Chief Justice Lee Yong-Hyun Is Right About Reforming the Courts

Finally, the process of raising the wreck of Korea’s judical system is off to a halting start. But the first effect of the reforms has been to elucidate just how awful the system really is. For example, prosecutors are just starting to submit written arraignments. In the past, they’d simply presented the courts with reports of police investigations with exhibits, long before the defense had an opportunity to present anything. It’s little wonder, then, why the conviction rate was, and is, at Soviet levels; the courts were literally pre-judging the accused:

In fact, since the courts implemented the [open trial] system in 2003 on a trial basis, the rate of not-guilty verdicts increased from 0.79 percent in 2002 to 1.12 percent in 2004.

If I’m reading this correctly, if the Korean courts indict you, conviction is a statistical certainty.

The second effect is to demonstrate just how far the system has to go. So far, the experiment isn’t necessarily going so smoothly.

The first trial of the apartment reconstruction corruption case last year, cited as a typical case tried under the new system, took as many as 23 sessions.

And remember, there’s no double jeopardy there. They can come up short 23 times, but until the courts refuse to take another appeal, the police and prosecutors can still get another chance to find another witness to incriminate you. And remember: you’re paying exorbitant legal fees for all of this — much higher than in the United States, because lawyers are in such short supply there. You’re also paying the cost of your own investigators, assuming you want your defense to be backed up by exculpatory evidence. Not all of these are uniquely Korean problems, of course, but there are differences of degree.

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The next problem is not unique to Korea, either. One very good trial lawyer once told me that Rule Number One is, “All the witnesses lie.” I’ve found that to be a slight exaggeration. I wish I could dispense with “slight.” Alas. Not everyone seems to be taking the witness’s oath seriously.

The number of people found guilty of perjury increased from 1,208 in 2003 to 1,669 in 2005. Numbers indicted on charges of libel swelled from 5,420 in 2000 to 6,438 in 2004.

Believe it or not, that could be a good sign. It could mean that someone is actually learning to do some fact-checking and cross-examination. On the other hand, how many of those cases, do you suppose, were related to the Korean custom of accusers dropping charges in exchange for a cash settlement? I had two cases where I strongly suspect that pairs of taxi drivers did the swoop-and-swap on my clients. One was hit-man, the other played witness. Can’t prove it, of course, but I’d bet anyone a bottle of Kim Jong Il’s best cognac.

It’s hard for me to figure why the Chief Justice was ran into such a sh*tstorm over his criticism. Whatever the man’s politics on other issues, he’s absolutely right that a system that relies on a prosecutor’s paper case is hardly a truth engine.