Criminal Justice

Can the Criminal Justice System Be Fixed? The Jury's Still Out.

Under the law, prosecutors are supposed to pursue justice and not only seek convictions.


My latest experience with jury duty highlighted some of the well-known flaws in how our system determines an accused person's guilt or innocence. I was close to being impaneled when the judge asked whether any of us had previously dealt with district attorneys. I'm perfectly willing to serve on a jury, but answered honestly despite knowing the likely result.

As a newspaper writer, your honor, I've interviewed prosecutors when covering D.A. scandals and police-misconduct cases, I said. Within moments, the prosecutor announced that Mr. Greenhut was no longer needed. As I walked out, I turned to him and said, "Good call." People chuckled. I found it less funny that most of the potential jurors that seemed thoughtful and independent-minded also were rejected for one reason or another.

In reality, the most ominous problems in our justice system take place long before anyone is being questioned for jury service. It starts with the arrest, of course. Some readers have wondered why I'm so agitated about police-abuse allegations. The answer is simple. The state has immense power, so if an officer plants evidence or offers misleading testimony, it can deprive innocent people of their freedom.

A new California law mandating the release of police misconduct records has led to some eye-opening news reports. My concern isn't with a few bad apples, which is the bane of every profession. The problem is with a system that protects its own by covering up information and allowing those apples to ruin the whole barrel. That system is tilted heavily in favor of the government.

The process is the punishment. If you're accused of a crime, you might eventually be cleared of wrongdoing—but after you've mortgaged the house to pay legal bills, had your career destroyed in the process, and spent months or maybe years living with the stress of prosecution. And we've seen plenty of recent examples of wrongly convicted people who have been released after many years in prison. How do they get their lives back?

Last week, Orange County District Attorney Todd Spitzer said he is dropping all charges against a Newport Beach surgeon and his girlfriend who in 2018 were accused by the former district attorney of drugging multiple women and luring them back to the surgeon's apartment to sexually assault them. They pleaded not guilty and flatly deny that any nonconsensual sexual encounters took place.

"Because the public and the media were led to believe that there was video evidence which confirmed thousands of victims, it was misreported worldwide," Spitzer said. "There were two individuals who were mistreated by the system, and they didn't deserve it, because of a re-election." Spitzer had alleged in a letter to the state attorney general last year that the case was "rife with prosecutorial misconduct."

This is an amazing turn of events that perhaps will focus some attention on the behavior of prosecutors and—most important—the way the system is stacked against defendants.

As the criminal justice reform movement has gained steam in recent years (in a remarkably bipartisan fashion), the public has learned that just because people plead guilty to crimes doesn't necessarily mean that they are guilty of those particular crimes. That, to me, spotlights the depth of the problem. The accused could face decades in prison if they lose in court. Who would want their life hanging in the balance of the jury system that I referenced above?

"In some cases, the sentencing difference between accepting a plea and losing at trial can be a matter of decades," wrote Jeffrey Stein, a public defender, in a 2018 Washington Post column. "It's no wonder 95 percent of all defendants accept plea offers" and that "15 percent of all exonerees…originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes."

In a 2015 article for the Georgetown Law Review, former 9th Circuit Court of Appeals Justice Alex Kozinski (a conservative Reagan appointee on that notoriously liberal court) listed 12 myths about the criminal justice system. One is that prosecutors play fair. Prosecutors often "pile on charges so as to make it exceedingly risky for a defendant to go to trial," and they have "countless ways" to "prejudice the fact-finding process and undermine a defendant's right to a fair trial."

Under the law, prosecutors are supposed to pursue justice and not only seek convictions. But consider a recent case in Mississippi where a man who was held in jail on a misdemeanor charge asked a guard to charge his cellphone so he could text his whereabouts to his wife. He was slapped with a 12-year sentence for possessing a cellphone in a correctional facility. Is that justice?

I'll look at reforms in a future column, but suffice it to say that the problems go far deeper than police conduct and a dumbed-down system for selecting jurors.

This column was first published in the Orange County Register.