyer – and especially defence counsel in a criminal case – has a very unique vantage point from which to observe and evaluate a case. If we are thorough with our homework and preserve objectivity, we know more about its facts and circumstances than anyone else. We acquire a better informed and more comprehensive perspective even than the judge who tries it because we have access to information that never makes it into the courtroom.
So inside, here I knew I was losing cases that I should have won and winning cases I should have lost. That did not sit well.
By the time I reached 40 I had also acquired another collection of enigmas – or, perhaps more accurately, the riddles of my youth had resolved themselves into another set of conundrums: Who am I? Why am I here? What should I do? What is justice? Why is this such an unjust world? How do I acquire wisdom?
The quest that has dominated my thoughts and energies all of my life has been, still is and will always be to penetrate these mysteries and find sensible solutions.
I have written thousands of letters, aphorisms, essays, articles, lectures, dissertations, memoranda, papers, legal pleadings, factums, etc. over the past 50 plus years. Each of them is a variation upon these themes.
I agree with Albert Einstein that, in these things, imagination is more important than intellectual knowledge. Knowledge is limited; imagination is unbounded.
The trial processes – the system of administration of justice – is not concerned with truth. It is concerned with evidence. It is not about what happened on the street, but about what happens in the courtroom, from the witness stand. The difference between the two often is monumental.
Put the other way around: truth is what the evidence establishes. It is obvious what must happen if the evidence is inaccurate, mistaken or false.
And evidence is not concerned with determining the objective facts but only with what can or cannot be proved in accordance with a set of rules forming part of a paradigm of the law formulated in the 18th century. That is, before the invention even of the steam engine.
The facts do not cease to be the facts just because they cannot be proved in a trial under a stiff set of conventions.
When the evidence then admissible under the existing paradigm was sufficient to prove that the Earth was flat, the Earth did not cease to be a globe. When the admissible evidence proved that the Sun revolved around the Earth, it did not cease to be the other way around.
Every situation, every process, every event, evolves and occurs as a consequence of a very specific, exact, complex and unambiguous set of incontrovertible facts and circumstances. There always exists a unique, objective and unequivocal explanation. Whether or not we may discover, know and prove it is a different question. Whether or not our present ideas and theories about evidence and proof still make sense is yet a further question.
How can there be justice without truth?
What troubles me deeply is that under the rules of our existing paradigm of criminal justice, for example, we continue to condemn a very large number of innocents and acquit an exponentially larger number of criminals. I can’t think of a better description of injustice: crime does pay... and very well, too!
And at least equally as troubling are my own observations and experience that have persuaded me that an overwhelming majority of the people deeply involved with the justice system – the judges, lawyers and police, for example – are honest, intelligent, talented and compassionate men and women.
Which leads me to an inescapable conclusion: If it is not the people, then it must be the system. The way the legal system works guarantees injustice.
To compound the felony, our legal system is the foundation upon which rest all other societal institutions: economic, political, social, educational...
I welcome your feedback: ideas, criticism, support, suggestions...
