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.

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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.

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  1. A good place to start would be to reduce damn near every penalty under law by 3/4 percent excepting a few offenses and make states change their laws by withholding federal money.

    1. And yet you defended the 7-9 years for Stone for lying about a legal act…

      1. Threatening people with death is NOT a legal act! I know that you claim that “words cannot be crimes”, but you are lying like usual! (For the record, I think the sentence was, indeed, too harsh). But… STOP LYING! It hurts your credibility!

        https://www.nytimes.com/2020/02/14/opinion/roger-stone-randy-credico.html
        Opinion
        The Right’s Big Lie About Roger Stone
        Trump allies are saying Stone didn’t really threaten a witness. They’re wrong.

        1. “‘Trump allies are saying Stone didn’t really threaten a witness. They’re wrong.””

          How would you know they are wrong?

          1. Ask the NY Times (see citation). I for one, would trust them a LOT more than I would trust that certified liar, JesseAZ…

            From the same source…

            “On Thursday, in an authoritarian escalation, Trump tweeted an attack on the jury forewoman in the Stone case, singling out a private citizen for abuse because she’d dared to find one of his henchman guilty.”

            So this adds, now, to Trump’s LONG history of trying to intimidate judges, witnesses, and now a juror!

            “Fix” the justice system? Start at the top!

            1. So you don’t really know and you want to pass the buck to the NY Times?

              1. Have you ever personally seen the Indian Ocean? HOW do you know that it exists? Or is the existence of Indian Ocean a big fat giant LIE?

                Have you personally witnessed the moon landings? Seen the roundness of the Earth?

                If you disbelieve ALL that you have NOT seen personally… If you disbelieve ALL that does NOT perfectly fit your preconceived notions… I think the shrinks call that “paranoia”, “confirmation bias”, and, when totally frustrated and less clinical-minded… “Bat-shit crazy”!

                1. All of which shows that the penalties must be increased, wherever possible and to the extent possible, for certain crimes that have not received quite as much attention as they need, including in particular illegal “satire.” Indeed, we here at NYU believe that the major fix required for the criminal “justice” system is a reallocation of sources towards the global fight to protect the reputations of prominent members of the community who have been confronted, on a nearly daily basis, with “satirical” accusations that are clearly intolerable and unreconcilable with today’s academic culture. This is why we put a good deal of effort not only into alerting, but into assisting prosecutors during the nine-year-long litigation of our nation’s leading criminal “parody” case. See the documentation at:

                  https://raphaelgolbtrial.wordpress.com/

    2. You also ignore that federal abuse is just as bad if not worse than state abuses.

      1. Federal abuse? The ten charges brought against the Weavers in the Ruby Ridge affair.
        2 tossed by the judge as not true after hearing only prosecution witnesses.
        6 acquitted by the jury based again after hearing only prosecution witnesses*
        1 conviction by the jury tossed by the judge (crimes on pretrial release) because all eight criminal act charges had been tossed or acquitted.
        Only 1 conviction of 10 charges left standing at the conviction stage: failure to appear in court on either date Randy Weaver had been given 19 Feb or 20 Mar 1991 (the trial had been moved to 20 Feb).

        * The defense attorneys declared that the gov’t had not proven its case and that they did not have to present a defense phase.

    3. 3/4 percent? 0.75%? 3/400 fraction? Is the rest of your knowledge and understanding is on a par with 3/4 percent?

  2. It would have to get fixed by lawyers or an educated populace of jurists who thought outside the box(ie jury nullification). So no it won’t ever be fixed as it serves to enrich and protect the people in the industry and fuck over everyone else. The people who designed the modern day law schools and way of thinking also designed the public schools so….

  3. “Is it justice?”. I would assume you don’t understand why prisons have strict rules. I guess we should just let prisoners have phones, alcohol and maybe weapons at their whim.

    1. “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?”

      https://www.nbcnews.com/news/us-news/mississippi-man-got-12-years-prison-possessing-cellphone-county-jail-n1117951

      The in-processing folks (guards) at the jail were too stupid (or lazy, or even mendacious, trying to set this “uppity black” guy up for the fall) to do their job right. They didn’t take his cell phone! The “uppity black” guy clearly didn’t know it was a 12-year-sentence kinda thing, to have a cell phone in jail. Do YOU call this “justice”?

