Serving Justice

TWO years ago, Mark Baltes, a 28-year-old electrician, was killed by a hit-and-run driver. A possible suspect, unknown to the police, hired attorney Barry Krischer to represent him. But after agreeing to plea bargain with prosecutors, Krischer was himself brought to trial by Baltes parents--as part of a $6 million damage suit--in an attempt to discover his client's name.

Recently, Judge Timothy Poulton of the Palm Beach Circuit Court ruled that under Florida statutes protecting lawyer-client confidentiality, Krischer did not have to divulge the name. The family plans to appeal.

His refusal to name the defendant is a novel idea, and one that is generating intense interest among lawyers. Our legal system is built on the assumption that justice should be impartially meted out and, thus, blind. But to insist that a case could be discussed and tried without the prosecutors knowing the identity the defendant is unfair. How are they supposed to fight a shadow?

Others may argue that the person's identity shouldn't matter, because everyone is equal before the law and entitled to equal protection. But even in a plea bargaining situation, knowledge of the defendant's background is essential to the realization of justice. Even in cases less serious than manslaughter, such as simple robbery, identity is crucial. While a person's innocence or guilt should be decided without reference to personal history, the punishment should take into account various factors in the person's past, such as whether this was the first or tenth offense or, in the case of manslaughter, whether or not the person has had a history of violence.

What is at issue here is the question of punishment, not of innocence or guilt. The question of guilt should be determined by using the facts and circumstances of the case, and nothing else. But the whole idea behind punishment is promoting the public interest by deterring individual violations of the social contract, which is enforced by the laws.

THE defendant has a constitutional right to face his accuser. There should be another constitutional right which allows the accuser to face the defendant. The unnamed defendant is getting off scott-free in the Baltes case. While the right to face one's accusers was created to guard against haphazard or trumped-up charges, the right of the accuser to face the defendant, which would serve in the meting out of justice, is nowhere to be found.

Being exposed to the public eye, and being defended in front of its scrutiny, is what justice is all about. If found guilty, then the disapprobation of society is part and parcel of the punishment. If found innocent, then one can be vindicated in a public forum. One may argue that loss of reputation is irreplaceable. But even so, for some notoriety has proved to be the ticket to success anyway. One only has to notice Jean Harris' literary success after killing the "Scarsdale Diet Doctor," or the fame of Claus von Bulow for proof that the public tends to forget quickly, or else reward financially those who have erred.

There is no way that justice can be well served in the Baltes' case without knowledge of the assailant. Determining the punishment of the hit-and-run driver must reflect the driver's previous record, especially if he or she had ever been stopped for driving while intoxicated or under the influence of alcohol or other drugs. Justice, while it should be blind, should not be served blindly.