Bad Apple Narratives

In the wake of multiple killings of unarmed black men by police, our public discourse has moved from Denial to what I call the “Bad Apple” phase.

If we’re going to find real and lasting solutions, we’re going to have to move the conversation forward into the next phase, in which we can have honest conversations about the patterns and systemic forces at work.

What I’m suggesting here is the tiniest step we can take in that direction, but I think it’s necessary one.  And it’s something we can all do as we consume news and have discussions, which is to pay attention to the narratives in which we and others operate.

Can This Death Penalty Be Saved? – Death Qualification

In capital cases, there is a rule that people who can’t impose the death penalty can’t sit on the jury.   This rule was established when opposition to the death penalty was an outlier position, so disqualifying opponents seemed like no big deal.

For the last couple of decades, however, opposition to the death penalty has been steadily rising.  More and more people are disqualified.

Do you see where this is heading?

Here’s a 2-minute video:


Jury Selection in Chapel Hill Muslim Killings Will Be Interesting

In the last couple of weeks, I’ve had no time to comment on the interesting things in the news.  So, catching up a bit here.

Prosecutors will seek the death penalty against the man accused of Chapel Hill, NC shootings of three Muslim students.

This means the State will be looking for jurors who are sympathetic to Muslims but are also pro-death penalty.

Does anyone else think that will be an interesting group?

All Those Appeals Don’t Prove He’s Guilty

Death penalty appeals are enormously expensive and take years if not decades.  They frustrate the victim’s family, witnesses, law enforcement, and prosecutors. And for what? They don’t ensure that we got it right.

An inmate usually cannot appeal on the basis that he is innocent.  Appeals are based on errors.  One might think that convicting the innocent is, by definition, error. One would be wrong.

In a jury trial, the jury decides which witnesses are telling the truth and who did what.  They do this in secret deliberations.  If their conclusion is wrong, that can’t be fixed unless there is also a legal error.  Legal errors include a judge ruling contrary to law, a prosecutor hiding evidence, or a defense attorney failing to provide minimal representation.

Even if there is such an error, the inmate usually must also show that, without it, the jury would likely have reached a different verdict, an argument that is difficult to win, since no one knows how they reached the first one.  In many cases, errors exist but don’t legally matter.

We have the idea that these appeal courts go through the case again, making sure the jury made the right decision. Not so.

Fighting for Strategic Advantage

Last week a federal judge resigned in frustration from a presidential commission on forensic science.  That commission is charged with recommending improvements in the criminal justice system’s use of forensic evidence.

I’m not going to go deep into why this commission’s work is so important.  Just this: DNA exonerations have shown us not only that the criminal justice system fails, but also some of how it fails.  One of the badly broken bits is forensics.

To fix this, we may need better rules of evidence, but we will surely need better adversarial testing, which requires good disclosure of what and who and how.  Put simply, not knowing in advance makes it very difficult to prepare to counter the evidence, especially when that evidence requires or purports to require some scientific understanding.  And anyone saying, “It’s a match!” can sway a jury, regardless of the validity of the claim.

“Discovery” is the legal process by which evidence is disclosed before trial begins.  For some reason, the discovery rules require much more pre-trial disclosure in civil law (where corporations and other businesses are often defendants) than in criminal cases.  If the rules allow withholding, then withholding we shall have, and the results will be less reliable.

The details are in Judge Rakoff’s letter, but the bottom line here is that the Deputy Attorney General of the US DOJ decided that examining the discovery rules was off-limits for the commission.

Judge Rakoff then publicly resigned, stating his opinion that the unilateral decision was a mistake reflecting “a determination by the Department of Justice to place strategic advantage over a search for the truth.”  This is the heart of the issue.

I’m often frustrated by what I see as typical prosecutorial bullying, and it’s easy to jump to that lens.  The more important lens here, however, is that of power over the process.  We must learn to differentiate the times when the government fights to win a case, which is reasonable in our system, from the times it fights for advantage in the process, which is an outrage. Our system is, by design, an adversarial one, and in such a system, the parties are necessarily going to fight to win, rather than to seek the truth.  We should not expect otherwise.

No defense lawyer worth her salt will (or should) simply go sit at the prosecution table if she believes her client to be guilty.  Because it is her role in the system, she will fight to force the State to prove every bit of its case within the rules.  She may well advise her client (guilty or not) to accept a plea agreement.  If there is a “technicality”in her client’s favor (e.g., the police conducted an illegal search), she will fight to keep evidence out.  And if the jury is not convinced beyond a reasonable doubt, yes, a guilty person may go free.

