Justice in Georgia: First Jury Trials Come to Growing Nation
March 2nd, 2011 - 4:50pm
Filed under International Security
Sometime soon, somewhere in Tbilisi, Georgia, someone will be the victim of a historic murder. Although it will be no less tragic than any other death, the victim will be the first in Georgian history on whose behalf justice will be delivered by jury verdict. Either that, or the alleged killer will be the first wrongfully accused defendant to be acquitted by jury after being afforded a presumption of innocence and a higher government burden that resembles our "beyond a reasonable doubt" standard. Or, perhaps, Georgia will experience its first hung jury. Regardless, history is about to be made in Tbilisi - although, sadly, the loss of a life will have initiated the process.
As many may know, Georgia recently and radically changed its criminal justice system, and the changes are just now being implemented. This past summer, I traveled to Georgia to teach Georgian prosecutors how to conduct jury trials with a specific concentration on murder cases. As a former criminal prosecutor and current trial advocacy professor, the experience was fascinating on every level.
Georgia and Georgians
Most Americans think of Georgia as being a little country that was essentially Russian until very recently. Georgia, however, is so much more. Often described as being situated at the crossroads of Europe and Asia, Georgia is beautiful. It is bordered by the Caucasus Mountains to the north; Turkey, Armenia, and Iran to the south; Azerbaijan to the east; and the Black Sea along the west. The people speak Georgian and are proud of gaining their independence from Russia in 1991.
Georgia's government is progressive, proactive, and pro-Western. But it has been a struggle. Joseph Stalin was Georgian, and there are still old monuments to him littered throughout the country. After emancipating itself from Russia in 1991 and officially voting out the Communist government, the Georgian government, led by former Soviet Foreign Minister Eduard Shevardnadze (a Georgian), devolved into a Mafia-controlled corrupt bureaucracy. In 2003, however, 36-year-old Mikheil Saakashvili led a peaceful revolution (called the Rose Revolution) and forced President Shevardnadze to step down. The people immediately elected Saakashvili with 96 percent of the vote in 2004. Interestingly, Saakashvili attended Georgetown University and Columbia Law School and still enjoys the strong support not only of his people but of the United States and many European nations as well. Most recently, after a short but bloody war in August 2008, Russia took back two regions in Georgia (Abkhazia and South Ossetia), and Russian troops are now stationed approximately 20 miles from Georgia's capital city of Tbilisi.
Geographically, the country is the size of South Carolina, with a population of 4.4 million. The greatest concentration of people live in Tbilisi (population 1 million). A mostly Christian nation, Georgia's commitment to religious freedom and tolerance is unique in that part of the world. In Tbilisi, for example, one can find a synagogue, mosque, Georgian basilica, Armenian Church, and Zoroastrian temple all within walking distance of each other. Tbilisi is a quaint city, currently and actively improving its infrastructure. Despite its size and location on the cusp of Asia, it has a very European feel. There are many cobblestone streets lined with shops and cafés, bars and boutiques. The Mtkvari River wends through the city, cleaving the cliffs picturesquely (though one might wish to ignore the color of the water).
The Georgian people are warm, inviting, and appreciative of the foreign aid and partnership with the United States. Indeed, the United States has invested heavily in Georgia to transform it into a successful democracy and stable economy. In 2008, for example, the United States government pledged $1 billion in aid and support. The cultural differences between Americans and Georgians, generally speaking, are impossible to miss. Unlike most Americans, many Georgians tend to stay up very late, sleep in late, and smoke all day. And although they religiously enjoy their Georgian wine, Georgian moonshine (called chacha) is a popular method of ensuring the worst hangover imaginable. From what I hear, you understand.
Traffic and driving in Georgia are challenging. As a passenger or pedestrian, you are quite simply risking your life anywhere near a street in Georgia. Ordinary Georgians make New York City cab drivers look like proverbial little old ladies. As a visiting pedestrian, crossing the street is not recommended. Georgians, however, seem to have no problem walking right into traffic that is moving between 40 and 80 miles per hour. The big streets in Tbilisi have many under-street tunnels for pedestrian crossing, yet most elect the life-threatening, above-ground challenge. Why? Most likely they're running a little behind schedule.
