Judge Kozinski: There's Very Little Justice In Our So-Called 'Justice System'

from the overrun-by-perverts-and-their-incentives dept

Judge Alex Kozinski has long been one of the few judges willing to speak up against our nation's thoroughly corrupted justice system. It's not the normal form of corruption, where juries and judges are openly bought and sold. It's corrupted, as in bastardized. Or debased. What was set up to provide citizens with a fighting chance against accusations brought by those with vastly more power has instead become exactly the sort of system these checks and balances were meant to prevent. In many cases, prosecutions more resemble railroading than actual due process.

A few years back, Kozinski pointed out one of these contributing factors to this corruption: the deliberate withholding of exonerating evidence from defense lawyers.

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

This is the damning opening sentence of his dissent in a case where the government pursued a "thoughtcrime" prosecution. At the center of it were Google searches the government claimed supported its accusations that the accused had intended to use the ricin he'd developed in his lab as a biological weapon. Along the way, actual physical evidence was mishandled by investigators, leading to an investigation of the police lab -- an investigation that was never disclosed to the defense team. But the panel let the prosecution walk away from its misdeeds and Kozinski called them out for it.

The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here. A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence.

Due to the nature of a Brady violation, it’s highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset.

Professional discipline is rare, and violations seldom give rise to liability for money damages. Criminal liability for causing an innocent man to lose decades of his life behind bars is practically unheard of. If the violation is found to be material (a standard that will almost never be met under the panel’s construction), the prosecution gets a do-over, making it no worse off than if it had disclosed the evidence in the first place.

He has now published a new paper that attacks the weaknesses of the system, point-by-point, starting off with a harrowing opening paragraph:

Though we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Kozinski points to several false assumptions jurors (and judges) make -- unfounded beliefs that have been encouraged over the years by law enforcement and prosecutors.

The government tells us that eyewitnesses (at least, its eyewitnesses) are reliable. Any person with two eyes who can "corroborate" the prosecution's narrative is treated as somewhere between George Washington and Jesus Christ in terms of reliability and honesty. (This deference suddenly disappears when the defense introduces its eyewitnesses. This hypocrisy extends to confidential informants -- criminals whose honesty is always questioned by law enforcement unless their statements help them advance their investigations, in which case they're suddenly upstanding citizens wholly unmotivated by the desire to remain unincarcerated.)

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races… In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases… Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Other long-held assumptions are equally questionable. Every juror who has ever watched a TV crime procedural is having his or her head filled with questionable assertions about the trustworthiness of certain forms of evidence. This would be fine if it were limited to fictional representations of police work. But it isn't. Prosecutors and courts remain equally credulous of this evidence, even after multiple issues with both have proven them more fallible than they're portrayed.

Identifying fingerprints taken in controlled situations (i.e., bookings) can provide fairly decent ID matches. But those recovered in the field -- latent prints found at crime scenes -- are far less accurate. The same goes for DNA. While it can provide very close matches in controlled situations, most DNA evidence is recovered in less-than-ideal circumstances, and is far too often subject to speculative conclusions that are often guided by what investigators want to find, rather than what they've actually found. Just because a method is "scientific" doesn't mean it isn't subject to bias.

DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.

The same goes for almost every piece of forensic evidence the public and the courts have long accepted as being near-infallible.

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

Far too often, these forensic methods are treated as incorruptible science when they're actually far from it.

Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.

And so it goes. A calamity of errors. A full-blown catastrophe masquerading as an equitable system. Human memories are particularly fallible but human testimony under oath is considered sacrosanct. Judges act as though juries are decent human beings who will follow specific instructions, rather than act like ordinary human beings and act on their preconceptions and biases instead. Prosecutors will supposedly follow the rules, even though they're working from a supposed disadvantage (the presumption of innocence), rather than do whatever they can to rack up another "win."

And the "presumption of innocence" is a joke. Far too many people still believe an indictment is an indicator of guilt. Defense lawyers are actually the ones working uphill, because the presumption of innocence is the ideal, rather than the baseline. "Beyond a reasonable doubt" isn't much of a hurdle when jurors (and even some judges) view the accused as guilty before anyone even starts presenting evidence.

Human minds are terrible things and yet the justice system continues to operate on the fallacy that they're efficient machines capable of determining innocence or guilt. Kozinski points out that something as far removed from the verdict as the opening statement can influence the entire trial.

Even more troubling are doubts raised by psychological research showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later.” The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”

To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it. And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury.

Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first—the prosecution in a criminal case and the plaintiff in a civil case. If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty.

So, the system is broken. And there is no easy remedy. The problem can only be made worse, if the system continues to operate as it has been. And every "tough on crime" initiative only adds to the flaws. Take mandatory sentencing, for example. What is meant to curb future criminal activity has really only insured that the government can wrongfully imprison innocent people for longer periods of time. Every exoneration stemming from these multiple systemic flaws is treated dismissively as some sort of fluke. Even as more evidence mounts that the system is openly abused, the level of credulity granted the abusers has remained relatively steady. And if you're wrongfully imprisoned, you're pretty much screwed. The logistical and legal obstacles standing between you and a reexamination of your case are close to insurmountable.

