How fair was that trial?

Jesus’ trials were fairer than GITMO ones.

Good Friday, 2008

The trials of Jesus that led to his execution were, if the Gospel accounts are credible, miscarriages of justice. But they were trials, not a lynching or assassination. Exactly how unfair were they? How do they compare to another set of trials that have come under heavy criticism, those at Guantanamo Bay? Seeing as the Administration responsible for them advertises its allegiance to the person of Pilate’s victim, if not to his teaching.

Standards of justice change. I’m not competent to apply the contemporary ones, in one sense the most appropriate; but it’s still illuminating to hold these trials up to our benchmarks. A reasonable list of 22 criteria for a fair trial was published in 2000 by an American legal NGO, Human Rights First.

The rights are not of equal importance and some of them are anachronistic, but the list is a professional modern attempt, dating from just before 9/11, to capture what we mean today by a fair trial. I’ve renumbered for my own convenience.

Table 1: Human Rights First’s criteria for a Fair Trial

A. Pre-trial rights

1 Prohibition of arbitrary arrest and detention

2 Right to know the reasons for arrest

3 Right to legal counsel

4 Right to a prompt appearance before a judge to challenge the lawfulness of arrest and detention

5 Prohibition of torture and the right to humane conditions during pre-trial detention

6 Prohibition of incommunicado detention

B. The hearing

7 Equal access to, and equality before, the courts

8 Fair hearing (equality of arms)

9 Right to a public hearing

10 A competent, independent and impartial tribunal established by law

11 Presumption of innocence

12 Prompt notice of the nature and cause of criminal charges

13 Adequate time and facilities for the preparation of a defense

14 Trial without undue delay

15 Right to defend oneself in person or through legal counsel

16 Right to examine witnesses

17 Right to an interpreter

18 Prohibition of self- incrimination

19 Prohibition of retroactive application of criminal laws

20 Prohibition of double jeopardy

C. Post-trial rights

21 Right to appeal

22 Right to compensation for miscarriage of justice.

Let’s try to apply them to the Gospel accounts. These report on two distinct trials of the radical peripatetic rabbi from Nazareth. He was arrested by a Temple posse, taken before the Sanhedrin, and charged with the religious crime of blasphemy, viz. falsely claiming to be the Messiah. The charge was true, unless you think as Christians do that the claim was accurate. But the Sanhedrin no longer had jurisdiction to carry out the death penalty, or thought it imprudent to do so. So the Temple leadership sent Jesus to Pilate for a second trial for sedition. Pilate had clear jurisdiction as Roman procurator. The charge was false, but Pilate had Jesus executed anyway out of fear or calculation.

There are problems with this account. The evangelists, especially John, were not unbiased neutrals: they probably tilted the blame away from Pilate and on to the Temple. By their own reckoning, the disciples had to take cover (eg. Peter), weren’t in a good position to observe events, and were uneducated men. But the evangelists were writing about fairly recent and traumatic events, in the context of sharp conflicts in the new sect over the issue of Jews and Gentiles. Many in their audience would have known about Roman trials and Jewish religious courts, so the accounts won’t be fantastic. It’s very unlikely that Jesus’ trials were any more irregular than they report. For the comparison, we have to take the accounts at face value.

Here’s my table. I’ve split the tribunals item into two parts – 10a for the formal aspect of proper constitution and jurisdiction, 10b for the psychological dimension of bias and independence. The scores are even better if you leave out the anachronisms.

Table 2: The two trials of Jesus (I: Caiaphas II: Pilate)

A. Pre-trial

1 No arbitrary arrest and detention

I: Yes II:Yes

2 Reasons for arrest

I: Not recorded II: Yes

3 Legal counsel

I: No (anachronism) II: No (anachronism)

4 Habeas corpus

I: Not applicable II Not applicable (trials precipitate)

5 No torture or abuse in detention

I: Yes II: Yes (Flogging post-conviction)

6 No incommunicado detention

I: Not applicable II: Not applicable (Trials precipitate)

B. The hearing

7 Equality before the courts

I: Yes II: No (Roman citizens had more rights than Jews)

8 Equality of arms

I: No II: No

9 Public hearing

I: Yes? II: Yes

10a Lawful and competent tribunal

I: Yes? (Jurisdiction unclear) II: Yes

10b Independent and impartial tribunal

I: No II: No (both judges biased)

11 Presumption of innocence

I: No (anachronism) II: No (anachronism)

12 Notice of charges

I: No II: No (Trials precipitate)

13 Facilities for preparing a defense

I: No (anachronism) II: No (anachronism)

