It’s a Long Road to Better

Sunday, May 27th, 2012

This pretty incredible two-part post from the appellatesquawk blog demonstrates how even good policies like videotaping interrogations can be undermined by bad expert witnesses and indifferent judges.

In 2008, the Troy Police Department videotaped the whole interrogation of Adrian Thomas.  The tape shows Adrian with cops in his face for 9 hours, not including a 15-hour intermission in a secure mental health facility where they took him because he was so depressed.

And no wonder.  Adrian and his wife had awakened that morning to find their 4-month old son barely breathing.  They immediately called 911 and the baby was rushed to the hospital. Although he showed no signs of abuse or neglect,  Child Protective Services swooped down on the Thomas household a few hours later and hauled away their six other children. Adrian was invited to the police station for questioning. He ended up charged with murder.

The post then goes into the details of Adrian Thomas’s interrogation, including some intense psychological manipulation of a grieving father. It’s too long to excerpt here, but it’s well worth reading. This part is key:

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

Yet somehow, the police were able to get Adrian Thomas to admit first that he may have accidentally bumped the child, then to admit that he must have blacked out memories of something more intentional, then, finally, to demonstrate with a binder how he violently threw the child to the ground. The confession is all they had. The confession and all the psychological manipulation that went into it was videotaped. But Thomas was still convicted. Here’s how:

The judge saw the whole videotape and thought the interrogation was A-ok. He wouln’t let the defense call Dr. Richard Ofshe to testify about police interrogation techniques and false confessions. False confession research is all anecdotal,  he sneered.  Besides, the jury could see the videotape for itself.

The jury thought it was rather bad of the police to lie, but the sight of Adrian throwing a binder to the floor was enough to make them ignore the medical evidence.

In the second post, appellatesquawk discusses the expert witness the judge did allow to testify: Utah law professor, former judge, and former prosecutor Paul Cassell. Cassell is at the forefront of the “victim’s rights” movement, an occasional contributor at the Volokh Conspiracy, and one of the loudest voices on the law-and-order right. Here’s what Cassell said at Adrian Thomas’ trial:

Unencumbered by training in the behavioral sciences, Cassell  asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.

The Einstein of Utah didn’t stop with a single experiment.  He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

This is reminiscent of Justice Antonin Scalia’s back-of-the-envelope calculations in Kansas v. Marsh about the frequency of wrongful convictions. And by reminiscent I mean, “also utter bullshit.” Which is appropriate, I guess, given that Cassell once clerked for Scalia.

And yet Thomas’ conviction was still recently upheld by a New York appeals court.

There was some good discussion on the MSNBC show Up with Chris Hayes this morning on the innocence movement. Innocence Project co-founder Barry Scheck was talking about the impressive legislative and policy victories the organization is collecting on issues such as improving how lineups are conducted for eyewitnesses, and recording policing interrogations. The Nation’s Liliana Segura asked Scheck a good question, which I don’t think he really answered. These policy changes are important and shouldn’t be understated, but Segura asked how we change the more fundamental problem, which is that the law enforcement side of the criminal justice system is and has long been strongly incentivized to convict and imprison. And it is prosecutors, not defense attorneys, who inevitably go on to become judges—and who then too often bring that mentality to the bench.

I don’t really blame Scheck for avoiding the question, because it’s a really difficult question to answer. A thorough answer would also involve some harsh words for the bar associations, prosecutors, and the policymakers Scheck is now working with to implement reforms. This isn’t a criticism of Scheck. It’s just realpolitik.

But the answer to that question gets to the heart of the single biggest barrier to meaningful criminal justice reform. The Thomas case illustrates it as well as any. So long as people like Paul Cassell are willing to spout nonsense on the witness stand, and so long as there are judges who will let him (and who will prevent people who have some actual expertise from testifying), even good policies like mandatory videotaping of police interrogations can fall short, even when a coerced, videotaped confession is the meat of a murder charge, even when it isn’t supported by any medical evidence.

