Comment on the Nature and State of the (US) Justice System

While writing the latest post about Jack McCullough‘s exoneration, and while reading Courtney Bisbee‘s latest filing with the US District Court for Arizona, I got to reflecting on my experiences with the justice system over the past eight years, and I thought I would share some of my (unvarnished) observations. Clearly, this will be very editorial. It will probably help to understand my comments to know that I am not an attorney. I am an engineer by training, and that’s what I did for my entire working career – until I started doing innocence work pro bono. So I see the justice system with the naivete’ of someone who is an “outsider” and is not a functionary of the system; but I do see the system as someone who has spent his entire life founded in objective truth and logic and fact. Again, this article will be editorial in nature, and represents my views and only my views. It will also be pretty bleak; however, I see no viable path to fixing the monster we’ve created over the course of multiple decades of politics and the frailties of human nature. This has been bottled up inside me for some time, and the cork has finally popped. And just for reference, my definition of the justice system includes the law, legislators, judges, prosecutors, defense attorneys, and the police.

The justice system is supposed to be about facts, logic, truth, and reason; and seeing that “justice” is done. But my observation has been that the justice system is largely revenge-based, and when people can use the justice system to satisfy the unfortunate, dismal human craving for revenge, they will. When people say “I want justice,” what they’re really saying is “I want revenge” – based upon their personal  (and largely biased) belief about what they have convinced themselves happened, regardless of the actual evidence. And once that craving for revenge has been “satisfied,” people will spare no effort or energy to preserve it; even though the person being punished turns out to be demonstrably innocent. I think it would be more accurate to call the system the “punishment system” or the “revenge system” rather than the “justice system.” It’s no secret that prosecutors will play to the emotions and biases of a jury, turning the courtroom into little more than “theater;” and they do it because … it works, sad to say. It goes way beyond facts, logic, and truth; it’s about pushing the “emotional buttons” of the jury, because they want to win. The political and adversarial nature of the justice system places a high premium on “winning.” The justice system lacks the process protections necessary to insulate itself from the foibles, frailties, and shortcomings of human nature, particularly in a system which is primarily politically driven – like the justice system. The business world figured this out long ago. If you want to make decisions based upon logic, reason, and truth, you have to eliminate the factors of human nature that contaminate the logical decision making process. These regrettable factors of human nature include pride, ego, jealousy, ambition, hate, bigotry, bias, love, lust, greed, arrogance, and on and on. They’re always there – it’s just part of the human condition, and nobody – not police, not prosecutors, not judges, not juries, not legislators – is immune. Probably the most pernicious of human frailties and bias that influences the justice system is politics. Prosecutors, judges, coroners, sheriffs, and legislators are all elected political officials, and this places dangerous incentives on their performance of their jobs, because “Job 1” for any elected politician is to get re-elected; not serve justice. Politics has putrified the justice system – and you can quote me on that. And the justice system certainly has no processes to insulate it from politics.

Now please don’t confuse “process” with “procedure.” For more on process, please see our previous post about Six Sigma and the law here. Process is figuring out the best way to do something, and then making sure you do it that way every time, and also eliminating the vagaries and variability of human bias. And even more importantly, process is recognizing when you’ve done something wrong, and then using that information to change the way you do things in the future so you don’t do it wrong again. The justice system has lots and lots of “procedures,” which are really just rules for what you have to do and when, and in many cases they have nothing to do with the facts or truth. Legal proceedings can be subject to all manner of “procedural bars;” meaning you didn’t do something according to the rules, so your motion or pleading gets dismissed, and you’re just out of luck – even though you’re actually innocent. Or, procedural rules may be used to keep relevant evidence from being presented at trial. Prosecutors will commonly use “procedural” issues to fight against overturning a conviction, regardless of whether or not the defendant is innocent. Just as an example – in an attempt to overturn a wrongful conviction, new exculpatory evidence, which could prove the defendant innocent, can be eliminated from consideration if the judge rules that it was “discoverable” at time of original trial. How ’bout that? I’ve personally seen this happen.

Not only is the legal/justice system vulnerable to all manner of human frailty, but when the system gets something wrong, not only will it generally refuse to recognize and admit that, but there is also no systemic mechanism to effect changes to make sure that it doesn’t happen again. It’s just …. on to the next wrongful conviction. The same kinds of errors keep happening over and over.  In business, at the end of a “project,” it’s common to conduct a formal “post mortem” review for the project, with the objective of determining what should have been done differently, and putting plans into action to make the necessary changes. At the end of a trial, who sits down and says, “OK, what should have been done differently?” – nobody. And on top of that, there is no comprehensive documentation of the deficiencies that could be amalgamated into data to actually change the body of the law so things like wrongful convictions happen less and less. Do I have any hope or expectation that any of this can or will change for the better? Not with the current political nature of the system. The “law” never gets smaller, simpler, or easier. It only gets bigger, more intricate, more complex, and more arcane; with the result that the “law” has become an end unto itself with greater emphasis on procedure and perpetuating the system than on getting it right. It’s no wonder that even the lawyers can get it wrong, which they do.

