A Postscript (Was: Re: A Clarification on Trial / Hearing and Other

[puduhepa98 at aol.com]

No: HPFGUIDX 166465

> Carol:
> Fudge announces the "disciplinary hearing" (not trial,  BTW)
inquiring into offenses against two statutes by Harry James
Potter of  number four Privet Drive, Little Whinging, Surrey,
and adds: "Interrogators:  Cornelius Oswald Fudge, Minister of
Magic; Ameila Susan Bones, Head of the  Department of Magical
Law Enforcement; Dolores Jane Umbridge, Senior  Undersecretary
to the Minister. Court Scribe, Percy Ignatius Weasley"  (OoP
Am. ed. 138-39). <SNIP>

> So I stand by my analogy that  Fudge is acting as prosecuting
attorney, with Umbridge as his assistant, and  Madam Bones is
acting as judge, with a bit of cross-examination mixed  in.


>G
  I take it from this that Fudge was the first amongst equals  on
the presiding body and the Chairman, so somewhat more like a
Tribunal  than a Court (although as mentioned the distinction is
a quite fine one), and  does not lead to any concession on terms
(my preference being presiding  body). This is confirmed to me
by the fact that Fudge reads the charge at the  beginning
(p. 128), and, at the end of the hearing announces the  not
guilty decision. "Cleared of all Charges" (p. 138).

Ms. Bones's  function appears to be that of legal expert
(reference - p. 131), not factual  judge, she is, after all,
the Head of the Department of Magical Law  Enforcement. The
entire Wizengamot, when the vote is taken is the arbiter  (now
there's a word for you) of fact. She certainly *is not * there
as an  arbiter of fact herself, except insofar as she is a member
of the Wizengamot  and has a single vote.


>Goddlefrood 
<snip>
In respect of the issue raised by  Carol on my statement of 
fact, my point in my previous was simply that we  have 
insufficient data to determine what the function of the Head 
of the  Department of Magical Law Enforcement is in respect of 
that office's  position vis a vis the Wizengamot.

I suspect (awful word, but often used)  that like a majority 
of Courts or Tribunals the Chairmanship (or President,  or 
howsoever your preference is to express it) changes. I also 
apprehend  that I point to the fact that at the time of the 
hearings seen in GoF it is  a reasonable extrapolition that 
the hearings had only recently been  reinstituted (remembering 
what happened to poor Sirius only a year or so  earlier).

<snip>
There 
are, as I am sure you know, three  branches of Government in 
the RW, the judiciary is but one. The said Rukes  relate to 
legislative matters and procedures for their conduct (a  
Parliament, in the US the Congress and Senate, being the 
legislative  branch). So I chose not to engage further as I 
was writing from a judicial  perspective, hope that satisfies. 
I am aware that the Congress and Senate in  US conduct 
quasi-judicial proceedings, before I am engaged on  that.

As I also mentioned in 166206 (or perhaps in one of the  
earlier), the trials seen in GoF appear dissimilar from 
Harry's hearing.  I leave that point there, while again 
stating that there is not enough  evidence in canon to go on 
to form an adequate conclusion (for me) and refer  to other 
comments above.

<snip>
There was no jury, it was a  Wizengamot. I say this because 
there was no one present with the Judge's  function of arbiter 
of law, IOW no one explained to the Wizengamot's members  
anything in respect of the relevant law under which the 
hearing was  conducted. Madam Bones was, however, cast in the 
role of legal adviser to  the proceedings, as I mention 
elsewhere.

The word "Decree" in canon  also suggests to me that there is 
no distinct legislature in the WW, unlike  in the RW. I say 
this from deep knowledge of decrees. Also, due to certain  
matters in canon alluded to by Carol, there is a clear 
indication that  the Wizengamot makes the WW's laws, as well 
as hearing complaints and  charges under those laws and, 
therefore, is less than independent, as a  judicial body 
should be. Hope that point is clear.

It appears that  the WW has no independent branches of 
Government, and at the end of the day,  this appears to be 
why it's legal system, insofar as we have been shown, is  
in a mess (not a typical legal word ;)). (Thinking of Sirius 
again and  some of the Draconian powers of Barty Crouch as  
exemplars).

<snip>
>
>Carol responds:
Yes, it's  a fact. And I infer from that fact that Fudge, whose role
ought to be purely  executive, is interfering in judicial matters. (It
seems that the WW already  has no separation of powers with regard to
the legislative and judicial  branches. Fudge, possibly under
Umbridge's influence, is making matters worse  in OoP.)

I keep forgetting to mention that Voldemort must have wanted  Madam
Bones dead not so much because she was a powerful witch as because  she
was fair and objective, possibly incorruptible, and held a  powerful
position. Fudge, in contrast, was easily manipulated, both by  Umbridge
(whose motives remain unknown but who does not seem to be a  Death
Eater) and by Lucius Malfoy, who definitely was/is a Death Eater.  I
remain convinced that, under Umbridge's influence, he took advantage
of  his position as Madam Bones's superior to share or take over some
of her  duties. She *ought to have been* in charge of Harry's hearing,
with no  interference from Fudge or his Assistant Undersecretary, and
she did, like  Crouch before her, ask the jury (the Wizengamot?) for
its vote.