      Prosecutors today (and fascists in the general public) seem to think “punishment = justice”… The more punishment, the more justice!

      Food for thought below, from various thinkers, over the many years…

      “Beware of all those in whom the urge to punish is strong.” – Friedrich Nietzsche
      “Mistrust all those in whom the desire to punish is imperative.” Johann Wolfgang von Goethe
      “Let he who is without sin, throw the first stone.” – Jesus
      “How can you say to your brother, ‘Let me take the speck out of your eye,’ while there is still a beam in your own eye? You hypocrite! First take the beam out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.” – Jesus

      1. I don’t know what happened with the cell phone, apparently neither do they. So calling those officers idiots or lazy is futile. You’d be amazed ways the ways prisoners can hide things . Considering the man had previous convictions for robbery, and lied about the cell phone when asked about it,(reading the article helps) ya I think he deserves punishment.

        1. He had an unauthorized cell phone for ? a few hours at most… He harmed no one by using that phone! Fine him for $1.23, or add 10 minutes to his jail term, sounds like “proportionate justice” (“let the punishment fit the crime”) to me.

          12 years of jail time??!?! Sounds like punishment dished out by perverted, sadistic NAZIs to me! NAZIs that have ZERO regard for the judicious use of my tax dollars, to boot!

          1. So you live in Mississippi?
            Either rules/laws matter or they don’t. Stop concern trolling.

            1. “Either rules/laws matter or they don’t.”

              How about, either “proportionate punishment” matters, or it does not!

              You tell us:

              ‘1) Inadvertently having a cell phone where Government Almighty has forbidden it… WHAT should be the punishment?

              ‘2) NOT DOING YOUR JOB as a jailor or guard… WHAT should be the punishment?

              Or is there one set of rules and laws for the peons, and a TOTALLY DIFFERENT one for the masters? (OK, I already know the answer here is “yes” for that one, but I would be quite curious to your answers to the 1st 2 questions…)

              1. 1. There was a range of punishment that could be given of which he didn’t receive the maximum. I’m assuming they considered his past and prescribed accordingly. You don’t like the punishment, go petition Mississippi corrections and get the laws changed.
                2. Not doing your job can come with consequences such as being fired, or even criminal charges themselves-trafficking with an inmate in indiana can be charged as a felony. If those officers slipped him the phone or didn’t confiscate it they should be punished. That doesn’t change the fact that the man shouldn’t have had the phone.

            2. And there’s the problem. No, rules don’t matter. Rules are designed to achieve outcomes and the outcomes matter.

              One of those outcomes is justice. When “the rules” get in the way of the desired outcome, then it’s the rule that needs to go.

              1. (Apologies for the malformed italics. Can we PLEASE have an ‘edit’ button?)

              2. And what do you think the desired outcome should be?

                1. Justice. Do you feel as if twelve years for having a phone is justice? In any way? Past convictions should have no bearing on the situation at hand. Once you’ve served your time, you should be free of the punishment, not have it follow you around and taint every portion of your life thereafter.

                  The only actions that should be watched for and punished are theft and violence. Doesn’t take that much effort to figure out. That cop could easily have just taken the cell phone and chided him for having it. I’d say that if he was literally ASKING THE COP TO CHARGE IT that maybe he was more guilty of being stupid than some criminal genius who snuck it in his ass so he could stab someone with it.

                  Fuck you.

            3. The purpose of the law is supposed to be justice.
              An unjust (or simply stupid) law is null and void.

              Either rules/laws matter or they don’t.

              There are lots of laws on the books that law enforcement and prosecutors do not enforce.

              I have been told that the 1924 Virginia Racial Integrity Act is still on the books, just not enforced following the 1967 Virginia v Loving decision (although I have seen claims the VA legislature repealed it in 1979). Chief enforcer of the Act, Plaecker, had my family on his 1942 and 1943 lists

              That is a law that does not matter.

              Tennessee had a Application for Permission to Purchase a Handgun law that required submitting an application to County Sheriff or Chief of Police who then had up fifteen days to conduct a records search and yea or nay the application. It was replaced with an instant background check of state records by the Dept of Safety; except, the application and 15 day wait verbiage is still on the books. Most county sheriffs and chiefs of police considered the old law (still on the books but not used) a waste of their time (80% of Tennesser criminals acquire weapons black market so burdening the law-abiding is a waste of resources).