Just three examples of how the system perpetuates its misdeeds. First, when a prosecutor withholds exculpatory evidence (a Brady violation) to gain a conviction, what happens to the prosecutor when the defendant is later found to be actually innocent? NOTHING! When the police coerce a false confession out of someone to gain a conviction, what happens to the police when the defendant is later found to be actually innocent? NOTHING! Or how about when a prosecutor pays a snitch for testimony to get a conviction, and the defendant is later found actually innocent. What happens to the prosecutor or the snitch? NOTHING! The agents of the system suffer no consequence for what should be classified as criminal acts. It’s no wonder the system never gets any better.

I do have fervent hope, however, that the National Registry of Exonerations will one day be able to provide sufficient hard data necessary to get legislators to actually fix some of what’s wrong; but I have no hope that will be in my lifetime. With the justice system designed to make overturning wrongful convictions so incredibly difficult, most wrongful convictions don’t get overturned. Consequently, the wrongful convictions that have happened, but don’t get overturned, are not included in the data. This is why the National Registry of Exonerations represents only the tip of the iceberg of wrongful convictions.

After a few years of doing innocence work, and hoping that it might somehow help fix the justice system, I came to characterize it as like being in a canoe with a paddle trying to turn an aircraft carrier. But over the years, my opinion of that has changed. We have no paddle. There is no canoe. We’re just naked in the water. Over the past eight years, I have had the honor and the pleasure to work with many wonderful, smart, dedicated people who work diligently and doggedly for years on case after case after case to right wrongful convictions. It’s difficult, tedious, heart-breaking work. Every once in a while they will succeed, but mostly they don’t, because they’re working against a system that has been designed to prevent overturning a (wrongful) conviction. But when they do succeed, and expose a wrongful conviction, does that trigger any change in the system or expose unethical or misbehaving officials to sanctions? Of course not. The system is actually designed to deflect that, and the system will fight “tooth & nail” to keep from having to acknowledge that it made a mistake. That resistance to acknowledging error is supposedly about what the system calls “finality” (which it treasures), but I suggest it’s mostly about saving face.

The justice system actually works quite well, IF you define “well” as expediently convicting people and putting them in prison – almost always by coerced plea agreement. The issues with the current system are accuracy of convictions and fairness in sentencing. Did the system get the conviction right, and once convicted, does the sentence really reflect the nature and severity of the crime? I’m afraid both these questions leave the system wanting. Because I’ve been so recently involved in it, and written about it, I once again raise the example of the Courtney Bisbee case. Here is a woman who was wrongfully convicted of improperly “touching” a teen (through clothing), and was sentenced to 11 years. Both Debra LaFave (Florida) and Mary Kay Letourneau (Washington) received much less harsh punishment than that, and they both admitted to having actual sex, multiple times, with a teen. How screwed up can the system get? And this is just one example.

The evidence of the failures of the justice system abounds, and you can read about a lot of it right here on this blog. Or just take a look at the National Registry of Exonerations, which by the way, represents just the tiniest tip of the iceberg in terms of the actual number of wrongful convictions. You have to ask yourself – how can this kind of stuff just continue to go on for so long without doing something to make it better? Will the system ever be perfect? No, of course not; but it could be orders of magnitude more accurate, correct, and just than it is. If only we could push past the politics and the myriad shortcomings of human nature to put systems and processes in place to incrementally and continuously correct the errors when they happen. The first step to a solution is admitting you have a problem, but there are only isolated members of the system who seem to truly grasp this. Plus, the current system has become so monstrous, and there are so many highly influential and powerful people so deeply invested in it, I would give substantive, meaningful change the proverbial “snowball’s chance.”

If the justice system is supposed to be about fact, logic, truth, reason, and justice, I contend that it is fundamentally flawed – by design. As long as politics and the frailties of human nature reign supreme in the justice system, it will continue to systematically produce wrongful convictions. The changes that need to happen are fundamental and sweeping, but there’s a classic argument within the legal community against fundamental change – that is, it would “open the floodgates of litigation,” and overwhelm the courts. So …. does that mean we should keep putting innocent people in prison, because it would be inconvenient to fix the real problems? I say, “Open up those flood gates.”

