The website for Business Insider Magazine recently summarized an article written for Georgetown Law Journal by Hon. Alex Kozinski,
who has been a judge on the U.S. Circuit Court of Appeals since 1985 (appointed
by Ronald Reagan).
The headline the magazine chose for this article is
“JUDGE IDENTIFIES 12 HUGE LIES ABOUT JUSTICE IN AMERICA
No one who reads this blog over the years should be
surprised by any of Judge Kosinski’s observations. I have mentioned many cases
that were reported in legal journals or in general news media that made the
same points. Nonetheless, here is the LIST of MISCONCEPTIONS that Judge
Kosinski “identified.”
1. EYEWITNESSES ARE
HIGHLY RELIABLE
As I have
reported many times, the truth is that eyewitness testimony is among the LEAST
RELIABLE forms of evidence. The myths perpetuated by so-called common sense,
such as “I’ll never forget that face” . . . “ are wrong. False ID’s
account for up to a third of convictions of the innocent, including those who
have been executed.
2. FINGERPRINT EVIDENCE IS FOOLPROOF
As with
most forms of forensic evidence the reliability varies greatly with the degree
of integrity, competence and intelligence of the expert examiner. Fingerprints
can be planted, forged, misread. Experts are rarely independent; rather, they
are employed by police or prosecutor, therefore are often biased.
3. OTHER TYPES OF FORENSIC
EVIDENCE ARE SCIENTIFICALLY PROVEN AND THEREFORE INFALLIBLE
In many cases DNA testing has proved
that the wrong person was convicted. Studies show that the evidence that misled
the jury was often given by EXPERTS asserting the infallibility of their field,
including BLOOD STAIN / SPATTER; ARSON; FOOT AND SHOE PRINT; TIRE PRINT; HAIR
COMPARISON; BALLISTICS COMPARISON . . . The truth is that the scientific
foundations of these fields are dubious, often amounting to mere guesswork by
the expert (who is usually employed by the prosecution).
4. DNA EVIDENCE IS
INFALLIBLE
There is an
irony here. When used carefully, DNA evidence can be effective to prove or to
disprove identity. However, in practice, it is just as fallible as any other
science based tool, depending on the handling of the evidence from start to
finish. Additionally, the statistical assumptions regarding racial and ethnic
genetic characteristics that underlie its accuracy have been called into
question. The FBI recently acknowledged such “mathematical flaws.”
5. HUMAN MEMORIES ARE
RELIABLE
A corollary
to the ID problem is the myth that the mind is like a recorder, capturing
experiences which can be replayed accurately. This has been proven to be
untrue. Memories are subjective, colored by fear, prejudice, and many other
factors that influence perception.
6. CONFESSIONS ARE
INFALLIBLE BECAUSE INNOCENT PEOPLE DON’T CONFESS
Kosinski
debunked that claim. Truth is that interrogation techniques, not necessarily
torture but almost as coercive can often adduce false confessions.
7. JURIES FOLLOW THE
JUDGE’S INSTRUCTIONS
The law
assumes that jurors understand and follow the rules as laid out by judges in
their oral and written instructions. This is called “a legal fiction.” Kosinski
observes that courts have no way of knowing is jurors actually do that. From my
experience, I believe they frequently do not understand the details of the
legal principles, and that they ignore admonitions by the court all the time.
E.g.: “You are not to consider evidence that is stricken” . . . “You are
to ignore that answer” . . . “You are not to form any opinion until all
the evidence is in” . . . “You are not to discuss the case with anyone
else.”
8. PROSECUTORS PLAY
FAIR
Kosinski
points to the many cases that have come before appellate courts in which it was
shown that prosecutors concealed evidence that pointed to the innocence of the
defendant. This violation of the Constitution has resulted in many reversals,
but sadly many more cases in which the appellate judges (a majority are former
prosecutors) have called “harmless error.” Even when they have found egregious
misconduct, courts very rarely punish the trial prosecutor, who might have
conspired with police to railroad an innocent person.
