Why I Think the US Justice System is Broken – and Why It’s Not Getting Fixed

I was recently made aware of a quote from the ancient Greek playwright, Euripides. “Ours is a universe in which justice is accidental, and innocence no protection.”  I often feel like this describes our current justice system exactly, but it’s not supposed to be that way, and it doesn’t HAVE to be that way.  As with any system established and run by “humans,” the justice system, including those who run it, is exposed to the entire gamut of human frailties – pride, ego, ambition, greed, envy, passion, deceit, prejudice, hate, intolerance, power, influence, and on and on.  The situation hasn’t really changed since ancient Greece, and I don’t see the nature of humanity changing radically any time in the next  few thousand years, but there are things that can be done to at least mitigate the effect of these human shortcomings on the justice system.  This post will be comprehensive and quite long – so, buckle up, and here we go.  I hope that those of  you who have the patience to read through to the end may find it interesting, enlightening, and hopefully thought provoking.

As you might guess from the title, this post will be “editorial” in nature.  I’ve been doing innocence work for five years now, and have worked with seven different Innocence Projects from across the US and one foreign country.  Over that time, I’ve been exposed to the fine details of over 40 different cases.  These are all post-conviction cases in which there is a belief by the associated Innocence Project in the actual innocence of the defendant, and thus belief of a “wrongful conviction” on the part of the justice system.  In addition, my research in these cases has exposed me to many other additional cases in which a wrongful conviction occurred.  Consequently, I’ve seen a lot of the things that can go wrong in the justice system, and have been able to make judgments about how they happen.  This post will coalesce my observations into statements about why I think the US justice system is broken.  I’m going to be painting a pretty dark picture, so keep in mind that my exposure has been to cases in which the justice system failed, but there are lots of them.  There really isn’t any substantiated data for how many wrongful convictions occur in the US every year, but recent data says it’s between 5,000 and 10,000 per year.  One is too many.  At the end of the post, we’ll talk about why it’s not getting fixed.

I’m not an attorney, and some may accuse me of being a naive, optimistic idealist (which I am) or of tracking muddy footprints through the hallowed halls of justice; but I am only reporting what I have observed.  And if you think I’m making some of this stuff up, I strongly recommend you read the book False Justice: Eight Myths That Convict the Innocent by Jim and Nancy Petro.  (It’s available from amazon.com for $16.)  Jim is a former Attorney General for the state of Ohio, and Nancy, in addition to being an author and advocate, is also a contributing editor to this blog.  Now, are there good and dedicated prosecutors and police out there who are absolutely committed to seeing that true justice is served?  Of course.  Are there qualified and capable attorneys who will do their utmost on behalf of their clients?  Of course.  Unfortunately, there are also “others.”

All that being said  ……..

Why I Think the US Justice System is Broken

(As a preview, we’ll touch upon Bad Lawyers, Prosecutors, Judges, Police, Juries, Junk Science Forensics, False Confessions, Shoddy Work by Medical Examiners, Testimony from Experts Who Aren’t Really Experts, Finality of Judgement, Highly Restrictive Rules for New Evidence, Eyewitness Identification, and Recantations.)

Point 1 – Bad Lawyers

The occupation of “attorney” is like any other profession, such as doctor, mechanic, accountant, or engineer.  There is a statistical distribution of “goodness” — or competence.  There are “good ones”, and there are “bad ones,” and with lawyers, people really have little way to tell which are which.  When you need a lawyer – NOW (because you’re in jail) – you don’t have a lot of time to research records of performance; and if you’re being provided a “court appointed” attorney, you don’t even get to pick.  There are the lawyers who graduated from law school, passed the Bar Exam, and are licensed to practice law in the state, but who seem to not be  competent – at least not to defend a criminal case at trial.  For medical doctors there is at least a requirement to demonstrate competency through a period of “residency,” but there is no such requirement for lawyers.  I’m currently involved in a case in which an expert, after reviewing the evidence and the trial transcript, submitted a report to be used in post-conviction legal motions that stated, “The defense attorney may as well not even have been in the court room.”  My experience tells me that there are wide disparities in the capabilities and competence of individual attorneys.  And when John Q. Public goes to hire an attorney, how does he know that the person in whom he’s about invest his trust – and his money – is any good?  He basically doesn’t.