So, what’s the bottom line? I’m afraid we’re stuck with it. We can continue to tinker around with politically driven legislation, and beat our brains out trying to rectify one wrongful conviction at a time; but I have absolutely no hope that what really needs to happen will ever happen. In fact, my scanning of the legislative environment indicates to me that things are actually going in the wrong direction.  Just for example, sex offender laws continue to get ever more bizarrely unfair and draconian (the International Megan’s Law is just one example); the Supreme Court over the last 20 years has gutted habeas corpus; the Antiterrorism and Effective Death Penalty Act (AEDPA) limits rights of appeal; and I see no possibility that the political nature of the justice system will ever be scrapped. And on and on.

You are perfectly welcome to call me a “nay sayer”or a prophet of doom & gloom, or to say I’m being way too negative; but, as I’ve said before, I only report what I observe.     Sorry.



12 responses to “Comment on the Nature and State of the (US) Justice System

  1. Dear Mr Locke, thank you for your work exposing this necessary subject. There are many areas of wrongfully conviction. Some of them do not include being imprisoned. But are life destroying the same. One area that is rampant with abuse is the Az Board of Nursing. There is no over sight, no checks and balances, nurses being railroaded by a string of corrupt individuals. The Ag , The Auditor generals office who oversees them, and only audits ‘certain files” , the Board of Nursing, the Administrative law court, no matter how much you prove your case they rule against you. Every time. The appeals court has a judge to short stop and side with the state, in fact he has never ruled against the state. The Administrative law court, judges, rule for the AAG office 100%of the time, file false year end reports with the legislature. It is rigged system. When these individuals face jail / prison terms for not doing their job is only when it ends. As officers of the court they have a duty to report when a case has no merit, but instead they try manufacturing a case, and committing fraud upon the court time and again. It needs to be looked at , and exposed.
    thank you for doing your part, and exposing these corrupt , abuse of power agencies.

  2. Unfortunately, this will be used by nonsensical supporters of Jodi Arias who believe Arizona got it wring when they convicted her of murdering Travis Alexander.

  3. IN my case alone, I worked at a hospital that owned their own housing. A stalker/harrasser wouldnt stop , the hospital, their security did nothing. Over 6 months later after I prevailed in small claims court against him for loss of wages ending bonus , it was at that time the hospital put in a complaint to the Board of Nursing. “she called the police on one of our residents ” The Board of Nursing went on a witch hunt , which included contacting my 96 year old mother in Florida. A 4 day trial, the presiding judge was “not available to render a ruling, it was passed on to a second Judge she did not sign it either > A third judge was given the case, he signed it . The three judges playing musical chairs while the last two were never in the court room, I have never met. they did not see my witnesses, or rule on the sustain, objections, who could testify by phone.etc. The Board of Nursing “judge shopping ” to get the verdict they want.
    Never was nursing work involved.
    The members of the BON, were on mgt staff at this particular hospital, and did not recuse themselves from the vote.
    I had affadavits that proved the risk mgr lied , she told the BON she was a DEA agent, false! and that the Chief of Police was ‘looking into turning me into the prosecutor” . When a top Private Investigator got a statement from this COP, he said he never heard of me ! The 3rd judge marked her “credible”! (there’s more) , the other “witness ‘ was friends with the blowhard , I presented her criminal record from California , and Arizona, right after that she was fired. Her application with this hospital contained many lies. It is sickening, that they got away with this and voted to put me on probation. I am in the appeals court, no one will hire you on probation. They are trying to bleed me dry for funds, Put me out of work, they are not suppose to act on anything while in appeals but voted to suspend. Another trial , I objected to this 3rd judge being the judge, ignored, I am appealing his decision so of course he is biased and he signed again to revoke my license. The AZBON meeting 1pm (available on stream on their site ). It has already been decided , they have way too much power and allowed to do what ever they want legal or not. This agency needs to be investigated . thank you.