So what is the answer to Segura’s question? I don’t think there is one that is satisfactory—or at least one that’s as simple as a new law or a new policy. To change the incentive to convict and imprison, you have to effect a sea change in how the public perceives the roles of law enforcement, especially prosecutors.

There are of course plenty of prosecutors in America who everyday choose not to pursue charges against someone because there isn’t enough evidence, or even when there is enough evidence, because a criminal charge wouldn’t be in the interests of justice. But this is key: Even these conscientious prosecutors don’t tend to publicize those decisions. They don’t put out press releases boasting about their sense of fairness in these cases the way put out releases boasting about their toughness when they’ve charged someone with felonies. That’s because they know that the public doesn’t attach much value to these decisions. They don’t respect a prosecutor who puts a premium on fairness and justice the way they value one who puts a premium on putting the bad guys away. These values aren’t mutually exclusive, of course. But they’re commonly perceived to be.

Look at a guy like Dallas DA Craig Watkins. For several years now Watkins has been bathed in positive press for his role in seeking out and freeing the wrongly convicted. He has been profiled, interviewed, and praised all over the country for his efforts. Elected officials around the country yearn for the kind of press he’s received, and most would ride it to an easy reelection. Yet when Watkins was up for reelection in 2010, he just barely squeezed out another term in office. This is a county with a history of reelecting law-and-order DAs—the DAs whose wrongful convictions Watkins is undoing—by wide margins.

Part of the answer to changing the incentive structure is of course to pressure bar associations to sanction prosecutorial misconduct, particularly willful misconduct. Part of it is waging public campaigns to oust from office prosecutors who make egregious errors. Part of it is to push for serious penalties, even criminal charges for prosecutors who engage in willful misconduct. Part of it is dialing back absolute immunity. As a Reason commenter once put it, convicting an innocent person of a serious crime ought to be akin to a physician amputating the wrong limb. It could well be an honest error, but at the very least, it’s a mistake with an order of magnitude that ought to have you looking for another line of work. That a guy like Forrest Allgood is still coasting to reelection despite two exonerations and five overturned murder convictions (that I know of) shows just how far we are from the ideal.

But public shaming, sanctions, and fighting the reelection of bad prosecutors is just the stick. The carrot is even tougher. We need to start praising prosecutors who make the tough decision not to press charges, particularly in high-profile cases. Actually, it’s even more difficult than that. The prevailing sentiment in this country is that a prosecutor’s job is to bring the most serious charge they possibly can, to stack charges so they have maximum leverage in plea bargaining, and to always charge when they have even the least bit of evidence—and let a jury sort it out. If you’ve read this site for a number of years, you can probably recall a number of cases where a prosecutor publicly said that his or her job was to win a conviction on the most serious charge possible. That, of course, is not their job at all. The George Zimmerman indictment is only the most recent high-profile example of this mentality. But it was disappointing to see how many otherwise smart, reform-minded people were perfectly find with that indictment, which most criminal attorneys I’ve read and spoken to found aggressive and unprofessional nearly to the point of malpractice.

The good prosecutors, the conscientious ones, obviously make the correct calls because it’s the right thing to do. But incentives do matter. I’ve sometimes wondered whether it’s smart to publicly praise prosecutors who make good calls on tough cases, because I wonder if drawing attention to them may actually hurt them. We need to get to the point where a prosecutor is just as likely to put our a news release or call a press conference to announce he’s not pressing charges as he is to seek attention when he is.

I don’t know exactly how we get there. I do think public opinion is, very slowly, moving in the right direction, though. To speed it up, maybe bar associations or a group like the Innocence Project could start giving out awards to courageous prosecutors who show (appropriate) restraint and caution when the public is baying for blood. Maybe such public honors would help generate discussion of these issues.

Somehow, the public needs to begin to grasp that a well-honed sense of fairness and propriety isn’t the same thing as appeasement. And that it’s just as important an attribute as aptitude at winning convictions.

(Via Scott Greenfield, who has more commentary.)

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50 Responses to “It’s a Long Road to Better”

  1. #1 |  John P. | 

    Its a fucked up system.