That is a danger, but there is a worse one: that an innocent person may be convicted.  This danger is real, as the parade of recent exonerations reminds us.  [And yes, that outcome is objectively worse, because it’s a two-fer: every time it happens, a guilty person also goes free.]

Personally, I think it’s a rare prosecutor who intentionally convicts the innocent, but it’s not at all rare for a police officer or a prosecutor to be prematurely and stubbornly wrong about who is guilty.  This overconfidence incentivizes walking as closely as possible to (and occasionally stepping over, especially if there are no consequences) every line.  Regardless of the State’s high calling to seek justice rather than success, an individual prosecutor in an individual case—having decided to prosecute—will understandably fight like the devil to win.

The only thing that keeps this from being a free-for-all in which the more powerful side (the government) always wins is the process, the rules which protect the right to a fair trial—the defendant’s right: the defendant is the only party with constitutional rights.  The founders knew which way the system would go if not carefully constrained.  The rules are there to restrain the government.

The jury and judge are really the only truth-seekers, and the process is the only thing that protects their ability to find it.  Everything depends on the process being scrupulously fair to the defendant.

So we must pay careful attention when the government attempts to protect or create a strategic advantage.  We must notice when the government tries to use its considerable power to protect its considerable power.  There’s a difference between fighting to win and fighting the ones who try to level the field.

The day after Judge Rakoff’s widely-circulated resignation letter, the DOJ relented, blaming the decision on a prior office-holder.  It is not clear what effect the publicity had, but the DOJ will no longer refuse to consider the commission’s recommendations on their merits.

This doesn’t mean they will be accepted.  We would do well to pay attention when the time comes.

Non-Indictment of Officer Who Killed Eric Garner

There’s a video of a law enforcement officer (“LEO”) choking Eric Garner to death.  Yesterday, a grand jury failed to indict.  This comes on the heels of a non-indictment in the shooting death of Ferguson teenager Mike Brown.  The system functioned the way it always does in these cases, and in fact the only way it could function.  I’d like to focus on why.

Let’s make sure we understand a few things.

  • Indictment

The grand jury/ indictment process is designed as a small check on the massive power of every prosecutor.  Grand juries are supposed to indict if the State has “probable cause” even if the grand jury is far from being convinced of guilt.    They are part of the court system, but there is usually no judge present, and the DA runs them.  GJs are one-sided as opposed to adversarial, and the defendant is rarely allowed even to testify.  GJs almost never see exculpatory evidence, because guilt/innocence is not their question.  The whole question is whether the State has enough evidence of a crime.  Normally, grand juries keep prosecutors from bringing utterly frivolous, made-up cases.

Every day, grand juries indict people who later turn out to be innocent.  Every day.  “A prosecutor can indict a ham sandwich,” the saying goes, because the bar is so low.  A prosecutor can get an indictment virtually every time.  (Grand juries failed to indict in eleven of the 162,000 cases brought by the federal government in 2010.)  It’s just an indictment.  It’s just the State saying you’re accused of a crime and the grand jury saying, “Okay, that’s not complete BS.”  Easy-peasy.  Rubber stamp.  If it turns out that the defendant had a justification, such as self-defense, he can take that to a trial jury; it has no place in the GJ.

  • Relationship between prosecutors and law enforcement officers

I’m white.  As is true for many middle-class white people, law enforcement officers (I’m using the shorthand “LEO” for Law Enforcement Officer here) have usually treated me appropriately, and I was usually a victim, witness, or speeder.  Until I got into law, I’d had very little contact with the criminal justice system, personally or in my circle of family and friends.  I assumed the system worked pretty well, even if it sometimes made mistakes.

I thought LEOs investigated crimes and arrested bad guys.  Turns out that’s not exactly it.  Even assuming the best intentions, what happens is that LEOs discover a crime, begin to investigate, decide who the bad guy is and then stop investigating.  From then on, what they do is to build the State’s case against the suspect.  Investigating is when you gather all information, regardless of whether it fits with your story.  Building a case means you only gather what helps your side.  I believe that most LEOs believe they’ve got the right guy, but exonerations tell us that they regularly get that wrong.

I used to think LEOs were neutral. The first time I observed a criminal trial, I was shocked to see the police sitting at the prosecutor’s table.  Now I know that LEOs are an arm of the prosecution, and that this is not hyperbole:  they’re on the same team and it’s them against you, if you’re a suspect.