To begin with, they are in prison and thus unable to pursue leads the police might have missed; they have to rely on someone on the outside to do it, and that’s often difficult or impossible to accomplish. A prisoner’s access even to his counsel is severely restricted once he’s incarcerated. A loyal friend or relative might do it, but friends and even relatives often abandon defendants who are convicted, no matter how much they may protest their innocence. A few prisoners may obtain the help of an innocence project, but the work is labor-intensive, resources are scarce and manpower is limited, so innocence projects engage in triage, focusing on the most promising cases. Of course, it’s often difficult to tell whether a case is promising until you look closely at it, so a promising case can easily be overlooked.

But the biggest problem is that new evidence is hard—and often impossible—to find. If it’s a physical crime, police secure the crime scene and seize anything that looks like it could be relevant. The chance of going back years later and picking up new clues is vanishingly small. The trick then is to get whatever evidence the police have, assuming they didn’t destroy it or release it once it was clear that it wouldn’t be used at trial. If the crime is non-physical, such as fraud, child pornography or computer hacking, the police seize all the relevant computers, hard drives and paper records (including any exculpatory evidence the suspect may have there) and may well discard them after the conviction becomes final…

I think it’s fair to assume—though there is no way of knowing—that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.

Kozinski doesn't just offer up problems, though. He has a long list of suggested solutions. Juries need to be handled better throughout the course of the case, rather than mostly ignored until it's time to reach a verdict. Jury instructions should be clear, concise and in print. Jurors should be allowed to take notes and discuss the trial with other jurors while the case is ongoing.

Prosecutors should be subject to open file discovery. Every police interrogation should be video recorded. Eyewitness testimony needs to face more scrutiny and to be subjected to standardized examination. The same goes for other evidence entered by the prosecution. The government should start funding "Integrity Units" -- independent bodies that examine questionable convictions, as well as questionable prosecutorial behavior.

Prosecutors should be held to new Brady (exculpatory evidence) standards to ensure all possible info makes its way to the defense. This needs to be followed up by the deployment of sanctions and meaningful punishments for violations. The first good faith effort the government can make is to strip away the secrecy surrounding accusations of prosecutorial misconduct and allow the public to see which of its public officials are abusing an already-badly abused system. Along with this, prosecutorial immunity protections need to be scaled back severely. In addition, Kozinski proposes treating prosecutorial misconduct as a civil rights violation, which would open these offices up to DOJ investigations and consent agreements, as well as give the wrongly-accused a more efficient route to redress their grievances.

Another way to ensure the justice system serves the public rather than itself is to remove the process of electing judges. Incumbent legislators have done very little to ensure they leave their office in better shape than when they first arrived. The same goes for judges, who can often turn a little public support into a lifelong career of playing to the crowd, rather than ensuring justice is done.

The system is broken. I'm not sure it can even be fixed. But some of its worse aspects can be mitigated. I do appreciate the fact that someone inside the system is willing to not only point out its extensive flaws, but also offer guidance on how it can be improved. What we really haven't seen though is someone from the prosecutorial end call out colleagues for their ritualistic abuse of the system, and I think that needs to happen before we start to see any meaningful improvements. And that's almost impossible to do in an area where you're only as good as your conviction rate.

Filed Under: alex kozinski, courts, justice, justice system, legal system, tropes

The Miraculous Works Of The Criminal Justice System

from the the-impossible-is-the-mundane dept

Thanks to its ingenuity and expeditiousness, the criminal justice system -- from the cops busting perps to judges presiding over arraignments -- is able to perform small miracles. The impossible is nothing, not when these forces come into play.

First off, a person picked up by police (for minor possession) managed to commit (inadvertent) suicide with a gun he'd somehow kept hidden during two previous searches of his person.

The official statement from police said this:

“[Victor White III] was taken into custody, handcuffed behind his back, and transported to the Iberia Parish Sheriff’s Office for processing. Once at the Sheriff’s Office, White became uncooperative and refused to exit the deputy’s patrol vehicle. As the deputy requested assistance from other deputies, White produced a handgun and fired one round striking himself in the back.”

The police questioned his father at 5:00 am the next morning, never once mentioning White was already dead. Police did not allow White's father to see his entire body at the morgue, but what could be seen (White's face) had abrasions and bruising.

This somewhat miraculous self-shooting was made even more miraculous by the autopsy report, which showed something else entirely.

The autopsy report, issued by Iberia Parish Coroner Dr. Carl M. Ditch six months after the death, revealed that the bullet did not enter the body from behind, as police had claimed. Instead, the report stated that the bullet penetrated White’s chest from the front, perforated his heart and left lung, then exited through his left armpit and injured his upper left arm.

So, apparently White, with his hands cuffed behind him, shot himself in the chest. The coroner's report also noticed a couple of other things at odds with the official explanation.

