[OUTLOOK]Justice invisible is justice denied

In the first year of law school, they teach an ancient and probably apocryphal case. Accused of stealing a pot, the defendant offered three alternative pleas: (1) I never had the pot; or (2) It's my pot, not the plaintiff's; or (3) It was his, but he gave it to me. The law-school lesson is that the courtroom is not for playing games; it is for finding truth. You must present a coherent case.

In the court-martial of Sergeant Fernando Nino, the defense contended that the vehicle commander did everything possible to warn the driver of the 45-ton armored vehicle that two Korean girls were in the way, but perhaps due to a faulty radio system the warning may not have been heard. Not Sergeant Nino's fault.

Then they tried the driver of the vehicle, Sergeant Mark Walker. This case had a different theory: The communications were working perfectly. If there had been a warning, the driver would have heard it and stopped the vehicle before it crushed the two girls. Absent proof of a warning, Sergeant Walker was not at fault.

Do we begin to see why some Koreans are upset at the outcome? Two girls are dead and it's nobody's fault -- on contradictory findings?

I did not attend the courts-martial; I read news accounts in this paper and others. I can construct various scenarios by which neither sergeant should be held responsible. Faulty communications. Insufficient training to deal with emergencies. For that matter, military exercises are announced in advance: Was no Korean authority responsible to keep the girls off the road?

The fact remains that two girls are dead, and it's nobody's fault. Or maybe it is the fault of persons unrevealed. A cryptic sentence at the end of a U.S. Army press handout says: "Adverse administrative actions were taken against members of Nino's chain of command."

I'll bet not 10 Koreans in 47 million noticed that sentence.

But what does it mean? U.S. Army information officers will not elaborate, citing the privacy of the individuals involved. It could be that some officer -- the convoy commander? -- got a "letter of reprimand" as the officer responsible for the safety of the exercise. A reprimand is no wrist-slap; most likely it would block the officer's further promotion and end his military career. But even if this is explained to the girls' families, it may not affect their conviction that justice has not been done.

It is a human tragedy. Law has acquitted the sergeants, and perhaps should have done so. They have families, too, and if they were carrying out their duties to the best of their competence, they should not be the scapegoats just because Koreans feel very, very strongly.

That was another law-school lesson: The objective of law is that justice be done; but sometimes the legally correct result leaves justice undone.

In recent years, there has been a "victim's-rights" movement in the United States. The glory of the U.S. legal system is that it protects the human rights of even despicable criminals. Even against the vilest human scum, the case must be proved "beyond a reasonable doubt."

In a backlash, the families of crime victims have been demanding a larger role in the judicial process. "Our child is dead -- have we not claims as important as the accused?" Whose heart would not be torn?

Some American jurisdictions have passed laws, for example, that permit bereaved families to address the jury at the close of testimony, to explain how the crime affected them. These laws generally have been stricken down in higher courts: The issue is not that the family loved its child, but whether the defendant was drunk, or reckless, or negligent. If not, family suffering should not railroad an accused into jail.

Which returns us to the events of June 13, when two 13-year-old girls died. Their names were Shim Mi-sun and Shin Hyo-sun. Testimony in one trial said they had their fingers in their ears and were bent toward the ground. Perhaps the U.S. Army vehicle behind them was too loud, or they were adjusting their headphones, or they were giggling over some private joke. Were they not negligent too, not to move out of the way of a very loud vehicle approaching from behind? Never mind. They were somebody's daughters, and now they are dead.

Korean soldiers are serving in East Timor -- formerly part of Indonesia, now half of a Pacific island that has unexpectedly become an independent country. Suppose that, while on scheduled military maneuvers, a Korean vehicle ran over two East Timorese girls. Should those Korean soldiers be tried in an East Timorese court?

A Korean military hospital unit is serving in Kyrgyzstan. I am told that the Korean government negotiated with Kirghiz-stan a Status of Forces Agree-ment nearly identical to the one the United States has in Korea. Governments understand that they must protect their soldiers, not subject them to the emotions of the host country.

So where does that leave us? Two girls are dead, two sergeants are free. "Adverse administrative action" has been taken against someone, but the rules forbid saying who or what. For justice to be done, it must be seen to be done. That has not happened, and that is why Koreans are angry.

* The writer is editor of the JoongAng Daily.

by Hal Piper