    Its fucked up because the same judges who saw stuff like this isn’t happening, or when it does happen is so rare no one needs to be concerned about it.

    Are the same judges that all it to happen.

  2. #2 |  John P. | 

    saw=say

  3. #3 |  John P. | 

    good grief…

    saw=say

    all=allow

  4. #4 |  Mairead | 

    Segura asked how we change the more fundamental problem, which is that the law enforcement side of the criminal justice system is strongly incentivized to convict and imprison. And it is prosecutors, not defense attorneys, who inevitably go on to become judges, and who then too often bring that mentality to the bench.

    Make DA a terminal position.

    Wanna be a DA? Then you’ll never be a judge: implicit conflict of interest.

    You can be an ADA and go on to be a judge on a bench where the DA is not involved (e.g. torts), but if you take office as a DA you lose your right to appointment/election to any bench.

  5. #5 |  perlhaqr | 

    Remember kids, if you’re ever arrested, the only words out of your mouth should be “I want my lawyer.”

  6. #6 |  Burgers Allday | 

    Wanna be a DA? Then you’ll never be a judge: implicit conflict of interest.

    This.

  7. #7 |  ChrisD | 

    I’m with #5 in that I think the answer is to tell people to invoke their rights and refuse to talk to the police. This requires no changes to the system and is within everyone’s grasp right now. I have already convinced my wife never to talk to the police and when my daughter is old enough to understand she will get the same lecture.

  8. #8 |  Ryan P | 

    RE: Craig Watkins.

    While I am sure there are those who don’t support Watkins’ efforts to free the wrongly convicted just as there are some who would never vote for Watkins because he’s black, and though the tide is continuing to change, there’s still a large segment of the county that would never vote for any Democrat, there are some of us who have supported Watkins as Dallas D.A. who were extremely baffled and saddened by his actions regarding the County Constables who were widely accused of violating numerous laws.

    Watkins appeared to sit on the case, seemingly refusing to go after the crooked Constables. The County launched its own investigation only to have Watkins come out and chastise them for trying to get crooked elected law enforcement officials to heel, and when the Attorney General offered help in the matter, Watkins twice refused them (even though he had turned to the AG to investigate previous cases involving wrongdoing by a Constable).

    It’s very laudable that Watkins has dedicated himself to investigating and overturning wrongful convictions while still largely maintaining a commitment to “go after the bad guys” with the appropriate vigor, but if he’s, for whatever reason, unwilling to go after official corruption in the county (even going so far as to seemingly protect those in power by staving off investigations by other agencies or officials), some voters are going to look unfavorably on that and vote for someone else or not vote at all (even though Watkins did eventually secure indictments against the constables and some deputies, though on lesser charges than the county’s investigation showed they had allegedly committed).

  9. #9 |  AlgerHiss | 

    “…The tape shows Adrian with cops in his face for 9 hours…”

    Until it’s taught to kids that you have every right to use phrases like “Am I being detained?” and “Am I free to leave” and “No, you may NOT search my car, or house or me”, this nonsense will never end.

  10. #10 |  Pi Guy | 

    Justice, my ass

  11. #11 |  Yizmo Gizmo | 

    THere was a Brazilian man (Roberto Rocha) in the US interrogated for a murder several years ago. After many hours of brutal interrogation, he finally gave in. Okay it was me, he said. They gave him a pat on the back. They gave him water. They gave him food. They had their man. One little problem…he was in Brazil when it happened. Then they all wondered “How did this happen?
    Why did he confess?
    Stick a man in a cage, don’t feed him, slap him around, deprive him of sleep, yell at him, scare him, trauamatize him, and he’ll be confessing the Lindbergh baby kidnapping after a while.

  12. #12 |  (B)oscoH, Yogurt Eater | 

    It would help if there weren’t whole cable TV networks dedicated to showing police questioning suspects for hours on end without lawyers present. That alone should be criminal. There are enough lawyers in the world, that they could spend spend a year interning, just being present (or telepresent) for questioning of suspects.