9. THE PROSECUTION IS AT A
SUBSTANTIAL DISADVANTAGE BECAUSE IT MUST PROVE ITS CASE BEYOND A REASONABLE
DOUBT
In
rebutting this false belief, Judge Kosinski mentions a factor that I have often
found to be true. The defense is at a disadvantage because of the inherent
structure of our trials. The prosecution goes first, in argument, in presenting
evidence and in closing. This is due to a concept of fairness because it has
the burden of proof. But as Kosinski observes, "whoever makes the first assertion about
something has a large advantage over everyone who denies it later."
Also, the concept of “reasonable
doubt” is so vague that it allows conviction on as much or as little evidence
as the finders of facts wish.
10. POLICE ARE OBJECTIVE
IN THEIR INVESTIGATION
Investigators of crime have been
shown to alter or remove evidence, unduly influence witnesses, extract false
and involuntary confessions, manipulate the circumstances of cases in order to
achieve their favored result, which in almost all cases is a conviction. The
attitude of police officers is all too often, “I know this person is guilty, so
justice is served even if the rules are bent a little to get justice.”
11. INNOCENT PEOPLE DON’T
PLEAD GUILTY
The system is designed to coerce
guilty pleas. Prosecutors often OVERCHARGE defendants. If a person is exposed
to life in prison he is prodded to take a plea bargain for a lesser sentence.
Criminal defendants are often people who have long distrusted the fairness of
the system, believe the deck is stacked against them. They distrust the
competence and good faith of their appointed counsel – and in far too many
cases this distrust is justified.
12. LONG SENTENCES DETER
CRIME
Among western nations, the U.S. has
by far the highest per capita prison population (716 prisoners for every
100,000 people). "As with much else in the law, the connection between
punishment and deterrence remains mysterious," Kozinski writes. "We
make our decisions based on faith."
I have watched the evolution of
California sentencing laws since 1968. The legislature – encouraged by the
Initiative process – has upped sentences for almost all crimes for the past 40
plus years to the point that one of every four African American men between the
age of 18 and 30 is either in jail, prison, on probation or parole. The prisons
warehouse thousands with no program or hope for rehabilitation.
MORE LIES . . .
Off the top
of my fading memory, I would add these lies to Judge Kosinski’s list:
JUDGES ARE IMPARTIAL
In California, most Judges are
appointed by the governor. Whereas in the past, appointments were a reward for
party loyalty or to honor eminent lawyers such as senior partners at
prestigious firms, judges are now chosen to carry on the program of vigorous
law enforcement. To insure few embarrassments, prosecutors are elevated to the
bench as soon as they qualify. For political correctness, a fair percentage of
women and minority racial and ethnic prosecutors are picked. Almost all these
appointees see their duty to continue the job they started as prosecutors .
. . which includes protection of their colleagues in their former office
and the other law enforcement agencies.
THE GUILTY ARE OFTEN FREED BY LIBERAL
JUDGES ON TECHNICALITIES
Wrong on so many levels it is hard
to begin. “Technicalities” such as those in the 4th, 5th,
6th, and 8th Amendments to the Constitution are insured
by excluding evidence obtained in violation. That is the principle, but in
practice, such rulings are rarely made. It is even less likely that excluding
bits of improperly obtained evidence results in acquittal or dismissal.
Second misconception is that judges
are “liberal.” In California, as I have shown, governors beginning with Ronald
Reagan and including a succession of Republican conservative and nominally
Democratic governors (e.g., Grey Davis) cautiously appointed “safe” judges who
would not embarrass their tough on crime agendas.
Third, appellate courts rarely
reverse convictions on any ground, much less on so-called “technicalities.”
JUSTICE DELAYED IS JUSTICE DENIED
Although delays can result in bad
results – eg: loss of evidence, absence of witnesses – delays sometimes insure
justice. This has been proven by the discovery of DNA evidence for use in cold
cases which have lingered unsolved. It has also uncovered unjust convictions
and freed prisoners who have serve 10, 20, 30, or more agonizing years behind
bars for crimes they did not commit. Capital cases are no exception to this.
The expense of multiple appeals and the use of habeas corpus to review these
cases has annoyed those who call for “speedy justice.” But the price of speed
has been and will surely continue to be the execution of innocent people.