              I was taught in Uniform Code of Military Justice class that obeying an order that violated the Constitution, military regulations, or the UCMJ was a crime, and mutiny against such an order could be justified. I considered Guy Gabaldon and Hugh Thompson to be war heroes.

              Either rules/laws matter or they don’t.

              Makes me want to go out and spit on the sidewalk.

              1. If this guy had a first time offender I question whether he would have been punished at all, but considering that he had a history of prior convictions, they decided not to let it go. And this isn’t a law that governs the everyday public citizen, only those who have broken that societal contract. I agree some laws should never exist in a libertarian society, but that’s not one we currently live in, and this isn’t a regulation that probably most libertarians would dissent from.

                1. Wouldn’t dissent from.

            4. “Either rules/laws matter or they don’t.”

              Ah, a “well the law is the law” guy. Priceless.

              You managed to be both off topic and and incorrect about the new topic you raised. In truth, there is no “laws matter or they don’t” thinking under our current injustice system.

              Some laws are enforced some of the time against some people. It’s called prosecutorial discretion and If you were to set out to design a system with less credibility than what we now have I doubt you could do much better. There is a reason people are increasingly loosing faith on our injustice system. You are exhibit A.

              Those in the ruling elite; the police-prosecutors-judges, politicians and the rich regularly get a free passes for major intentional transgressions of the law while those outside the elite receive harsh punishment for violating by mistake on entirely technical grounds as happened to the guy with the cell phone.

              Did you ever wonder why Hammurabi developed a legal code that involved an eye for an eye and a tooth for a tooth over 3 millennia ago? His code what not about punishing offenders, but about limiting the blood lust of people like yourself. You do not need to convince people that if someone takes your eye to take theirs in return. Revenge is cheap and easy, especially the least evolved among us. The purpose of the code was to restrain people like you who feel the need to respond to the equivalent of illegal parking with torturing the “perp” and killing off his entire family under the slogan “well we either have laws or we don’t.” because he took your parking space.

              Before you throw out some stupid trope about how dangerous a cell phone can be in a jail setting, that’s exactly why we have mistakenly given prosecutors and judges wide discretion with sentencing with very little oversight. As the judge pointed out during the appeal, they are expected to have the judgement to determine when an infraction like a cell phone is a stupid oversight and when it causes actual harm that would result in a longer sentence. In this case it’s clear no actual harm was done.

              That 12 years sentence is proof among the sane that prosecutors and judges lack the emotional and mental maturity needed to deal reasonable with the trust and discretion we have given them. It’s well past time we reign them in and provide the strong, direct oversight they so clearly need.

          2. But Stone deserved 7-9 yrs. Got it.

            Not principles. Only principals.

  4. We get this all the time doing re-models in older homes with tile bathrooms. The tile’s old and cracked and lumpy and looks like shit and they want to know if we can cover it over with sheet vinyl to make it look good. And we have to explain to them that no matter how well you maintain the tile by re-sealing and re-grouting, the house settles and the floor warps and the tile cracks and you’re sooner or later going to get water under the tile and the subfloor is going to rot. The reason your tile’s cracked and lumpy and looks like shit is because the subfloor is shot to hell and, no, we can’t just cover that mess over with sheet vinyl and make it look good. You’re going to have to do a complete tear-out and rebuild the bathroom floor because that shit’s been rotting out for years underneath where you never saw it. If you’re not afraid of getting a little dirty, the mole crickets and the spiders and a scorpion or two, and you’ve got a good, strong light, you can crawl under the house and see that the diagonal planking looks like wet cardboard and the joists are sagging and spongy and you’re going to wonder what the hell’s been holding the bathtub up in the air all this time. Every last little bit of it’s got to come out of there and all new wood has to go in if you’re going to fix it properly.

    1. And then after the thing’s been rebuilt, you’re going to have to regularly crawl back into that dark, dirty nasty crawlspace with a good, strong, bright light and inspect carefully for any incipient rot and get that shit fixed quick – or you can wait about 40 years and call somebody out and do the same damn thing all over again.

      1. Yes! A good analogy! For a HUGE part of the “justice” systems! To include property confiscations! Property confiscations (“We’re not punishing you, we’re just punishing your property”) has been a decades-long game of whack-a-mole! WHEN are we gonna fix it PROPERLY?!?!? So that it STAYS fixed?!?!