  13. #13 |  B | 

    I blame Nancy Grace.

  14. #14 |  Leon Wolfeson | 

    Or handing prosecuting over to a professional civil service, who have a duty and rules to follow, perhaps? While there are a few cases in the UK which are politically motivated, they’re notable as exceptions.

    perlhaqr – Arrested? If the police want /anything/ to do with you.

  15. #15 |  Bill Poser | 

    There really needs to be less emphasis on confessions. Their faults have been known for over 2,000 years. In Jewish criminal law, an uncorroborated confession is insufficient grounds for conviction.

  16. #16 |  Josh | 

    In sports, the best officials never draw attention to themselves, and people rarely know their names. I feel like prosecutors need to be the same way. They are just there doing their jobs, keeping the light off themselves by not pulling the crap which Radley and company so readily point out. A prosecutor who never overcharges, doesn’t withhold evidence, doesn’t use sketchy expert witnesses, and only proceeds when he has sufficient evidence for a strong conviction will never make the press.

  17. #17 |  Abe Pafford | 

    Radley – Fantastic post.

    My modest proposal for the single policy change that would go the longest way to genuine systemic reform is this: take a lesson from the U.S. military. Every jurisdiction should adopt a system where there is both a DA’s office and a publicly funded public defender’s office. Recruitment and overhead for these offices should be consolidated into a single unified administrative function. Attorneys hired into this system should be randomly assigned to one side or the other (with the randomness adjusted for numerical disparities owing to the larger number of prosecutors compared with public defenders). Once in the system, entry-level attorneys should have no more than three or four years on one side before rotating to the other side. Leadership positions in either the prosecution or defense component should only be available to those who have done at least one full rotation through each component, and promotion and salary decisions should be driven by performance assessments that include combined records for the service in both rotations. If you excel as a prosecutor and suck as a defense attorney, no promotion for you.

    I welcome comments or thoughts, as I think this type of proposal is not as out of reach as it may seem (largely because the military provides a useful template). I have wanted to raise this in a public forum for a while, and this post seems like a good fit.

  18. #18 |  The Late Andy Rooney | 

    #15

    Good point. I don’t see why confessions are admissable at all. If there’s no corroborating evidence, the confession is worthless as far as I’m concerned. And if there is corroborating evidence, that alone should be enough for a conviction.

    But in this case, it seems that every piece of evidence pointed to the defendant’s innocence. The confession existed in a sort of parallel universe, one in which Thomas had been lied to and told there was head trauma.

    But in reality (where most of us still live), the medical examiner testified that the baby died of natural causes. Hence, no crime was comitted. Yet this sort of shit is allowed to go on in an American court of law. Jurors deserve their share of the blame, too. Was there not one thinking person on that panel? One person who actually listened to the medical examiner’s testimony that the baby had died of natural causes? Enough, at least, for a hung jury? Are jurors asked to check their brains at the door when they enter the courtroom?

  19. #19 |  Delta | 

    #17: “Jurors deserve their share of the blame, too. Was there not one thinking person on that panel? One person who actually listened to the medical examiner’s testimony that the baby had died of natural causes? Enough, at least, for a hung jury? Are jurors asked to check their brains at the door when they enter the courtroom?”

    Jurors are asked questions in voir dire, and those evidencing any brain matter (any knowledge of the legal system or constitution whatsoever, ability to question or hold an opinion counter to a group for any time, any inclination to avoid boot-licking and cowering before authority) are immediately ejected from the jury pool. The system scrupulously filters them out.

  20. #20 |  SamK | 

    Suspect you saw this one as it was upvoted a bit, but:

    http://www.reddit.com/r/funny/comments/u76z2/jury_duty_is_the_life/c4sxes6

    (also, I seem to be retarded and never remember your new email address since your front page links to the old one)

  21. #21 |  Delta | 

    #9: “Until it’s taught to kids that you have every right to use phrases like ‘Am I being detained?’ and ‘Am I free to leave’ and ‘No, you may NOT search my car, or house or me’, this nonsense will never end.”

