At first blush, the announcement a few weeks back by the Supreme Public Prosecutor’s Office that it wants to introduce American-style plea bargaining into the legal system seemed like a constructive effort at reform. But on closer examination, it’s obvious the move is nothing more than a sad attempt to cling to power.
In making the announcement, officials were talking about human rights and the need for change in the system. Sounds good, until you remember that plea bargains as practiced in the United States and Canada are at best a necessary evil to keep an overburdened system functioning. If every criminal case had to go the distance in court, the system would break due to a dearth of resources.
The problem is that justice is often subverted. People who commit serious crimes regularly receive punishments that don’t fit because they plead guilty to a lower criminal offense. They get off easy in the name of expediency.
But as far as I know, the Korean court system does not have a huge backlog. In fact, the prosecutor’s office is not talking about that problem at all. What’s really happening is that prosecutors are feeling very insecure these days. Their long-held privileges are under attack and their very ability to obtain convictions is under pressure as they’re now being forced to use more rigorous and above-board investigative methods.
It’s no coincidence that the prosecutor’s announcement came just one month after a landmark decision by the Supreme Court that severely curtailed prosecutorial power. In a Dec. 16 ruling, the court found that interrogation statements obtained by the prosecution from a suspect would no longer receive automatic evidentiary status.
Cho Kuk, a professor of law at Seoul National University and an expert on criminal law and procedure, told me that the court was truly breaking ground with its ruling. He pointed out that it had even gone so far as to overturn several of its own previous rulings to reach the decision.
This is a big deal because interrogation statements have long been at the core of the prosecution’s power. The statements had always been admitted and almost never debated in court. In other words, any statement by an accused person made under whatever duress in the back room of the prosecutor’s office was admissible, as were statements by witnesses. Without the automatic admissibility of interrogation statements, prosecutors will be forced to rely on other methods.
Cho likened the move toward plea bargaining as a Plan B with the ability to bargain, enabling prosecutors to maintain some of their traditional leverage.
I should add that while gathering information for this column, I found it more difficult than usual to get people to go on the record. Lawyers who work within the system are justifiably nervous about speaking out. The community of lawyers is growing but remains closely knit, and everyone knows that the prosecution is at the center.
One lawyer at a prominent Korean firm advised me to use whatever information I received cautiously. What she told me is that the system is still rife with corruption, that the accused are still routinely treated as guilty, that coercive methods are still regularly used and that there are still collusive links between the prosecution and judges. The result is a 99 percent conviction rate and judges who find as a source of pride the fact that their record includes nary a not-guilty decision.
She gave me numerous examples that are all a matter of public record of people who have had their lives turned upside down by a vicious legal system. One case reported by the vernacular Chosun Weekly dealt with a police chief who lost everything after the prosecution carried out an open vendetta against him. He managed to clear his name, but not before enduring lengthy criminal proceedings in which he lost his job and reputation. He is currently suing the prosecution and two of his former subordinates who he believes were coerced to make false statements about him.
It all comes back to those interrogation statements. Although suspects apprehended by police now have a right to a lawyer, they are not often made aware of that right. In many cases, the accused only receive representation after they are charged and statements have already been obtained. Most tellingly, many defense lawyers don’t bother to make a cross-examination because it’s not worth it: the result is preordained.
There have been many changes in the legal system since 1987, when the country became democratic. Professor Cho pointed out that the number of legal brokers around the Seocho-dong law courts has diminished and that many judges have taken pains to distance themselves from the prosecution.
At the same time, he also said that the legal system in Korea is part of the social structure and that social reality is difficult to change. It’s going to take time and some smart reforms to remove the abuses from the system and institute real justice.
The reality is that the adoption of plea bargaining only clouds the water and delays the inevitable. The system of prosecutorial justice in Korea has to change.
By Mike Weisbart
Korea Times Columnist