Far from punctual, Georgians operate under what they jokingly refer to as "GMT" - Georgia Maybe Time. Things don't start early, but they definitely end late. There is an apropos myth about how the Georgians originally received their land from God. When God was distributing land to the peoples of the Earth, so the story goes, the Georgians arrived late because they were having a party and had been drinking too much. When God informed them that all the land had been distributed, they explained to God that they were late because they were raising their glasses in praise of him. God was so pleased that he gave them the land he had saved for himself - Georgia.
Georgia's New Justice System
As mentioned earlier, history is about to be made in Georgia because, for three months now, and only in Tbilisi, Georgian courts can begin the process of hearing their first jury trials in murder cases. Last year, with the assistance of the United States and other nations, Georgia enacted its new Criminal Procedure Code (CPC). The CPC went into effect last October and for the first time in the region's 1,500-year history. The new CPC institutes an adversarial system complete with the right to trial by jury.
The CPC is nowhere near comprehensive. In places, it will raise the eyebrows of American prosecutors and defense attorneys alike. But it replaces the often corrupt, Soviet-styled inquisitorial system (with one judge) where prosecutors worked with the court to secure convictions and, not surprisingly, enjoyed a 100 percent conviction rate. It is unquestionably a much fairer system than Georgian criminal defendants have had before. Indeed, U.S. Secretary of State Hillary Clinton, while in Georgia last July, described the new CPC as a "landmark law for positive change in Georgia." U.S. Vice President Joseph Biden, also in Tbilisi in July, similarly praised the new law.
Although the CPC is just 116 single-spaced pages, divided into 333 articles, it is the entire body of law controlling Georgia's new adversarial system. It was the result of much debate and consideration. It is not annotated, and there is no case law to provide further definition or limitation. To American trial lawyers, it is shocking in its brevity and, in places, its breadth.
For example, regarding the prosecutor's burden of proof, the new law provides that "[a]ny doubt arising while evaluating evidence that cannot be resolved under the procedure established by law shall be settled in favor of the defendant." (CPC, Article 5). This essentially makes the burden of proof beyond "any" doubt as opposed to beyond a reasonable doubt. And unlike our burden of proof, it does not limit the doubt only to the elements of the crime charged. I can hear Georgian defense attorneys licking their chops in anticipation.
On the other hand, consider the CPC rule limiting the use of a defendant's prior convictions and, arguably in the last line, use of prior bad acts against defendants:
The Jury shall not be informed about previous criminal prosecution or administrative proceedings against the defendant or his/her prior conviction (unless such information is submitted by the prosecution as one of the qualifying elements of the crime, or/and [sic] is intended to verify reliability of the defendant's statements) before announcement of the verdict; neither shall they be informed about any evidence, which is not related to proving defendant's guilt. (CPC, Article 238)
Georgian judges, prosecutors, and defense attorneys read this rule as basically prohibiting the use of prior convictions. But because the CPC contains no rule like our own ER 404(b), there is no further limitation on what "evidence related to proving a defendant's guilt" means. A prosecutor could have a field day with the last sentence of Article 238.
Hearsay will be a problem for both sides in Georgia. In American courtrooms, the rules about hearsay testimony are perhaps the most complicated, least understood, and most often violated of all rules. The Georgian CPC has made it very simple:
The testimony of a witness based on information provided by another person shall be an indirect testimony. An indirect testimony shall be admissible only if the information source is identified. During the substantial consideration of a case by the court, hearsay shall be admissible evidence if supported by the body of other evidence. (CPC, Article 76)
Translation? If you can provide a name (or maybe even just a face), hearsay is admissible.
Perhaps the most significant difference between our system and theirs, however, is the way the CPC addresses closing arguments and unanimous verdicts. Closing arguments will be conducted more like the European model, where the defendant (or defense attorney) always gets the last word. This obviously favors the defendant and is unlike our system, where the prosecutor gives the last rebuttal argument because the prosecutor has the burden of proof and the requirement of unanimity to obtain a conviction.
Georgia's CPC, however, hedges the unanimity requirement in this way: in cases not carrying a life sentence, the verdict must be unanimous if it is reached within the first three hours of deliberation. Once three hours has expired, though, the jury can convict by a vote of eight out of twelve. (CPC, Article 261). In other words, the jury can sit around drinking coffee and chatting for three hours before needing only eight out of twelve to convict. Translation? A Georgian criminal prosecution just became easier to prove than an American civil trial.
