Where All of the Guilty Ones Get Fair Trials
I suspect that relatively few members or staffers had time to read the long-winded written statement I submitted to the record with my September 27, 2006 congressional testimony. Starting on page Page 79, I described the many procedural and institutional reasons why American soldiers do not receive fair trials in Korean courts. I drew heavily on stories that GI Korea and USinKorea had originally linked in preparing it, along with the assistance of a good friend I asked to fact-check some of my assertions, in case they might have grown stale with time.
Marmot’s Hole guest-blogger and lawyer Brendan Carr, speaking to a reporter for the Stars and Stripes, now offers an invaluable contribution to this discussion. Brendan’s criticism of Korean society and its attitude toward the importance of truthfulness in a courtroom is blunt. At its root, the study of modern culture is a collection of generalizations about how humans in a particular society tend to behave differently from humans in other societies. Koreans tend not to react favorably to foreign criticism, and I hope the “netizens” don’t give Brendan the Gerry Bevers treatment for the crime of being direct. Interestingly, a native Korean lawyer backs him up in the report. I don’t think Brendan means to impeach the honesty of Koreans in the more general sense, and I’ve known some Koreans who were fastidiously honest (and married one), along with plenty of others who weren’t. I’ve met both kinds in the course of interviewing Korean witnesses and reading their statements. In any society, Diogenes is in for a long walk, but if he ever intends to hang up his lantern, he’d best avoid courtrooms. I’d join Brendan in saying that goes double for Korean courtrooms when an American in on trial.
I’m going to give you a long graf from that must-read article. Brendan puts his discussion into the context of a typical late-night brawl between soldiers and Koreans, the kind of thing most of us are very tired of reading about.
“And in those cases, the U.S. servicemember is at a profound disadvantage for a number of reasons, all related to culture and language,” he said. Because most servicemembers can’t speak Korean, they can have a tough time making sure police don’t get the wrong picture of what occurred.
“So being able to order two beers and ask your girlfriend if she ate dinner is not enough to explain how an altercation happened and why you’re blameless,” he said.
And lawyers say court-appointed translators often have poor English skills and spotty qualifications.
Tribalism and lying witnesses
Beyond language difficulties is the prospect that South Koreans who give testimony might feel it culturally acceptable to lie, especially if it will increase their chances of winning bigger damages, Carr said.
“This culture,” Carr said, “does not place the same value on truth or view the truth through the same prism that Americans do. There is very little social disapproval of making false official statements in order to achieve an objective for your friend or relative or for a tribemate.
“Once it breaks down to “˜those Americans’ versus “˜us Koreans,’ many, many Koreans will perceive it as their duty to make sure that the Korean is the winner of the dispute. So there’s a lot of lying when witnesses come forward,” Carr said.
“Some people,” said Seoul attorney Jin Hyo-guen, “think that it’s their duty or their job to testify in a way the GI should be punished, severely” and beyond what’s warranted by what “actually happened.
“Of course, there are some persons who think “¦ favorably and amicably” toward U.S. servicemembers, Jin said. “But sometimes not. Jin has represented numerous U.S. servicemembers in South Korean courts.
Anti-American pressure
Another potential hazard is that some U.S. military defendants are viewed as violence-prone troublemakers unwilling to admit guilt. That can work against them at sentencing, said Carr.
“Because there’s such a public bias against them and a political desire to kick the United States in the teeth by kicking a soldier “¦ “ said Carr, “we labor against this Korean domestic perception that soldiers are never punished.
But there’s also the prospect that anti-American groups might try to pressure authorities against the accused servicemember, said Jin.
About three years ago, Jin represented a soldier who, while drunk, stabbed a Korean in the neck. At first, Korean investigators concluded the assault had not involved an intent to kill, so authorities charged the soldier with battery, Jin said.
But anti-American activist groups weighed in, pressing police and prosecutors to charge the soldier with attempted murder, Jin said, and the prosecutor changed his mind.
The soldier was convicted and sentenced to two-and-a-half years in prison, Jin said. Higher courts rejected his appeals. [….]
Jin said he believes some prosecutors and judges fear they’ll be labeled “as a “˜pro-American’ or what they call “˜imperialist.'”
So much for an independent judiciary.
Compounding that problem is that some Koreans perceive that U.S. servicemembers are “more strongly protected than necessary” if they’re arrested, said Carr’s law partner, Son Doil, a lawyer who several years ago was a Gwangju District Court judge.
The U.S. military will provide the servicemember the chance to select a defense lawyer from a list of attorneys licensed to practice law in South Korea and will pay the lawyer a fixed fee.
And uniformly, my clients described those lawyers as apathetic and meek advocates. So what headline does the Stipes put on this story?
Lawyer: Americans can expect fair trial in S. Korea
Something tells me Brendan did not write this headline, and I’d be interested in knowing whether he actually believes that this is a fair summary of the situation he has just described. Based on my experience, an American soldier’s only chance of getting a fair trial in a Korean court is if he’s so dead-to-rights guilty anyway that lying witnesses, biased prosecutors, sleeping judges, and coerced statements can’t affect the outcome.
GI Korea puts all of this together with other relevant examples. All in all, Korea is not one of the better places on earth to be out on the streets as an American, particularly as a soldier, particularly at night, particularly if you’ve been drinking, and most particularly of all, if you’re behaving like a complete ass. The best advice any lawyer could give an American soldier in Korea is to stay on post at night.
But there is a broader picture, too: it’s time to get our soldiers out of South Korea. The South Koreans can defend their own country, and they’re proving my point by cutting their own military spending while they send billions in tribute to Kim Jong Il. Indirectly, we’re picking up the tab for all of this. The majority of the South Korea people either despise our soldiers or tolerate them as a necessary evil at best, and many treat them with the sort of contempt that should be a scandal. If war comes, we will find ourselves trapped in a ground war that would be incalculably bloody, in which we will be prime targets, in which large segments of the population will support our enemies, and in which we can expect terror and WMD attacks. Our presence in Korea is a tempting target for anti-American radicals, terrorists, and North Korean artillery. It is going to continue doing us grave political harm as long as young male boorishness continues to be a statistical certainty, as long as drunks can keep buying cheap drinks, and as long as Korea continues to see each individual incident through a nationalistic, anti-American lens.
Staying in Korea does not serve our national interests. The current U.S. Forces Korea structure is an anachronism. It is time to shift from a strategy of vulnerable military statis to one of flexible power projection, and of undermining Kim Jong Il’s rule at its own points of vulnerability — its palace economy and its increasingly discontented people.