  4. I filed a federal civil rights pro se complaint on Feb.20, 2015 in Az….Ninth circuit # is 15-17308. In fact I referred to Courtney’s case in my litgation with Maricopa County id. policies et al. that violate our civil rights. In 2013 I ended up in dependency court . I had my life long teaching licenses threatened from the first hearing forward ; was not allowed to present evidence; was lied about in every report and had reports and meetings fabricated. Before this started , I went to Mesa and County DV court. What a joke and it still is. In DV court Judge Brame yelled at me before reading anything. If you want abuse , go to her court. The woman is nut job along with most employees in the county venue. The few good ones are having to help you in secret. It is like the VA only the whole government here.
    Your court papers are withheld from you,; you are bullied and threatened in front of your own children….read my orginal civil complaint ….I was afraid to fo to my last hearing.
    I discovered this is common practice. I witneesed first hand armed guards pulling a 100 lb. woman into court. Another parent was locked out of her own hearing with an armed guard. I recorded that. I attached 12 cases to mine in support of my claims against Maricopa County. I work with homeless so I have a courtroom full of riveting stories and fruadulent paperwork used to detain children for federal funding.
    I do not have much time for I need to file something in NINTH for their destruction of my evidence….the emails statong my daughter will be detained for federsl funds..Title 4-E and Asfa although the prosceutor months into it had never investigated it. She threatens my attorney to not show up at my hearing. She tells me it was canceled. I go and guess wasn’t. The judges turn a blind eye to all of this . It is a factory and kids are big money for the state and County.
    In Az Federal , In August 2015 , my docket was altered and Judge Wake admitted it. He then dismisseses Az Bar and County on a document that did jot exist. He then orders CPS and Mesa to repond to fruad.
    The clerks in Az withhold my Motion for relief, blurr and destroy my evidnce , ..admittedly alter the docket…Chief Az Judge Collins write me months later that he could not do anything as Wake rules n his own recusal. I file judicial complaints and Catterson of Ninth hides the third which includes Judge Wake’s conspiracy with Az Bar and infamous Maricopa County. I was so stressed I now have shingles plus my daughter was very sick and still is from being under state care.
    I write Molly Dwyer of Ninth asking whom takes complaints about Clerks and in retaliation a month and a half later she enters that on the docket, Jan.20, 2016 as an amended notice of appeal and directs Az Federal to enter it as if I filed one. I did not.
    When I state there was never a docket entry on Dec. 7 ,2015, Az alters that docket. My motion for appointment of counsel has sat there for four months as well as my EMERGENCY motions for relief . Repeated docket deception …. Ninth puts on the docket I didnt file a brief. I did although the case is pending. In fact , I have no civil complaint to appeal because an opposition is not an amended complaint but defendants were dismiised on it and the fourth civil complaint was struck immediately and never served. So it goes…the justice system hates women and inparticualr justice . I am now racking my brains out as to get a change of venue for the coninuning spoliation of evidence, docket deception and xonspiracy with Maricopa County. I have pissed Catterso off by filing all the crap she did like hide evidence and now she is Circuit Executive. I have no way to reach a judge because all mail goes through the clerks or to secretaries whom write back letter that say Judge can not do anything mispelled.
    I call Ninth and complain and that is another joke.
    I believe we need to flood the court woth cases since the dept. of justice does nothing nor the FBI . In fact , everyone passes the buck. You all are doing a great job. What they did to Courtney and Milke is exactly what Az thinks of women, the vulnerable and children. Ninth is the bodyguard for Maricopa County. I cited cases where they were clearly liable yet escaped. Judge Wake stated that no way could I prove any claims against Maricopa County. I must have nailed it or they would not have had to bully me out of court with fruad and conspiracy. I am tired and disgusted but seeing my daughter sick, my grandchildren in danger and knowing firsthand of parents whom had had their children kidnapped by the state and abused u derthem, I remain pissed off. Do I want revenge? I want change …I want justice and now I want damages because the stress feom the Fruad has cut ten years off of my life. I am a hopeful person. I am always hopeful!

  5. Pingback: Police and Prosecutors are Sometimes a Bad Alliance – ElephantTail

  6. Thank you. I believe this needs to be said. Our “justice system” handles guilty people quite well. It has become a streamlined process to funnel the guilty. The rights of the innocent, however, have been eroding. Innocent people throw a monkey-wrench into the well-oiled machine.

    I have scores of people contact me regarding alleged “shaken baby” cases, and it often feels like they are coming to me and saying, “I’ve been diagnosed with cancer.” I point them to resources that I believe can help them win the fight against a terrible “disease” for which the “treatments” have a low probability of success. I wish them well, but protect myself from the strong possibility that they will succumb. And then I do it again. And again. And again. In a system which corrects mistakes, we would not have this.

  7. No apologies, Phil, for your insightful and expert explanation of our “politically driven justice system;” and, how plausible “accuracy of convictions and fairness in sentencing” can be so easily perverted by “…a system that is designed to prevent overturning a wrongful conviction.”
    Thank you, again, for ‘telling-it-like-it-is.’ Don’t ever stop telling us the truths we need to hear!

  8. Pingback: Justice System Procedure Frequently Ignores Innocence | Wrongful Convictions Blog

  9. zelma cochran

    oh so true and sad !

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