It’s all too common in innocence cases to dig into a case, carefully analyze the evidence and testimony, and find many compelling defense arguments that should have  been made at trial – but weren’t.  It’s clear that defense counsel in these cases did not exercise sufficient diligence (or intelligence) in analyzing the evidence.  I see this time and again.

There are lawyers who completely lose sight of maintaining post-conviction options for their client.  Often, strong cases of actual innocence are thwarted by defense lawyers’ failure to preserve a defendant’s procedural avenues for relief.  See article  by Carrie Sperling of the Arizona Justice Project here.

There are attorneys who will take on a case even though they have an absolutely clear  conflict of interest.  This can range from ‘the attorney also representing people who will be testifying against his client in court’ to ‘an attorney having an affair with his client’s (the defendant) wife.’  I’ve seen both, and there are others.  There are also cases of lawyers who show up for court drunk, or don’t show up at all.

Of course, there is the “money factor.”  I don’t think it’s a secret to anybody that the effectiveness of your representation in court correlates highly with how much you can spend on defense counsel.  Is this “justice for sale?”  Perhaps, but money is no guarantee.  There are cases in which the defendant spent hundreds of thousands of dollars on defense counsel, and still wound up wrongfully convicted – for some, or all, of the reasons that will follow.

I come from a 42-year career in corporate America.  In business, your performance is constantly being measured and evaluated.  Your measured and documented performance determines whether or not you get a raise, what kind of work assignments you get, and even if you remain employed at all.  When an attorney ineptly bungles a case, or breaches ethics with a conflict of interest, there is a decided lack of accountability and consequences.  It’s, “Oh well.  Too bad.”, and on to the next case.  But the convicted client still gets the bill, and still goes to prison.

Point 2 – Prosecutors

To begin with, “prosecutor” (or DA or state’s attorney) is an elected political position.  They generally run on a platform of “tough on crime”, which is OK as long as you get it right.  We all know that the first job of any politician is to get re-elected.   The political nature of their job makes them fiercely aggressive and loathe to admit anything that would blemish their record.  You can imagine that if a prosecutor has a major conviction overturned, their opponent in the next election will make political hay with that.  And while some (many? most?) prosecutors continue to obstinately refuse to acknowledge their errors in convicting an innocent person, the real criminal remains free to continue inflicting harm on the public – a point so cogently made by Nancy Petro in her recent post.  Even when faced with irrefutable, incontrovertible proof that the wrongfully convicted person is innocent, they will dig in their heels and refuse to give an inch.

They’re after convictions; and not necessarily justice (my opinion).  This is how they establish their “record.”  I’ve actually heard a prosecutor quoted as saying, “We will win at all cost.”  Really?  And what if the person you’re prosecuting is actually innocent?  The absolute “poster boy” for a prosecutor who was seeking a conviction at all cost, motivated by a pending tough re-election bid, is Mike Nifong.  Mr. Nifong was the former Durham County, NC district attorney who prosecuted the Duke lacrosse team rape case.  Fortunately, the parents of the accused players had the financial wherewithal to bring in some legal “big guns,” and charges were ultimately dismissed after the case was taken over by the North Carolina Attorney General.  But if you followed the case, you know that the victim was NEVER credible, and the prosecution built a case on fairy tales.  Mr. Nifong also witheld evidence.  He was eventually disbarred, and even served jail time, and civil suits against him were allowed to proceed; all for political ambition.

The justice system deck is heavily stacked in favor of the prosecution.  They have all the resources.  They have a staff of attorneys.  They have the police.  They have the crime labs.  They have a budget for expert witnesses.  The defendant is forced to pay for attorneys, investigators, testing and experts himself.  The defendant may have a court-appointed attorney (who will be minimally paid and minimally invested), and the court may even provide some funds for testing or experts, but it’s no match for the firepower available to the prosecution.  A case in point would be the recent Hang Bin Li shaken baby syndrome trial.  The prosecution put nine expert witnesses on the stand, while the defense, which was funded largely by donations from the NYC Chinese community, could only afford one.  Clearly, this is not a fair fight, and what the hell is the jury going to think?

