How Nightmare Prosecutors Pervert American Justice

From Salon.com:

By HEATHER DIGBY PARTON

Yesterday, historian Rick Perlstein wrote an important piece about the Nixon pardon, which he shows was the true beginning of the political culture that holds that business elites and government actors cannot be held accountable for corruption and malfeasance because it will “destabilize” the system. From pardons of presidents to too-big-to-fail banks to torturers getting the benefit of “not looking in the rearview mirror,” it’s hard to come up with an example of elite, institutional players having to face the music.

But one of the more confounding aspects of this unaccountable culture of ours is the one that says the legal system has no responsibility to right its own wrongs or even admit to a lack of perfection even when it’s obvious they have made a grievous error (or broke the law). Yesterday I wrote about Justice Antonin Scalia’s rather shocking opinion that the Constitution provides no avenue for an innocent person wrongfully condemned to be released if all the proper i’s were dotted and the t’s crossed.  That strikes me as a perverted definition of justice. But it goes even deeper than that.

The New York Times profiled the hard-charging prosecutor known as the United States’ “Deadliest DA” who tried the case of the two men who were exonerated in North Carolina last week after having been imprisoned for over 30 years for a murder they did not commit. He’s quite a guy, winning more than 40 death penalty cases over 20 years, an achievement that got him into the Guinness World Records book.

He’s 79 now and still punching.  When told that his successor (a distant cousin) calls him a bully, his response was this: “Well, let’s say, if I was a bully, he is a pussy. How about that?” I think Johnson Britt has been hanging around too much with the wine and cheese crowd. So much for the dispassionate dispensation of the rule of law.

And despite the clear and overwhelming evidence that the two men who were released on DNA evidence along with a never processed fingerprint that implicated a known rapist in the crime, this fine representative of the people had this to say, “I thought the D.A. just threw up his hands and capitulated, and the judge didn’t have any choice but to do what he did. No question about it, absolutely they are guilty.” No, absolutely, they are not.

This attitude is pervasive among many prosecutors who all over the country pull out every stop available to them to keep DNA evidence from being tested and are unwilling to release wrongly convicted prisoners despite proof of their innocence. They refuse to admit they were wrong.

This piece by Sue Russell from a few years back examined why that is:

“The problem we face,” says social psychologist Carol Tavris, “is not from bad people covering up their mistakes and not wanting to face the truth. It’s from good people who deny the evidence in order to preserve their belief that they’re good people.”

Anthony Greenwald, a psychology professor at the University of Washington, says it’s natural for most of us to see ourselves in the most favorable light possible; to picture ourselves as more heroic or good or honorable than we are. For some, accepting that they may have contributed to an injustice would be such a massive blow to their perception of themselves that it is simply intolerable to countenance. So they don’t.

“People perceive themselves readily as the origin of good effects and reluctantly as the origin of ill effects,” says Greenwald. “I don’t think there’s anything special in thinking that this applies to people who work in law enforcement. The only thing one needs to assume is that they, too, are human – like the subjects in all the research that demonstrates the phenomena.”

Of course, law enforcement and prosecutors are human. They make mistakes. But too often representatives of the legal system, particularly as it’s interpreted by hardcore law-and-order types like Justice Scalia, believe that the state cannot err if it follows the rules, regardless of  a single person’s “actual innocence.” Looking in the rearview mirror for truth will only destabilize the system and create a lack of confidence in the state’s ability to mete out justice. This isn’t about being human — it’s about being inhuman.

The lesson in all this is that the state cannot police itself when it comes to prosecutorial or judicial error or misconduct.  Every incentive in the system calls for them to cover up their mistakes in order to maintain the illusion of infallibility (and their individual human belief in their own righteousness).

There is some good news on this front.  The ability to test DNA is changing everything and the legal culture that has been fighting against reevaluating old evidence is breaking down. New science is questioning the use of confessions and eyewitness testimony and new procedures are being put in place after some truly horrendous crime lab errors were uncovered. Conviction integrity units and pre-trial reliability hearings are becoming more common, and outside groups like the Innocence Project and state commissions like the one that finally freed the two wrongly convicted men in North Carolina are making a difference. So there is progress.

The question is whether the wider culture of unaccountable leadership will continue to prevail.  So far, there have been virtually no repercussions for acts over the past decade that devastated the economy and created the morass we now see in the Middle East.  There is little appetite for revisiting the errors of omission and commission that were perpetrated by the government to both create and then exacerbate those crises. We seem to have settled on the idea that confronting our defects and admitting our mistakes will cause the whole house of cards to come tumbling down.  One cannot help noticing that all these people who refuse to deal with the truth seem to have very little faith in the American system — and the American people.

You’d think a country that fetishizes the concept of freedom and allegedly worships the Bible would take John 8:32 a little bit more seriously: And ye shall know the truth, and the truth shall make you free.