    We should do this, but is it not merely a stopgap measure? Should cops be able to ride roughshod over us all unless we know narrowly-constructed, legalistic magic code phrases (which are easily denied in fraudulent cop testimony; and variable by whim of current SCOTUS)? Should cops not simply be required to do the right thing in the first place — avoid lying, respect our rights, get search warrants?

  22. #22 |  AJP | 

    Radley – Fantastic post.

    My modest proposal for the single policy change that would go the longest way to genuine systemic reform is this: take a lesson from the U.S. military. Every jurisdiction should adopt a system where there is both a DA’s office and a publicly funded public defender’s office. Recruitment and overhead for these offices should be consolidated into a single unified administrative function. Attorneys hired into this system should be randomly assigned to one side or the other (with the randomness adjusted for numerical disparities owing to the larger number of prosecutors compared with public defenders). Once in the system, entry-level attorneys should have no more than three or four years on one side before rotating to the other side. Leadership positions in either the prosecution or defense component should only be available to those who have done at least one full rotation through each component, and promotion and salary decisions should be driven by performance assessments that include combined records for the service in both rotations. If you excel as a prosecutor and suck as a defense attorney, no promotion for you.

    I welcome comments or thoughts, as I think this type of proposal is not as out of reach as it may seem (largely because the military provides a useful template).

  23. #23 |  Pete C. | 

    It’s clear that the commenters on this blog are knowledgeable enough to keep their mouths shut tight when being questioned by police.

    Nonetheless, it’s also clear that many innocent people, who have not been charged with a crime and/or Mirandized, make misguided attempts to be good citizens by answering a few simple questions that should “clear things up”. This is sad and unfortunate, but also to some degree understandable because many people have been brought up to believe that the Police are our friends.

    What I don’t understand, however, is why it’s not uncommon for innocent people to confess to crimes that they didn’t commit. I’m not sure that Police misconduct (harsh or even brutal interrogation techniques) can fully explain this phenomenon. I’d like to think I could withstand this sort of treatment given the worse alternative of numerous years in prison.

    Anyone have links to good studies regarding why people falsely confess?

  24. #24 |  Andrew_M_Garland | 

    Never Talk to the Police

    Talking is dangerous because there are so many laws that you break every day. You are usually protected by invisibility. The police need to see “probable cause” to examine you further. You are clearly visible when they are asking questions, so watch out.

    Prof. Duane explains in these videos why he is proud of the 5th Amendment, and will never, ever talk to the police without a lawyer. You shouldn’t either. Don’t take his word for it; he cites the advice of Nuremberg Trial Chief Prosecutor Robert Jackson, and the U.S. Supreme Court. Prof. Duane is animated and interesting. This lecture is an eye-opener.

  25. #25 |  DoctorT | 

    I agree with everything in the post, but there is an omission. Reporters, journalists, editors, and news show producers bear a major share of the blame for the honoring of prosecutors who stretch or break the rules to get convictions and the disparaging of prosecutors who determine that the available evidence does not support an arrest or an indictment.

    I recall a case a year or so ago in which the mass media essentially had convicted a woman of criminally negligent homicide of her child and blasted the prosecutor for not bringing charges. Talk radio call-ins featured people who wanted to lynch both the grieving mother and the prosecutor. TV “news” shows featured opinionated journalists and pseudoexperts ranting about how our system had failed the child and how other children now were at greater risk of neglect. The ass media cared only about ratings, not about truth, justice, or fairness. Prosecutors know what they have to do to get good press, and many will act unethically to gain good press, reelection, or election to higher office.

  26. #26 |  Hauptmann Gerd Wiesler | 

    You think we imprison people on a whim? If you think our humanistic system capable of such a thing, that alone would justify your arrest.

  27. #27 |  Other Sean | 

    DoctorT #23,

    Go a step further and you are right. It is a favorite pastime on this site to blame politicians, judges, prosecutors, and most absurdly, cops (who are merely the enlisted rank servants of the state). The media is a slightly better target, but still one off the mark.