  • Why they’re never indicted

What happens in these LEO indictment situations is that all of the relationships and incentives that are supposed to keep the adversarial process working get skewed, with predictable results.  The homicide victim’s family is suddenly the adversary of the prosecution team — prosecutors usually work very closely with victims’ families, who testify for the State.  Here, instead, the accused is a member of the prosecutor and LEOs team, and is only “formally” an adversary.  The investigators aren’t motivated to build the case if they think the LEO’s actions were justified.  The chance of indictment is almost 0% in LEO cases rather than almost 100% in all the other cases.  The prosecutor is motivated to lose the case, and to put on exculpatory evidence including defendant testimony.  All of this means that the system works more or less backwards, with incentives for the wrong outcomes.  There are serious consequences for the status quo and players if there is an indictment.

The grand jury process is supposed to be a check on prosecutors but in LEO cases, because everything works backwards, they can use it instead to short-circuit the larger process, protecting the accused LEO from a real trial and true public scrutiny.  No indictment means Boom! the criminal case is over.

The bottom line is that we don’t have indictments in these cases because the incentives are all wrong.  The ones responsible for investigating and prosecuting them are motivated to see the whole thing go away, and they have the power to make that happen.  They have that power and they use it.  No surprise — that’s what people do with power when they have it.

  • It’s the system

We can criticize individual prosecutors and investigators, but the real problem is the system.  What’s wrong is that we are asking prosecutors and LEOs to investigate and prosecute their own, and it’s unreasonable on our part to expect an outcome different from the one we’re getting.

They’ll continue to abuse that power until we take it away.  It’s time to take it away.

I think the way to do this is to give it to some kind of public board under the court system.  Citizen review boards have been proposed and even established in some places, and I don’t know much about them, except that they must overcome significant LEO resistance.  That’s the best idea I have, but maybe there are better ones.

All I know is that something has to change.  What we have doesn’t work, and can’t.  It’s been not-working for a long time, but maybe right now we in the mainstream are paying enough attention to see it.  Maybe we’re outraged enough to demand that when LEOs kill one of the people they’re supposed to protect and serve, that there be a real process for determining whether it was justified.

The one good thing I can see in all this is that because the indictment process functioned exactly the way it always does in “officer-involved” killings, the rest of us can now see what that looks like.  Had there been indictments and had these cases gone on to trial, momentum for change would have been lost, the “let the system work” voices would have grown, and in the end, it’s likely that there would have been no convictions.  Maybe this way, we can bring some integrity to the process. I’m sure that will be cold comfort to the families of Michael Brown, Eric Garner, and all the rest, but maybe we can prevent the next ones.

No, he’s not going to jail for convicting an innocent man.

Big news that for the first time ever, a prosecutor will serve jail time (only 10 days, but still) for his role in convicting an innocent man.

I’m celebrating, of course, but I’m concerned that the headlines are wrong in an important way.  So many headlines are like this one, saying that Ken Anderson will go to jail “for wrongfully convicting” Michael Morton, an innocent man who spent 25 years in a Texas prison.

Morton’s loss is impossible to wrap my head around, and I hope it’s the focus of lots of attention, because it reminds us how important all this is.

But we need to keep in our sights that Ken Anderson is not going to jail because of wrongful conviction.  Our system is human-based, and it can make mistakes.  Wrongful convictions can happen honestly, especially in close-call situations.  But a mistake is not what happened here, and not what Anderson is to be punished for.

Anderson is NOT going to jail for convicting an innocent man. Any prosecutor acting in good faith could convict an innocent person.  Anderson is going to jail because he broke the law, behaved in an egregiously unethical manner, and abused the vast power entrusted to every prosecutor.

He’s going to jail for intentionally failing to disclose evidence that Mr. Morton did not kill his wife.

Then, he continued to fail to disclose it for the next 25 years.  After the trial, he woke up every single day and didn’t disclose it.  He was rewarded and became a judge.

Morton, knowing the truth, woke up every day in a prison. So, it’s easy to focus on Morton’s situation.  His wife was murdered, and that would be enough for anyone, but then he was convicted of that murder.  Unimaginable.

And it’s almost as easy to focus on how illegal and unethical Anderson’s actions were.  And they were.

But we need to turn our attention, at least briefly, not to Morton, and not even to Anderson, but to the fact that we have a system that allows and even rewards prosecutors who do this. Most of the “villains” in (true-life) exoneration stories have gone on to better career positions, such as police chief or judge.

Scrupulous prosecutors — the ones who don’t withhold evidence, who offer reasonable plea deals, who charge fairly, who keep their minds open to the possibility that they are capable of human error — they don’t get as many wins, and they don’t get the big cases because the way to get big cases is to win the smaller ones.

I don’t know what the fix is, but it would be a start if we — as a society — could acknowledge that the game is rigged.

Maybe there is no good alternative to vast prosecutorial discretion, but I wish we could find ways to reward the men and women who do the job with honor, dignity, and fairness.