Prosecutors make “deals” with snitches and informants, which I think is one of their more loathesome practices.  They offer favorable treatment (lesser charge, shorter sentence, early release) in exchange for testimony that helps them get a conviction, whether it be truthful or not.  I just started on a case today in which a jailhouse snitch had his charge reduced from ‘murder’ to ‘involuntary manslaughter’ for his (patently false) testimony, and what’s more, this same guy snitched in six other cases!  You can’t tell me that prosecutors don’t know that these “snitches” are going to get on the witness stand and absolutely lie so they can get “a deal.”  I’ve read testimony in which a prosecutor, when confronted with this practice said, “It’s unfortunate, but necessary to see that justice is done.”  I would contend that the way this trial tactic is practiced, it only serves to see that injustice is done.  Prosecutors will also coach or threaten witnesses, and sometimes even tell them what to say.  I think there’s a legal term for all this – suborning perjury?  A very recent documented example of this kind of behavior is the case of Randy Arledge in Texas.  Randy Arledge had his Texas rape and murder conviction overturned based upon new DNA evidence.  He was wrongly convicted based on the false testimony of an incentivized informant who was given favorable consideration in his sentencing in another case.  Incentivized testimony is one of the leading causes of wrongful convictions.  The Innocence Project has data showing that 16% of the 225 wrongful convictions overturned by DNA were due to snitches or informants.  The National Registry of Exonerations data for 873 cases shows that 51% of those wrongful convictions involved perjury or a false accusation.

Prosecutors can even think THEY should decide who is guilty or innocent.  The mentality is, “These guys may not have done it but they’re bad guys and they have to go to prison.”  In fact, a prosecutor has actually been quoted as saying just that.

We see what’s called “Brady violations” all the time in cases of wrongful conviction.  This is when a prosecutor does not turn over exculpatory evidence to the defense.  This violates the law, but there never seem to be any consequences.  And prosecutors are protected from being sued by defendants who have been wrongfully convicted by “prosecutorial immunity.”   In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court established absolute immunity for district attorneys or prosecutors  from civil suits resulting from their government duties.  Here is an excellent article from the Fordham Law Review on the subject of prosecutorial immunity:  Unsupportable and Unjustified_ A Critique of Absolute Prosecutorial Immunity  Here is a link to an enlightening blog post:  The Criminal Justice System and Prosecutorial Immunity: Time to Upset the Apple Cart.  Prosecutors can be held accountable, and prosecuted, for criminal acts and willful misconduct, but it is difficult to prove and it rarely happens that a prosecutor suffers consequences for misdconduct.  This quote from Margaret Z. Johns, author of the above-cited Fordham Law Review article:  “Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities.”  And again from Margaret Z. Johns:  “In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy. As one commentator observed, the arguments supporting absolute prosecutorial immunity “offer a wry blend of fairy tale and horror story.””

If you would like to explore this even further, there is an excellent article in the December 2012 Fordham Law Review by Joel Rudin, The Supreme Court Assumes Errant Prosecutors Will be Disciplined by Their Offices or the Bar: Three Cases Studies that Prove that Assumption Wrong.  You can download it here: Rudin_November.

Point 3 – Judges

My experience tells me that judicial misconduct is rare, but judicial bias may not be.  Like prosecutors, judges in the justice system are an elected political position.  Arizona is a minor exception, because their judges are elected on a “non-partisan” ballot, but elected nevertheless.  As such, and facing the need to get re-elected, they are beholden to their electorate.  There is the danger (probability?) that the biases of their electorate may become biases of their judgements.  Additionally, at least where I live, to be elected to local office, it’s necessary to belong to a particular political party.  This creates a situation in which there could be a much more qualified candidate from the opposing party, but they will never get elected.

When judges do “go wrong,” the impacts can be staggering.  And they receive the same absolute immunity from civil suit that prosecutors do.  Here is a quote from Robert Craig Waters, writing in the article Judicial Immunity vs. Due Process:  When Should a Judge be Subject to Suit?  You can read that article here:  Judicial Immunity.

“In the American judicial system, few more serious threats to individual liberty can be imagined than a corrupt judge.  Clothed with the power of the state and authorized to pass judgment on the most basic aspects of everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The injuries inflicted may be severe and enduring. Yet the recent expansion of a judge-made exception to the landmark Civil Rights Act of 1871, chief vehicle for redress of civil rights violations, has rendered state judges immune from suit even for the most bizarre, corrupt, or abusive of judicial acts.’ In the last decade this “doctrine of judicial immunity” has led to a disturbing series of legal precedents that effectively deny citizens any redress for injuries, embarrassment, and unjust imprisonment caused by errant judges.”