According to the report, the forensic pathologist found gunshot residue in the wound, but not the sort of stippling that a close-range shot can sometimes produce. He also found abrasions on White’s face.

If you thought this miraculous event would have prompted a full investigation, your faith is sadly misplaced. Despite nothing agreeing with the official narrative, the coroner still found the officers' description of the incident largely believable.

Dr. Carl Ditch ruled that White shot himself, and declared his death a suicide.

Ditch cited White's "body habitus" as making this highly unlikely event possible. No explanations were given as to how multiple police failed to spot a gun during two pat-downs, nor as to why the involved officers and White weren't tested for powder residue.

From one miracle to another. You'd think having a completely airtight alibi would result in charges being dismissed. And this wasn't just any airtight alibi, this was one that could be confirmed by law enforcement officers and their official records. But somehow, because the criminal justice system moves in frustrating and mysterious ways -- this alibi still wasn't good enough.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

"Two days after that, a court commissioner signed a warrant for Threatt on a raft of charges, including armed robbery and using a firearm in a violent crime, each of which carries a maximum 20-year prison sentence. Threatt was arrested over the weekend, according to court records."

So there he was, facing a crap load of jail time, when the simple fact emerged that on June 27, he was already in jail.

Someone incarcerated obviously can't commit criminal acts on the outside. Threatt should have walked away from this one. But he couldn't, because impossibility isn't enough.

A public defender who represented Threatt this week says he laid out jail records before a judge Monday showing that his client had what might have been the best possible alibi.

But prosecutors said the issue should be sorted out at trial, according to the public defenders office, and the judge declined to release Threatt (he did get $25,000 shaved off his bail).

Just being physically unable to commit a crime is no defense against a system that has been fine tuned for prosecution. What seems impossible is now possible, as long as you're willing to have your disbelief forcefully suspended by a perversion of the justice system.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

Someone who was in jail during the alleged crime will now have to return to jail (or make bail) to await a trial for a crime he couldn't possibly commit because the system at play here has decided to sacrifice rights for expeditiousness. Threatt's two options at this particular session were either (a) plead guilty or (b) wait for his turn in the courtroom. It's called a "meet and plead" and it had nothing to do with defending yourself against allegations of impossible criminal activity.

Overwhelmed attorneys are pressured by judges into forcing their clients to plead guilty on the day of arraignment to “discounted” and “one-time only” resolutions.

So you end up with people who are completely innocent who still plead guilty because they feel like they have no choice and would rather taste freedom again than wait in jail until it’s “sorted out at trial”.

Gone is the right to effective representation. If a defense attorney is present, he or she is only there to advise on the choices presented, not defend his or her client. The judge is not there to weigh evidence or even see if the charges should be dropped. The judge is there to accept pleas. Full stop. Anything else -- even something that would take 30 seconds to verify -- is ignored in favor of pushing grist through the judicial mill.

In our criminal justice system, the impossible is also the mundane. Narratives only the most extreme conspiracy theorists could love are accepted at face value. Anything that might keep the system from running smoothly -- like someone being unable to leave the building they're in, much less mug someone -- is ignored in favor of obtaining speedy guilty pleas.

So, what do you tell the public? That if you're picked up for minor marijuana possession, you might die? That if you were in jail when a crime was committed, you're still a suspect? That doesn't jibe too well with the "if you're doing nothing wrong, you've got nothing to fear" narrative that is pushed by law enforcement defenders and surveillance proponents alike.

It's enforcement first and the public's rights and safety are a distance second. Take a look at this chart (via) and see where all the money and attention goes and then ask yourself who's looking out for you. The guy who could take a ride in a cop car and end up dead. Or the guy who could already be caught in the wheels of the system only to find out that being stuck in the machinery doesn't keep the machinery from moving towards its desired conclusions.

The criminal justice system doesn't serve the public. It feeds on them.

Filed Under: criminal justice system, justice system, police, police brutality

Former Supreme Court Justice Sandra Day O'Connor Gets Into... Video Gaming?

from the didn't-see-that-coming dept

Former Supreme Court Justice Sandra Day O'Connor made a statement at a conference that I think we can all agree with:

"If someone told me when I retired from court that I'd be talking at a conference about digital gaming, I'd think they'd had one drink too many."

However, not only did she talk at a conference about digital gaming, she's working on a project to create a video game about the court system, to try to make students more informed about the judicial system and some of the difficult decisions it makes. There have been many similar "civic education" video games out there, like the UN video game to teach kids about world hunger and, my personal favorite, a video game to teach kids how to gerrymander voting districts to get political support. It's not clear how successful any of these sorts of games really are, but it's nice to see a former Supreme Court Justice taking an interest in these sorts of things. Though, some might point out that this could be seen as something of a gimmick, and students might just be better served by adding a decent civics curriculum back into school (it's apparently gone thanks to No Child Left Behind).

Filed Under: civics, justice system, sandra day o'connor, video games