14 Trial without undue delay

I: Yes II: Yes (Trials precipitate)

15 Right to defend oneself

I: Yes II: Yes

16 Right to examine witnesses

I: Yes II: Yes

17 Right to an interpreter

I: not applicable II: Yes? (Interpreter not mentioned, but fluent dialogue with Pilate)

18 Prohibition of self- incrimination

I: No II: No

19 Prohibition of retroactive criminal laws

I: Yes? (Messianic claim new before Sanhedrin) II: Yes

20 No double jeopardy

I: Yes II: Yes? (Different charges)

C. Post-trial rights

21 Right to appeal

I: No (anachronism) II: No (anachronism) (Only for Roman citizens)

22 Compensation for miscarriages

I: No (anachronism) II: No (anachronism)

Scores: Caiaphas: 13.5 / 23 Pilate: 14 / 23

Scoring: Yes, Yes?, Not applicable=1, No=0, not recorded=0.5

The GITMO trials cover two technically different procedures: the Combatant Status Review Tribunals (CSRTs) from 2004 and the Military Commissions from 2006. But for practical purposes they are clones. For expert analyses, see Human Rights Watch and Amnesty International

The tribunals were set up a long time after the arrests, and hardly any trials have taken place under the military commissions.

Table 3: Guantanamo tribunals

A. Pre-trial

1 No arbitrary arrest and detention

Partly (arrests in combat lawful, others not)

2 Reasons for arrest

No?

3 Legal counsel

Partly (military counsel assigned, civilian choice restricted, delayed)

4 Habeas corpus

No

5 No torture or abuse in detention

No

6 No incommunicado detention

No

B. The hearing

7 Equality before the courts

No (American citizens have more rights)

8 Equality of arms

No (see 3, 16).

9 Public hearing

No

10a Lawful and competent tribunal

Yes? (but set up ex post)

10b Independent and impartial tribunal

No (serving military judges, ad hoc procedure)

11 Presumption of innocence

No

12 Notice of charges

Yes

13 Facilities for preparing a defense

Partly (see 3, 16)

14 Trial without undue delay

No (trials very delayed)

15 Right to defend oneself

Yes?

16 Right to examine witnesses

No (much evidence classified, hearsay)

17 Right to an interpreter

Yes?

18 Prohibition of self- incrimination

No

19 Prohibition of retroactive criminal laws

No (substantive and procedural law created ex post)

20 No double jeopardy

No (no limitation on new detention)

C. Post-trial rights

21 Right to appeal

Partial (not to a civilian court)

22 Compensation for miscarriages

No

Score: 6 / 23

Scoring: Yes, Yes? =1, No, No?=0, Partly=0.5

On my reckoning, the GITMO tribunals are less then half as fair as those of Jesus. And those were miscarriages of justice. Trials are like jet engines: one flaw and you are in serious trouble – and a perfect score still doesn’t guarantee that nothing will go wrong from honest mistakes. The GITMO ones are trials in the sense of Vyshinsky.

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Objection from a worthy Christian person

It is in extremely bad taste, even impious, to use the Passion of Our Lord on Good Friday to make political points. You should be ashamed of yourself .

I should be ashamed of myself on Good Friday, but not for that reason. As I see it Christians are supposed to enter, as in the great music of Schütz, Bach, and Handel and the art of Grünewald , into the drama and relive it each year, empathising with all the participants. We have to see ourselves therefore as the false judges and executioners as well as the ineffectual disciples; and consider how far our ideas, actions and feelings in fact coincide with theirs. The answer is usually that we are largely on the side of the bad guys.

Objection from a more learned Christian person

It is inappropriate for a Christian to treat the Passion as an ordinary historical event. You should se it not as a tragedy but a fulfilment, the savage birth of a new covenant, an eschatological singularity: and the redemption of all humanity was both made necessary and enabled by the sins of Judas, Caiaphas, Pilate, and the mob. Theirs was the true “felix culpa” rather than that of a mythical Adam. You cannot blame them in the ordinary way.

True: but look again at the Grünewald (in the flesh it’s even more impressive — it’s a huge, in-your-face, SUV-size altarpiece; the Christ is more than life-size). On his large canvas, Grünewald strips the supporting figures down to three. The impassive figure of John the Baptist tells us to think about what is represented; the shattered faces of Mary and the other John invite us to feel in human terms. Both human and theological readings are needed. This innocent death is still a “culpa”. It only becomes “felix” if we accept the invitation to be changed by it. But if we don’t, if we join Pilate every day in the White House and the DOJ and the cellars of Guantanamo and Bagram, may the Lord have mercy on our souls.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web