I am in total support of retired Supreme Court Justice Sandra Day O’Connor, who has devoted much of her post-court effort to the issue of judicial independence.  Her contention is that judges should be selected based upon an apolitical merit system.  Here is a NY Times article by Sandra Day O’Connor titled “Take Justice Off the Ballot”.

Point 4 – Police

The police – I do not envy them their job.  Because of the nature of their job, they are compelled to spend much time, effort, and energy dealing with the scum of society.  I’ve heard a police officer openly admit that this makes them cynical and jaded.  How could it not?  This post will not undertake to examine the situational, motivational, and psychological reasons for why someone chooses to become a cop, but that could certainly be fodder for a future post.

Think about this.  The police get to decide what they investigate, and what they don’t; what they consider, and what they don’t.  This is how the phenomenon of “police tunnel vision” comes into play (I prefer to use the psychological science term “confirmation bias.”).  A classic example would be the Michael Morley case in Texas, which has been prominently featured on this blog.  Michael was convicted of the brutal murder of his wife.  In this case, the Sheriff walked into the crime scene, and pronounced, “The husband did this.”  Well, that was that, and Michael Morley was “toast,” and spent 25 years in prison after being wrongfully convicted.  The police, early on, can convince themselves that they know who the real perpetrator is, and then the rest of the investigation just becomes an exercise in confirming to themselves what they already believe – at the expense of missing or ignoring (or even hiding) exculpatory evidence.  There are even documented cases of police creating or planting false evidence to support their contention that a person is guilty.  For more on “tunnel vision,” please see this previous WCB post by Mark Godsey, The Disease of Certainty.

There is a culture that can build within law enforcement that “the end justifies the means,” and that it’s OK for the ‘good guys’ to lie and cheat as long as it helps ‘get the bad guys.’  See this WCB post from Martin Yant on Police Dishonesty.

Not only does police misconduct result in wrongful convictions, but it also breeds an atmosphere of public mistrust.  Please see this post by Nancy Petro on that very issue.

Point 5 – Juries

I don’t know about you, but juries scare me to death.  There is a sarcastic joke that says “the definition of a jury is 12 people who aren’t smart enough to get out of jury duty.”  This is clearly said in jest, but it gives one pause.  You just never know what kind of squirrelly thoughts, ideas, and beliefs reside in a person’s brain.  The very fact that an occupation called “jury selection consultant” exists has to tell you something.

Humans are emotional creatures.  Both prosecutors and defense attorneys do their utmost to leverage this fact in their trial strategies.  Unfortunately, this turns the courtroom from a place of facts, logic and reason into ‘theater.’  The attorneys are playing to a human audience, and they do whatever they can to engender strong feelings on the part of the jury – hate, disgust, bias, support, or sympathy.  The trial becomes not about facts and logic, but about emotion and feelings.  I’m familiar with one trial in which the prosecutor stated to the jury that the defense’s expert witnesses were nothing but “whores,” and were only testifying for the money.  So, I suppose the prosecution’s expert witnesses were testifying pro bono – right?

Trial by jury is a constitutionally guaranteed right, and the jury is the foundational bedrock of the justice system, so I doubt there is anything to be done about it ———- except maybe request a bench trial.

Point 6 – Junk Science Forensics

To begin the discussion of forensics, I’d encourage you to read the previous WCB post The Sorry State of Forensics in the US.

The Innocence Project has data from 225 DNA exonerations showing that 52% of those wrongful convictions involved “unvalidated or improper forensics.”  Data from the National Registry of Exonerations for 873 cases places this number at 24%.

The ONLY forensic technology (I refuse to call it a “science.”) that has a truly scientific foundation is DNA analysis.  And the only forensic technology that can make a statistically valid identification of a single individual is nuclear DNA analysis.  Every other forensic discipline has evolved through anecdotal and empirical observation, resulting in statistically invalid conclusions based up0n flawed inductive reasoning.  This is true even for fingerprints – just ask Brandon Mayfield, who was falsely accused of the Madrid, Spain train bombings because his  fingerprints, which the FBI called a “slam dunk” match, were mistaken for the Algerian, who actually did it.  Fingerprints are, in fact, “pretty good,” and they have accounted for more criminal convictions than any other forensic discipline, but they are not infallible.  This is particularly so, because fingerprints, like most forensics, relies on the OPINION of a human examiner, with issues of training, experience, certification, bias, fatigue, overwork, and competence.