    Who tolerates all of the above? Who gives power to them? Who sits around and blithely passes judgement on the lives of others. Who could, if they wanted to, destroy the whole rotten system with one great shake of their collected heads? Who never does? Who never will? Who applauds every new law and rejoices in every punishment? Most of all, who shutters their ears when you try to explain why they are wrong?

    The fucking people, that’s who.

  28. #28 |  Weird Willy | 

    Never. Talk. To. The. Cops. Without. Your. Attorney. Present. Clear enough?

  29. #29 |  The Late Andy Rooney | 

    Pete C.

    Falseconfessions.org (linked to by the above article) is not as up to date as I’d have liked, but it provides information about numerous cases. I don’t know that it gives definitive answers as to exactly why people confess to crimes they did not commit, but it provides a basic outline of the techniques used by police.

    There was a great piece on Frontline called “The Confessions,” about the Norfolk 4, four Navy men convicted after confessing to involvement in a rape and murder, even as DNA evidence pointed to another man, who stated that he, and he alone, had committed the crime.

    Those four men had experienced Navy boot camp and active service, and so were used to dealing with high stress situations. That didn’t save them from falling prey to police interrogation techniques. And we’re not talking about torture. We’re talking about pretty basic interrogation techniques. Things as simple as telling a suspect he failed a lie detector test, when in fact he passed.

    It’s an intriguing subject. Paradoxically, suspects who are completely innocent (as opposed to those with some tangential involvement in the crime) may actually be more likely to confess, in the naive belief that they will be vindicated once the smoke clears and the evidence is examined in the clear light of day. Unfortunately, the jury then hears the taped confession and credulously accepts it. Yet another reason to always exercise our right to remain silent.

  30. #30 |  Phil in Parker | 

    AJP @22
    I have been thinking about a system that gives a voucher to anyone charged with a crime that involves jail as a possibility. None of this “if you can not afford one” crap The amount would be enough to mount a reasonable defense (not “Johnnie Cochran” level). Like $1,000 for shoplifting, $500,000 for capital murder.

    If someone if charged with muliple levels for the same crime, they get a voucher for each charge. The defendant and lawyers and pay or charge more than the vouchers, but the voucher will still pay part of the bill.

    Think of it a Quality Control for the procecutors.

    I know it’s a hard sell to the law-and-order types.

  31. #31 |  Delta | 

    #30: Intriguing; make sure to automatically peg it to inflation or COLA increases or at some point you’ll be at the negligible $5/day jury payment.

  32. #32 |  John Spragge | 

    One suggestion: ask hard questions of those who claim to represent the interests of victims or survivors. In some cases, these claims have a solid basis: calls for retribution do come from actual survivors of homicide and other heinous offences. But those who argue for greater legal severity, in the name of victims or survivors, make two specific ideological claims: that mercy or reconciliation always amounts to a direct transfer of interests from the survivor to the perpetrator, and that survivors who call for less leniency, less reconciliation, and less mercy in the law speak for all survivors, while survivors who call for mercy and reconciliation speak, if we should acknowledge their voices at all, for themselves alone. I believe we have to challenge those arguments if we hope for greater equity in the justice system.

  33. #33 |  Mike | 

    There’s only one way to win a police interrogation: Don’t participate in one. STFU except to say “I want a lawyer, and am exercising the right to remain silent.” After that, DO NOT TALK.

    STFU! (Shut The F*** Up). Understand?

  34. #34 |  Pi Guy | 

    …most absurdly, cops (who are merely the enlisted rank servants of the state).

    Ah, the Nuremburg Defense. Well, hey – why not? “Your Honor, I was ordered to place that man in the 450 degree oven! It’s not my fault!”

    Sorry, no. I cannot accept this. Perhaps only in the sense that We the Little People [™, ©, patent pending], stand up to the boot lickers, perhaps with force, and take back our dignity.

    Never. Talk. To. The. Cops. Without. Your. Attorney. Present. Clear enough?

