Legal Reform in Korea

I spent my years in Korea as an Army JAG, which gave me regular contact with the septic morass called the Korean legal system–the one that’s gobbling up ever more U.S. soldiers due to politicization of the SOFA issue. Lost in the rage is the fact that the Korean legal system is failing the Korean people. This editorial in the Korea Herald is the first serious criticism of the Korean legal system I’ve seen. Here’s the money quote:

Democracy loses much of its meaning when police grill a citizen without the presence of a lawyer, bail is virtually blocked and the court passes its verdict on the basis of the police record, rather than on the facts confirmed in the courtroom, even if he or she is free at the polling booth. . . .

Korea has taken great strides in promoting participatory democracy, . . . [b]ut in the area of law enforcement, the legacy of the repressive colonial rule, and that of successive dictatorial governments after liberation, has not been completely removed.

Unfortunately, the modern criminal procedure was introduced by the Japanese colonialists who had few concerns about the human rights of the people of the area they occupied.

Better yet, the article backs its allegations with actual reporting that managed to dig up some damning stats comparing Korea’s pre-trial incarceration rate with those of other countries. It’s not optimistic on the prospects for reform, in case you’ve wondering. Meanwhile, across the “East Sea,” the Japanese have gotten serious about legal reform. To a lesser extent, my work allowed me to scrutinize the work of Japan’s legal system, and it used to share most of the Korean system’s limitations.

I’ve already blogged my specific complaints extensively, so I’ll take this opportunity to harp on them yet again: incompetent, uncaring, and overpriced defense counsel; no right to trial by jury or lay judges (as in Germany); sloppy and incompetent police investigation; police intimidation of witnesses; judges who base their entire verdicts on those sloppy investigations or sleep through trials; minimal standards of proof; the lack of key rules of evidence like rules against hearsay, a best evidence rule, or rules against coerced statements; abusive police practices; no real rights to defense discovery or cross-examination; no lawyers present during questioning; no right to counsel unless you’re a billionaire and can afford to hire your own; counsel seated across the room from the accused; an institutional presumption of guilt and expectation of a guilty plea; threats of prosecution used as a tool to extort cash settlements; and finally, the abject failure of the U.S. Army to enforce even minimal SOFA protections.

My own awakening began when I lost my first case as a prosecutor in Korea, a separation board based on a ROK conviction. The reason? The Korean trial procedures were so bad–including the nearly complete lack of evidence, hints of racial bias against the accused (“It was a black guy. I think it was him.”), and judges literally asleep in court–that the officers on the panel actually defied Army regulations by refusing to accept the conviction as fact and retained the soldier on active duty. Halfway through the case, even I wanted to lose it. Several months later, I defected to the defense. Since then, I’ve sifted my way through literally hundreds of Korean police reports and convictions. The best I can say for the Korean court system is that it knows that it probably sends plenty of innocent people to jail and imposes light punishments on everyone, including the guilty, to make up for it.