In 2009, the US National Academy of Science published a congressionally commissioned report, Strengthening Forensic Science in the United States – a Path Forward.  The report was highly condemning of the practice of forensics in the US.  While the report is quite lengthy, I would recommend reading Chapter 5, which offers a critical review of many of today’s current forensic disciplines.

My judgement would be that the “worst of the worst” have been bite marks (forensic odontology), blood spatter, hair evidence, and arson investigation (prior to 2000).

Point 7 – False Confessions

The Innocence Project has data from 225 DNA exonerations showing that 23% of those wrongful convictions involved a false confession  According to data from the recently established National Registry of Exonerations which now has records of over 1,000 exonerations, 15% of those wrongful convictions involved a false confession.

For more information about how and why false confessions happen, please see previous WCB posts on false confessions here and here.  And to understand why recantations of false confessions don’t work, see Point 13, Recantations, below.

Point 8 – Shoddy Work by Medical Examiners

The responsibility of the medical examiner (or coroner) is to determine manner and cause of death, and as with any other profession, there can be issues of competence and training.  Medical examiners are typically appointed, and coroners are typically elected. There are too many medical examiners or coroners who have not been properly or adequately trained to do their job.  In some jurisdictions, it’s not even required that the coroner be a physician.

I know of a case in which a deputy medical examiner, who had only been on the job for a month, ruled in the death of an infant that the cause of death was blunt force trauma to the head, and that the manner of death was homicide.  The father of the baby was convicted and sent to prison.  Subsequent to that, three internationally recognized pathologists, after reviewing the autopsy records, testified (by affidavit) that the cause of death couldn’t possibly have been blunt force trauma.  Clearly, the medical examiner was either incompetent or inexperienced.  Too bad.  The father’s still in prison 14 years later.

It is common practice for an investigating police officer to attend the autopsy of a victim.  This is a wonderful opportunity for the police to “coach” the medical examiner, and they do.  “Doc, this one’s a homicide.”  This cannot help but influence the objectivity of the medical examination.  This practice must stop.  Autopsies must be conducted without any undue outside influence.

Then there is Dr. Steven Hayne, who performed most of the autopsies in the entire state of Mississippi for over 15 years.  He was performing 1,700 autopsies a year (over 4 per day for every day of the year), while also holding down two other jobs.  This is seven times the maximum case load recommended by the The American Association of Medical Examiners.  His shoddy work has called into question the integrity of hundreds of convictions.  You can read a NY Times story about Dr. Hayne here.  Dr. Hayne may be at the extreme end of this problem, but medical examiners who stretch themselves too thin, or who practice with inadequate training and experience are not rare.

Point 9 – Testimony from “Experts” Who Aren’t Really Expert

No degree?  No problem!  The article here from Pro Publica documents the case of a woman who paid $495, took 90 minutes of online instruction, and passed a multiple choice test to become a Certified Forensic Consultant.  Here is an excerpt from the article:

“This is how I — a journalism graduate student with no background in forensics — became certified as a “Forensic Consultant” by one of the field’s largest professional groups.  One afternoon early last year, I punched in my credit card information, paid $495 to the American College of Forensic Examiners International Inc. and registered for an online course.  After about 90 minutes of video instruction, I took an exam on the institute’s web site, answering 100 multiple choice questions, aided by several ACFEI study packets.  As soon as I finished the test, a screen popped up saying that I had passed, earning me an impressive-sounding credential that could help establish my qualifications to be an expert witness in criminal and civil trials.  For another $50, ACFEI mailed me a white lab coat after sending my certificate.”

Then there is the phenomenon of “dueling experts.”  This happens in cases in which both the prosecution and defense call expert witnesses who present diametrically opposing opinions of the evidence.  They can’t both be right.  So who is the real expert, and who should the jury believe?  This is usually determined by “sheer force of numbers.”  Whoever can put the most experts on the stand gets the credibility with the jury.  And in these cases, the prosecution almost always wins, because they can afford the experts.  We see this universally in shaken baby syndrome cases.