    Well, let’s not take any chances on clarity of the message:
    NEVER. TALK. TO. THE. COPS. WITHOUT. YOUR. ATTORNEY. PRESENT.

    There. FIFY.

  35. #35 |  Burgers Allday | 

    Pafford’s idea about spending parity is also a good one.

  36. #36 |  AJP | 

    Burgers – The idea I am suggesting might result in greater spending parity, but it is possible there would still be a differential in spending allocated to the prosecution and defense components due to the different roles played by each. I think more of the impact would come from the joint hiring and administrative pool, the forced attorney rotation, and the tying of career progress to combined assessments of successful performance in the prosecution and defense rotations. This type of system could help undermine the flawed institutional culture and skewed incentives that are responsible for many of the bad decisions/results that come out of prosecutors’ offices in the status quo.

  37. #37 |  MSNBC’s Chris Hayes Feels ‘Uncomfortable’ Calling Fallen Soldiers ‘Heroes’ | 

    MSNBC’s Chris Hayes Feels ‘Uncomfortable’ Calling Fallen Soldiers ‘Heroes’…

    […]It’s a Long Road to Better | The Agitator[…]…

  38. #38 |  Burgers Allday | 

    Why would there be a differential “due to the different roles.” I don’t understand why the different roles would require differential.

    For my own opinion, i think justice is the fairest when both sides of a litigation spend equally.

    In civil suits there is no real way to make that happen.

    I see no reason why it shouldn’t happen in cases where government controls the money spent on lit-related svcs on both sides.

    Why specifically, do you think tere would be a differential? Is there a differential in the military system? Is so, why?

  39. #39 |  John | 

    It really does make you ask what ever happened to the old ideal of never putting the innocent in jail even if a number of guilty still go free.

    It’s like the systems is not biased toward being a criminal since clearly for every innocent person put in jail it’s possible that a guilty person is walking free — clearly I don’t think that will apply in this case.

    The other “interesting” point that’s this post brings out is the attempts to protect the victim’s rights seems to be taking on a certain “I’m just out for vengeance and want to be sure someone else suffers.” and not really about protecting victim’s rights or identifying the bad people.

  40. #40 |  Other Sean | 

    Pi Guy #34,

    The Nuremburg defense has nothing to do with it. I didn’t say the servants of the state are innocent; I would never say that. I merely said that you won’t get anywhere by focusing your attention on those lowly stooges.

    I mean…in 1942, you wouldn’t have tried to change the Nazi regime by saying “what we need is a better class of SS officers” or “I think there should be a rule that former prosecutors be barred from sitting on the Volksgerichtshof.”

    Of course not. You would have wanted to see the whole regime abolished! And yet there are plenty of our fellow travelers who think that if we could just get some nicer cops, or maybe tweak a few procedural rules in the courts, these would be somehow be meaningful steps in the right direction.

    I’m merely saying that the public is the real villain, and that it is folly to divert our eyes from that.

  41. #41 |  Delta | 

    #39: “It really does make you ask what ever happened to the old ideal of never putting the innocent in jail even if a number of guilty still go free.”

    In the college stats class I always teach: Lesson on Type I vs. Type II errors, I always have a short discussion in terms of criminal trials, which to prioritize/which is worse? Letting a guilty man go free, or sending an innocent man to prison?

    To date over ~5 years, no one has ever raised Franklin/Blackstone principle. But much more distressingly, for the first time this semester, I saw the student discussion settling on a consensus that the former was clearly worse. (Note that the Wikipedia article identifies this situation as emblematic of a totalitarian state.)

  42. #42 |  Other Sean | 

    Delta #41,

    I’m quite sure no nation ever really lived up to the Blackstone ratio, but you are right: there is something terrifying about living in a nation where people have stopped even espousing the principle.

    We are now trapped between a new monster and an ancient one. New is the nanny state idea that “all bad things require a law”; old is the moralistic notion that “all bad things demand someone be punished.”

    If we follow those two premises far enough, there will simply be no innocent people left, and thus no need to worry about protecting them from punishment.

