Not too long ago I wrote about my experiences with the American Jury system in the 21st Century.  It is broken.  End of story.  Any acquittal you read about is an anomaly – a celebration of truth and luck in a world gone wrong.  Juries are no longer the last check against tyranny they were intended to be in ancient Rome or Athens.

Most people plead guilty to criminal offenses.  Most of the rest elect to the convicted (not just tried) by a state appointed and employed Judge.  The small few who make it before a jury – not of their peers – are usually found guilty.  Everything goes the state’s way. Many celebrate this fact. I do not.  We were supposed to have due process and equality under the law.  This is especially important to the little person facing the endless resources of the government.  It is also, now, a fiction.  We have none of it.  Just convictions.

(Temple of doom.  Google.)

The defendant in the Boston Bombing trial, Dzhokhar Tsarnaev, was convicted and sentenced to death.  His was one of the oddest trials I have ever heard of.  It lacked even the plausible credibility of some Soviet-era show trials.  In June Tsarnaev learns whether the judge will condemn him to die.  He surely will be executed.

If, indeed, he did commit the alleged terror attack, Tsarnaev deserves to die.  However, as I have noted before, there is amble evidence to suggest a government link to the plot. If the government is involved in any way, there is usually a plot participation.  This might not excuse Tsarvaev but it would implicate others.  It won’t though.  There was absolutely no mention or murmur of this in court on Tsarnaev’s account.  Alarmingly, there was no murmur at all from the defendant.  There was no defense whatsoever.

In a way the defense strategy made some sense.  They knew, as do I, there is no hope for honest truth or justice in an American court.  Accordingly, they adopted an approach which plead Tsarnaev guilty while attempting to shift the blame to the defendant’s dead brother.  The ultimate attempt was not to evade a conviction (a given) but, rather, to avoid the death penalty.  The approach did not work.

The government opened with a sympathetic case – no-one likes terror attacks on innocent people.  The defense then opened by acknowledging the crime and the defendant’s participation therein.  “Yeah, he did it. But…”  They closed the same way.

Then, the government called witnesses.  These were victims who had survived the attack.  They told the jury and court of their terrible injuries.  Terrible as they are, they do not establish, at all, any criminal culpability.  No mind – Tsarnaev had already admitted guilt. In most cases these statements of victims come at the very end of the trial – after guilt has been adjudicated.  They are usually used to determine what level of punishment is deserved of the convicted.  This case saw all phases conveniently wrapped into one show.  No challenge or examination at all was conducted on behalf of the accused.

I, as a defense attorney, could have lessened the blow of these witnesses but asking them if they had ever seen (in person) my client before.  None of them had.  They had no way to link Tsarnaev to the crime scene.

That tenuous link came from a video and pictorial collage presented by the government. Cameras are everywhere these days and there were numerous shots of the Tsarnaev brothers at the Marathon.  Nothing showed them setting off or planting the bombs. Then again, the defendant had already admitted his guilt.

No challenge came to this presentation.  There was equal evidence of former government employees – current “security” contractors at the event – with the same backpacks and in the same places as the accused.  The difference was that several (not presented) photos showed the brothers leaving with laden backpacks while the agents walk away unencumbered.  Nevermind.  Guilt admitted, remember.

The government presented weak findings as to how the alleged bombs were made.  A good munitions expert could have dissected these as ridiculous.  None did.  All evidence was submitted without protest.  There was then the matter of an alleged admission written on the walls of a hideout boat.  No objections.

Given what they were presented with the jury rightly found the defendant guilty.  He lost his gamble as to the jury’s recommendation of death.  That should have come as no surprise.  To the open-eyed and open-minded it should come as an alarm as to where the system has settled.

This is no system in which to place any faith of fairness.  The prosecution will get whatever it seeks in most cases.  Nothing will change.  There are efforts to reform the game but it is too far gone.  There is no public support for such efforts.  Thus, any alternative seems logical, if it be at all feasible.

Before I go further let me state that everyone is entitled to a defense at trial in cases of alleged criminal offense.  Ages ago several British soldiers were tried and acquitted in the Boston Massacre.  Their attorney believed in justice, no matter how unpopular the accused.  His name was John Adams.  You may have heard of him, he served as our second President.

There is an older, if more archaic, alternative to the jury system in criminal or civil cases.  You have never heard of it.  No American lawyers understand it nor would they encourage it.  The Courts will surely be averse to it though it has never been stricken from the codified law (like that matters anymore).  No law school will teach it.  No agent of the state would wish to face it.  No right-minded person would assert the alternative. But, it is there.

There is (or was) a thing called Trial by Combat.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Wikipedia (May 27, 2015).

(Fighting it out.  Google.)

Wikipedia says this was a Germanic legal tradition, which is true.  However, the custom was known to many other ancient cultures.  Also, it continued into the somewhat modern age.

The defense continued in regular practice into the Seventeenth and even Eighteenth Centuries.  The accused or defendant would assert or demand his right. The prosecutor or plaintiff or a chosen champion would then join the accused in singular combat.  This was to the death or to a submission – usually death.  I cannot imagine too many district attorneys, police officers, or offended ex-wives going along, willingly, with such strategy. Then again, I cannot see most fat, lazy Americans demanding such a right let alone conducting such as trial.

In 1774 an attempt was made in Parliament, partly in response to the Boston Tea Party, to abolish the practice.  This and all other reform efforts failed.  No bill or law has ever rescinded the ancient right.  The right was in place, part of the English Common Law, when the American colonies declared independence from the King.  Thus, the right remained available to Americans.  Mostly, such spectacles took form in gentlemanly duels – outside of the courts.  Alexander Hamilton participated in one of these with fatal consequences.

Still, no state or Congress has ever formally repealed the practice.  The courts have not definitively ruled on it either.  This is the case in old England as well as in America.

As recently as 2002 a demand for trial by combat was made in Britain.  In Suffolk a man made the demand as his defense in an administrative hearing concerning the local DMV. The magistrates in charge, deeming, him deranged at best, ignored him and fined him a small sum for failing to register (or de-register) his motorcycle.  No appeal was made.

You would likely never assert this right as a defense or alternative course of trial.  Nor would I.  However, if facing severe criminal charges and punishment, trial by combat might mean the difference between prison and a mental hospital.  Which seems better to you?

If, though, you should succeed in joining a wager of arms, you may count yourself among the fortunate, even mythical, few.  In a federal criminal matter you may consider yourself Fingolfin doing battle with Melkor himself.  May the honor and victory be yours.