Point 10 – Finality of Judgement

There is a doctrine within the law called “finality of judgement,” and it’s been around since 1792.  The doctrine of finality of judgment is grounded on the fundamental principle that, at the risk of occasional error, the judgment of courts must become final on some definite date fixed by law.

The justice system considers the jury to be infallible, and once you’ve been convicted by a jury, and a judgement entered, you’re pretty much toast.  Yes, there is an appellate process (thank goodness), but there are all kinds of legal, procedural and time bars built into it.  In addition, prosecutors will refuse to release evidence, and will fight for years to prevent further scientific testing.  The time required to accomplish post-conviction remedies is measured in multiple years – as many as 30, but the average is “about” 7; 15 to 20 is not uncommon.  And all this time, an innocent person sits in prison, or in some cases, has been executed.

Point 11 – Highly Restrictive Rules for New Evidence

This is one of the areas that makes the least sense to me.  Most states use some form of the same set of rules that came out of the decision in the case of Ohio vs. Petro in 1947.  They establish the conditions under which new evidence may be considered post-conviction, and those rules are:

(1) discloses a strong probability that it will change the result if a new trial is granted

(2) has been discovered since the trial

(3) is such as could not in the exercise of due diligence have been discovered before the trial

(4) is material to the issues

(5) is not merely cumulative to former evidence

(6) does not merely impeach or contradict the former evidence.

These all seem pretty straightforward, but the one that gives post-conviction innocence workers heartache is #3, “is such as could not in the exercise of due diligence have been discovered before the trial.”  And the definition of “due diligence” and “discoverability” is at the discretion of the court.  This means there could be evidence indicating, or proving, innocence that the defense attorney at time of trial may just not have known about, or was not competent enough to seek out; and this evidence will invariably be denied by a post-conviction court.  It’s there, it existed, and it may prove innocence, but the court has ruled it discoverable, but it wasn’t entered at trial, so  …..  too bad.

You can see a previous WCB post on this subject here – New evidence rules.

POINT 12 – FALSE OR MISTAKEN EYEWITNESS IDENTIFICATION

Courts and juries place great stock in eyewitness identifications.  An eyewitness identification will even trump physical evidence or a solid alibi in court.  This is unfortunate, because eyewitness identification has been shown to be the least reliable form of identification there is.  In addition to all the human psychological and physiological problems involved with eyewitness identification (visual acuity, distance, lighting, weather, memory, panic & fear, racial bias), there is the issue of how police conduct lineups – both photo lineups and live lineups.  For example, in the Duke lacrosse rape case, the victim was shown only pictures of members of the lacrosse team.  Investigators conducting lineups will frequently “coach” the witness and even offer praise.

An absolutely classic example of how eyewitness identification can be wrong is chronicled in the book Picking Cotton by Jennifer Thompson-Cannino and Ronald Cotton.  Jennifer, while a student at college, was raped in her apartment.  She spent hours with her attacker, and made a concerted, deliberate effort to memorize every detail of his appearance.  She picked Ronald Cotton out of a photo lineup.  She also identified him in a live lineup, and twice in court.  Ronald was convicted and sent to prison.  The only problem is – Jennifer was WRONG.

Innocence Project data for 225 DNA exonerations indicates that 77% of those wrongful convictions involved false or mistaken eyewitness identification.  The National Registry of Exonerations data for  873 exonerations determines that number to be 43%.  These are whopping big numbers.  And thankfully, this is one area in which the available data has captured the attention of the legislators, and some good progress has been made.  Recent legislation in Oregon, Florida, and New Jersey have taken a big step toward improving the reliability of eyewitness identification.  Several other states are considering legislation to improve the reliability of eyewitness identifications and/or a jury’s understanding of the fallibilities of it.  Ohio’s recently passed SB77 includes provisions for ensuring that police conduct photo-lineups in sequential, double-blind fashion.

POINT 13 – RECANTATIONS

We know how the courts, and the whole justice system, view recantations.  They basically don’t.  Just be aware – your first sworn statement is the only one that counts.  Recantations are routinely dismissed.  There is some logic behind this in that a recantation begs the obvious question, “Well, which time were you lying?”