  43. #43 |  Pi Guy | 

    OS:
    Fair enough, re-reading I see I jumped the gun a bit.

    You’re right, I s’pose it’s up to us to force the change. I just really, _really_ hate that the guys w/ the badges are, by far, the least accountable.

  44. #44 |  Bob Mc | 

    Michael Crowe Declared “Factually Innocent”
    14 years ago, a 14 yr old boy and two of his friends were coerced into confessing to the murder of his 12 yr old sister. This week a Judge exonerated them of the crime and expunged their records.

    Someone should inform Mr Cassell that THIS. ACTUALLY. HAPPENED.

  45. #45 |  Bob Mc | 

    Links for the above post:

    http://www.utsandiego.com/news/2012/may/26/judge-tries-cant-blow-away-cloud-over-michael-crow/

    http://www.trutv.com/library/crime/notorious_murders/not_guilty/coerced_confessions/6.html

  46. #46 |  Leon Wolfeson | 

    @19 – Yup, again, broken. The the UK tried to fix that a few years ago, and it generally has – the only normal grounds for exclusion are generally that you personally know someone, or that the case will be too long for your business.

    Less than 5% of cases, otherwise, see any Juror dismissed. And the only question you have to answer is if you’ll give both sides a fair hearing. There’s very little you can do to get out of jury service, either (You might be able to get out of long trials if you have your own business, but not service entirely).

  47. #47 |  Mike T | 

    In Jewish criminal law, an uncorroborated confession is insufficient grounds for conviction.

    Under the Mosaic Law, perjury was punished by sentencing the perjurer to the sentence for which the accused would serve if lawfully convicted. Since we’re talking about incentives here, I think sentencing a perjurer to execution for perjuring themselves against someone on trial for capital murder would be an excellent incentive to be honest.

  48. #48 |  Mike T | 

    Likewise, I think we should empower juries to hand down convictions against multiple defendants simultaneously. For example, a cop who is shown to have perjured himself during a trial does not need his or her own trial to receive due process. There is nothing of value a separate trial can provide the pursuit of justice against them that simply letting the jury say “we find primary defendant John Doe guilty of X and Y, innocent of Z and Officer Lying Pig guilty of perjury.”

  49. #49 |  Invisiblehand | 

    Thank you for your thoughtful post Radley.

    I concur that there are no easy answers since what we essentially want is to people behave ethically — the pursuit of justice — instead of their own interest. However, from the perspective of a layperson, I think it is a mistake of judging prosecutors solely by the outcomes instead of their choices since it appears to me that there is too much inherent randomness in the process. Suppose that a conscientious prosecutor will still convict an innocent person 0.1% of all convictions. That would imply that out of 100 convictions you would have a ~10% probability that someone would be innocent. If instead, the above prosecutor had a 0.01% probability, then there would be a 1% probability that someone would be innocent. Now I’m unclear what “beyond a reasonable doubt” broadly means in this context; i.e., is it 99, 99.9, or 99.99 percent certain? Simply based on anecdotes, I suspect that when you carefully evaluate whether the “man on the Clampham omnibus” would convict, you’d be pretty far from 99.99% certain. To some extent, it would be surprising to see prosecutors behave in a different manner than their constituents.

    Personally, I think that there needs to be an active set of checks and balances. Perhaps an active branch of the Justice Department that prosecutes civil liberties infractions by prosecutors or a federal mandate that lets civilians sue prosecutors for misconduct in tort law or both.

  50. #50 |  supercat | 

    #48 | Mike T | “There is nothing of value a separate trial can provide the pursuit of justice against them…”

    The issues of whether a person’s statements are factually true, and whether a person had a reasonable belief that his statements were true at the time they made them, are somewhat separate. To find someone of perjury, a jury should find beyond a reasonable doubt not only that the person made false statements, but that the person either knew to be false or was wantonly indifferent to their truthfulness or lack thereof. If someone caught lying on the stand, it might be good to have the jury who witnessed the testimony in question decide the perjury charge, but the person should be allowed to present testimony and arguments as to why they believed their statements to be true.

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