New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

15 responses to “New Scholarship Spotlight: In Defense of American Criminal Justice

  1. “some convictions of innocents is part of a necessary trade-off”. Shameful. Not with our daughter or anyone else’s loved one used as a “pawn” for America’s self-destructive shredding machine! This demands a public outcry.

  2. This guy is a federal appeals court judge?! Frightening – positively frightening.
    He clearly – clearly – does not understand the depth of the issue and ALL of its many root causes.
    I am staggered … and depressed.

    • Phil, I am staggered and depressed as well. For over a decade, having our once wonderful lives and family torn apart, and good name shredded in this dysfunctional system dominated for decades by people like this judge, truly sickens me. This (elitist) judge confirms the depths of how truly broken the justice system is.

      We can see clearly, after years of study and research, how our daughter was a political pawn in the witch-hunt of the day in Maricopa County, whose life and her young daughter’s life were an “easy” target, disposable mother and child, and a “practice” target for the Scottsdale police SWAT team.

      The abuse of power, corruption and unnecessary deaths that have taken place in Arizona since 2004 are also staggering. The silence is deafening. Ignoring the growing crisis by the elected officials and top prosecutors, who write there are no wrongful convictions or Brady violations to the Arizona Supreme Court judges (Rule No. R-11-0033 ER 3.8) raises questions about their credibility and bodes poorly for the justice system and the people.

  3. While arguing that cases should be resolved property on the front end (no argument there), he admits to the huge disparity between the government’s resources to attack versus the average person’s ability to defend. He fails to acknowledge that many of the state court judges are actually former prosecutors, perhaps out of the same office that is now arguing before him, and in the heat of battle, many of those judges forget that they took an oath to defend the Constitution. His argument seems to be that, “well, just because you got a shitty lawyer and a politician judge, you still got a fair trial, and that is all the Constitution guarantees.” This is an ivory tower view at best and extremely dangerous at worst. They don’t make federal judges the way they used to, that part is for sure, it’s now all about this pragmatic dogshit, which is simply judgespeak for ” let me provide a results-oriented outcome. To paraphrase the famous comment about the loss of privacy, justice is dead in America, get over it..

    • Earl, Your comment is spot-on! Yes, most of the judges Maricopa County Superior Court and the state of Arizona are former prosecutors. None seem to be educated due process, or “presumption of innocence”. The defendant in Arizona must prove their innocence in the criminal court.

      The Appeals court “rubber-stamps” denied without even reading the filing, after languishing in the courts for years, calls in to question the Appeals process, operating as an empty “shell”, while enriching the criminal justice system and all those who profit from it, financially and politically. Yes those same lawyers, more up the ladder during the appeals where a defendant will face them along the way. At Sentencing the judge said, you know you can appeal and do a PCR. Then face that same judge after your PCR is filed. How is that supposed to work when it’s simply stamped “denied”. How does the truth get out? How can they even say there is an Appeals process?

  4. “some convictions of innocents is part of a necessary trade-off” Used to be jurists, even rightwingers, gave Blackstone at least lip service.

  5. Calling wrongful convictions part of a necessary trade-off sounds like a warped interpretation of human trafficking. The judge’s mindset is careless and negligent, and those are euphemisms!

  6. So what’s the scholarship? He’s just rehashing arguments without resolving them. It’s essentially a defense by authority.

  7. This post has had 1,200 view in four days.
    Hopefully these readers will ultimately take action to help move justice system reform forward – it has a very, very long way to go.

  8. Phil, Thank you for your input on this truly frightening opinion.

  9. I am sure if this federal judge was part of a “necessary trade off” or one of his children he would be changing his tune. My son is setting in prison right now innocent of a crime that our justice system said that he committed without a shred of evidence and I believe with all of my heart that he was a trade off for a real criminal to be let off the hook

  10. anon Illinoisan

    Illinois prisoner Paul Modrowski, wrongly convicted, has a blog:

  11. Judge Wilkinson, wrote majority opinion in Hamdi case. Also, chilling. This impacts all. Are we now being treated like “terrorists” as we face the courts?

    Wikipedia: Federal judgeship
    “On January 30, 1984, after a brief return to the University of Virginia School of Law, Wilkinson was nominated to the Fourth Circuit by Ronald Reagan. Wilkinson was confirmed by the United States Senate on August 9, 1984 by a vote of 58-39.
    From 1996-2003, he served as chief judge on that court. In 2003, Wilkinson wrote the majority opinion upholding the right of the United States government to detain Yaser Esam Hamdi indefinitely without access to counsel or a court. Hamdi was a U.S. citizen captured during the U.S. invasion of Afghanistan. The decision was overturned by the Supreme Court of the United States.”

  12. Benjamin Franklin originally stated “It’s better to let 100 criminals go free than to convict one innocent man.”

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