The view of recantation is the same whether it be the recantation of a confession or of witness testimony.  A false confession may have been coerced.  A witness may lie because they want revenge (a jilted lover), or they are seeking a reward (Crime Stoppers), or they got a deal from the prosecutor.  But none of this matters once the original sworn statement is made.  I’m involved in a case in which the prosecution’s primary witness originally came forward for the Crime Stoppers reward.  It’s obvious to even the casual observer that her trial testimony is pure fairy tale, and it conflicts with all the physical evidence, but her testimony convicted the defendant, and he’s now been in prison for over a decade.  The witness recanted her testimony years ago, but that doesn’t matter.  We find ourselves jumping through very high hoops for a long period of time (years) to try to prove by other means that the defendant couldn’t possibly have done it, and the poor guy is still in prison.

Surely, there must be a better way to handle this.

Why is All This Not Getting Fixed?

Now, if all the above-described warts weren’t ugly enough in their own right, here’s the REAL problem:  We see the same things happening over and over and over again.  And so why is all this not getting fixed?  Several reasons.

1)  The system lacks even the most basic data needed to measure performance – “Did we get it right, or did we get it wrong?”  The recently established National Registry of Exonerations is a great first step in trying to measure the end result of the process, but there is so much in the process that precedes the final judgment – police performance, prosecutor performance, attorney performance, medical examiner performance, expert witness performance, judicial performance.  If you would like to see the data that the National Registry of Exonerations has compiled so far, you can access it here:  exonerations_us_1989_2012_full_report .  You can’t fix what you don’t measure.

Once you have the data, there needs to be an objective mechanism in place to analyze it to determine the root cause(s) of the problems and put systems and processes in place to correct the root cause and monitor performance to ensure compliance.  In industry, making the same mistakes over and over is just absolutely not tolerated, so this is exactly what industry and corporate America do every day of every year.  Their motivation is profit.  I would submit that justice is a much more desirable objective by which to be motivated.

There are a few isolated crime labs and police agencies that have been registered to the international quality standard ISO9000, for example the Houston Police Department.  This is a very big deal, but it doesn’t solve systemic problems.  ISO only requires that you document what you currently do, and then ensure you do it that way every time.  A different process is required to fix problems.  Please see the previous WCB post on applying the industrial problem-solving process of Six Sigma here.

2)  There is an almost total lack of accountability or consequences on the part of the agents of the justice system when they don’t follow the rules, breach ethics, commit outright fraud, or just bungle the job; even though well-intended.  This includes lawyers, prosecutors, judges, police, medical examiners, and experts.  With no accountability and no consequences, there is no motivation to change behavior.

3)  Politics.  One would hope that the justice system would exist in a world of logic and reason and facts.  Part of it does, but the part that’s required to implement change exists in the surreal world of politics.

There have been legislative advances made, like Ohio SB77, which sets a new standard for other states to follow in bringing improvements to their criminal justice system, but SB77 was a long and agonizing struggle, and there is so very far to go.

4)  Total absence of public awareness.  My judgement would be that 99.9% of the public (aka: the electorate) is clueless about the things that actually go on in the justice system.  When I talk to people about my innocence work experiences, they are astounded.  It’s rare that I even find someone who has heard of the Innocence Project.  People just assume that the justice system always “gets it right.”  The media has been doing a pretty good job in recent years highlighting some of the more egregious wrongful convictions, but these are viewed by the public as “one off” anomalies, and not symptomatic of systemic issues.  There needs to be a much higher level of public awareness about the pervasiveness of the problems, which would result in many more people who are knowledgable enough and care enough to create and support movements for system reform.

So, in conclusion – finally – one thing is for sure – we can wail and moan and wring our hands all we want, but it’s an absolute truism that, “Only actions effect outcomes.”  What we need is what the military calls “actionable intelligence” (DATA), and then we need people – citizens, legislators, lawyers, prosecutors, judges – to realize and understand the root cause of the problems, and then step up and take action.  It’s a monumental task.  I recently commented to a colleague that I often feel like we’re in a canoe with a paddle trying to turn an aircraft carrier.  Maybe we can one day upgrade to a rowboat with an outboard motor.  But in the meantime, the Innocence Projects and other concerned and caring people, will need to keep working their hearts out treating the symptoms, and hoping some day we can cure the disease.