My sources inform me that the U.S. Department of Justice urged the Georgians to keep the jury verdict unanimous under the new CPC. The Georgian response was that Georgians are not a "consensus" people and that Georgian citizens would not be able to arrive at a group consensus in unanimous terms. Thus, the previous compromise was settled upon. The new CPC may be amended in the future to include a completely unanimous requirement. The U.S. Department of Justice and the American Bar Association continue to jointly lobby for such an amendment.
Even with the new law's idiosyncrasies, the introduction of the jury trial into Georgian culture is a critical step toward advancing justice and due process. Once the citizenry adapts to this new criminal justice phenomenon, the government intends to phase in jury trials throughout the country and for all types of cases. The story of how Georgians adapt to jury trials remains to be written and will no doubt be fascinating to observe.
Department of Justice Trial Skills Program
Like Secretary Clinton and Vice President Biden, I was also in Georgia last July. And although we stayed in the same hotel, my trip was covered slightly less in the international papers. As a former King County deputy prosecutor and present UW adjunct law professor, I was excited to be asked to come teach and honored to participate in such a major change in Georgia's criminal justice system. I taught two three-day training sessions to groups of 25 prosecutors whose range of experience varied from one to 30 years. The training sessions were the result of a concentrated effort of manpower and resources by the U.S. Department of Justice.
In addition to me, several American federal prosecutors conducted the prosecutorial training sessions throughout the summer. In addition, American federal judges were there training Georgian judges, and defense attorneys trained defense attorneys with the help of the American Bar Association.
Teaching through an interpreter is exhausting. At the King County Prosecutor's Office, I had worked with interpreters frequently in hearings and at trial, but teaching through an interpreter was another experience entirely. My constant concern was that the translation was losing the instructive message, since the subject of jury trial advocacy is completely foreign to the prosecutors who attended the training sessions. Well, that is not entirely true - a few had seen "Twelve Angry Men" and some had watched "Law and Order."
I was able to gauge whether my lectures were sticking by monitoring the content of the prosecutors' questions. They picked up the technical concepts quickly, but the cultural differences became evident in the depth of their skepticism about whether Georgians would be fair or effective jurors.
Their system provides for voir dire to be conducted three days before the beginning of trial, and in that time the prosecutors wanted to know how much "investigating" into the jurors' backgrounds could be accomplished. When I explained that we do not do that in America, they were shocked to learn that U.S. prosecutors simply accept the jurors' answers on the juror questionnaire forms as true. They wanted to send "their people" out to "look into" the veracity of the prospective jurors' answers. Like the saying about the girl and Texas, you can take the Russians out of Georgia, but you can't take the Russian out of the Georgians.
My favorite question of the entire trip was asked during a discussion about jury selection. We were talking about peremptory challenges and the CPC's incredibly broad rule in this regard (Article 223 prohibits strikes based on "race, skin color, language, sex, belief, religion, political views, membership in any association, ethnic, cultural or social belonging, origin, family, financial and official status, place of residence, health condition, life style, place of birth, age, or any other ground"). One prosecutor from a small town asked: "Would you excuse a coffin-maker from the jury?" The confused look on my face probably prompted him to explain that because a coffin-maker would see death as necessary for his work and not as a tragedy, the coffin-maker may not make a good juror for the prosecution's side of the case. Given that there is probably a coffin-maker in every Georgian town, it wasn't such a crazy question. My answer, incidentally, was basically, "If you're in doubt, keep them out." I was hoping those words also rhymed in Georgian and betting the prosecutors would not notice the obvious theft of Johnny Cochran phraseology.
My second-favorite question was one that illustrated the depth of the change on the way. One prosecutor asked the question that the room's head-nodding told me was on everyone's mind: "Do prosecutors get fired in the United States when they lose a case?" Naturally, I explained that this does not happen and that prosecutors often lose cases under our system. My audience was baffled to learn that, to the contrary, if you lose a big enough case in America, you write a book and become famous.
The Beginning
Georgia's new system officially began in October and though there have been murders, as of press time there had been no aggravated murder in Tbilisi. Thus, someone is going about his business in Tbilisi, unaware that the sudden, violent end to his life will mark an historic change for his country, a sad and tragic beginning for a fairer criminal justice system.
Sam Chapin is a lawyer and an adjunct professor in the Trial Advocacy Department at UW School of Law.
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