In the  GoF Pensieve scenes, the jury (and, yes, the term is used
twice) is the  witches and wizards on the right-hand side of the room.
In Harry's hearing,  it's less clear who is voting and who isn't. But
Fudge, the Minister of  Magic, ought not to be voting--or even present
at a judicial function like a  hearing. Madam Bones, acting as
judge/chairman, asks for a show of hands, as  Barty Crouch Sr. does in
the GoF Pensieve scenes, but neither votes, as far  as I can see. (It's
exactly like any organization that operates under  Robert's Rules of
Order. The chairman does not vote.) Pathetic as the legal  system is in
the WW, they do at least seem to have an established procedure,  as
shown in the Pensieve scenes--three separate trials or  hearings--which
Fudge is doing his best to disrupt or interfere  with.

<snip>
Carol responds:
Yes, there is. I certainly did  not invent the term. It's mentioned
twice in the Pensieve scenes that I  quoted upthread. To refresh your
memory, here are the relevant quotes again  (Barty Crouch Sr. is
speaking in both instances):

"Ludo Bagman,
you  have been brought here before the *Council of Magical Law* to
answer charges.  . . ." (GoF Am. ed. 592). And again, with the unnamed
four accused of  Crucioing the Longbottoms into insanity, "You have
been brought before the  *Council of Magical Law* so that we may pass
judgment on you. . . ."  (594).

Now, exactly what this council is and how it relates to the  Wizengamot
is not clear, but apparently it's the same group as the jury  that
Crouch also mentions (and again, you've snipped the relevant  quotes).

Goddlefrood:
> There was no jury, it was a  Wizengamot.

Carol:
There certainly *is* a jury, identified as such, in  the GoF Pensieve
scenes. To quote again, Crouch says with regard to Bagman,  "It will
be put to a vote. *The jury* will please raise their hands. Those  in
favor of imprisonment--" (593). In the case of the Lestranges and
Barty  Jr., Crouch says, "I now ask *the jury* to raise their hands if
they believe  as I do that these crimes deserve a life sentence in
Azkaban" (595). The jury  is specifically identified as "the witches
and wizards along the right-hand  side of the dungeon" (595).

In Harry's case, the jury is harder to  identify, but it's clearly the
group of people whom Madam Bones asks to vote  "in favor of clearing
the witness of all charges" or "in favor of conviction"  (OoP Am. ed.
130). As in the scenes with Crouch, the vote is by a show of  hands (130).
 
Nikkalmati
 
I think we have to look to what model JKR may have been using in her court  
proceedings to enlighten us as to what is going on here.  We are safe, I  
think, to assume that the United States legal system(s) (there are actually 51  
different systems, one for each state and the federal system) is not her  model.  
It is instructive, however, to recall that the U.S. House and  Senate can act 
as judicial bodies in cases of impeachment.  
 
It does appear that the Wizengamot at times acts as a legislative body and  
the Ministry of Magic as the executive.  We have not seen an independent  
judiciary.  
 
The proceedings we see in GOF are by and large sentencing hearings.   These 
trials were public spectacles and there do seem to have been many visitors  
there, as well as voting members.  There is no evidence taken and no  verdict.  
Karkaroff may have already been sentenced and was appearing again  to request 
resentencing or he may have been convicted and was pleading for  leniency in 
sentencing.  It appears his cooperating testimony may have  helped him as he had 
been released (on probation?) long before GOF.  At any  rate he had time to 
become headmaster at Durmstrang.  The Lestranges etc.  were there to hear the 
sentence  proclaimed.  The vote in favor of the  recommended life sentence was 
unanimous.  Bagman had either pled "no  contest" or been found guilty, as no 
evidence again was taken.   He did plead mitigating circumstances and the 
recommended sentence (which we  never hear) was voted down.
 
Harry clearly was being "railroaded"  He was in serious danger of  being 
found guilty "in absentia" because he was not made aware of the time and  place of 
the hearing.  It seems that he would not have been given a second  chance 
(not much due process is due in the WW).  Note that Mr. Weasley was  not allowed 
to attend even as an observer at a trial of a minor.   Harry has no 
representation; notice DD refers to himself as a witness, not an  advocate. 
 
The pattern I perceive here is of the old Conciliar Courts,  particularly the 
Council in the Star Chamber which handled the  criminal  jurisdiction of the 
Council in the 15th and 17th centuries (the Council in the  Star Chamber was 
abolished in 1641). The Council exercised the King's  extraordinary or 
residuary jurisdiction and did not apply common law, but relied  on the civil law 
(derived from Roman law).   "Apart from political  offences, such as sedition, the 
Star Chamber took a particular interest in  libel, forgery, perjury, riot , 
conspiracies and attempts.  Prosecutions  were brought by the Attorney-General, 
and prisoners were tried summarily by  affidavit and interrogation."   Baker, 
An Introduction to English  Legal History, (Buttterworths 1971).  Sound 
familiar?   Harry is interrogated by the presiding officers and,  presumably, the 
Wizengamot is relying on previously filed affidavits  and  the charges brought 
by the prosecutor.  If Madam Bones is acting as  the prosecutor, she would ask 
questions but she would presumably not vote, but  the rest of the Wizengamot 
could and would vote in its capacity as council to  the executive.  Fudge 
acted as Chairman.  Although there were  three interrogators, I suspect Fudge 
could allow others to ask questions, if  they wanted.   
 
Nikkalmati





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