  5. What about a “do unto others” law whereby individual citizens would decide which level of penalty they would prefer to live by meaning if a person committed an offense against a person who choose the harsher level then that person would be subject to a harsher penalty but it would work both ways so if you wanted fire and brimstone that shit would fall back on you if you were ever convicted.

  6. Prosecutors often “pile on charges so as to make it exceedingly risky for a defendant to go to trial”

    Isn’t there supposed to be a legal principle that one overt illegal act should only result in one charge for that act? What ever happened to that? It seems like one act is more often said to violate half a dozen different laws, resulting in half a dozen different charges.

    1. Florida Prosecutor Angela Corey routinely overcharged defendants guilty of an offense worth maybe 3 years in jail, with trumped up charges of 20 years, to force them into a plea bargain for lesser jail time.

  7. The plea bargain system and concomitant overcharging are the biggest problems (aside from the over abundance of laws).
    But those are hard fixes, so the shallow minded will only focus on the symptoms and advocating for whatever makes them feel good

  8. Speaking of a broken justice system, here is a good read:

    https://www.nytimes.com/2020/02/14/opinion/roger-stone-randy-credico.html
    Opinion
    The Right’s Big Lie About Roger Stone
    Trump allies are saying Stone didn’t really threaten a witness. They’re wrong.

    out-take below:

    It’s perfectly legitimate to argue that the sentencing guidelines that the original prosecutors relied on in the Stone case are too harsh; America sends too many people to prison for too long. But Barr, in general, does not have a problem with draconian punishments for people who are not personal allies of the president. In August, he lambasted progressive prosecutors, saying they “spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the laws.” In Trump’s America, only a select class of criminals are shown magnanimity. As the former Peruvian president, Óscar Benavides, allegedly said, “For my friends, everything. For my enemies, the law.”

    1. Lol. For fuck sake the “victim” said he was never threatened by stone, that stone used that rhetoric regularly. For fuck sake, you believe I mocking someone up for a. ear decade for lying about a legal action. You’re a fucking moron.

      1. What the fuck phone.

        “Believe in locking someone up for a decade”

      2. Distortions (lies) like usual! The gangland boss? I don’t think that he PERSONALLY will hurt me… He will “merely” tell one of his flunkies to “off” me! So I want leniency for the gangland boss, so that I will NOT get “offed”! Because, as a peon, I don’t have the POTUS’s gang of palace guards to protect me!

        From the article I linked:

        Credico, the memo said, “asserts that he did not perceive a genuine threat from the defendant but rather stated that ‘I never in any way felt that Stone himself posed a direct physical threat to me or my dog.’”

        Note the wording: Stone himself. “I never thought Stone personally was going to do it himself,” Credico told me. Rather, he thought that one of Stone’s supporters might. “I look like the guy that’s gonna be the guy that’s gonna force Stone to talk to the feds and say everything that he knows on the president,” he said. “So I’m expendable at that point. That’s what I’m thinking.”

    2. As long as you ignore the written testimony of the “threatened” person that there was no feeling of threat at all, it was just Stone’s typical bullshit hyperbole.

  9. The system will never be fixed so long as judges, prosecutors and police are effectively beyond any accountability. No system will ever function properly if the people running it are not honest and committed to abiding by the rules. And cops, judges, and prosecutors will always break the rules unless there is some danger of them being held accountable for doing so.

    Sure, not every cop, judge or prosecutor is dishonest. But, as long as the system refuses to hold those who are accountable, the power that comes with being a judge, cop, or prosecutor will corrupt all but the most virtuous. Worse, the dishonesty has become so pervasive in the system that we either have or are very close to reaching a tipping point where the dishonest run the honest out of the profession.

    So, if you want to clean up the system, getting rid of qualified immunity is the first step.

    1. It wont be fixed ever since now liberals believe in the power of lawfare. They are decrying First Step because Trump signed it. They would rather play politics than fix the system. Schiff, sqrsly, Nader. And other dumbfucks are about to impeach, or try to, Barr for requesting a lower sentence.

    2. I would think getting rid of victimless crimes would help a lot too. It’s much easier to fake a “crime” when there is no victim. Planting a dead body is a bit harder than planting some dope or an “illegal” gun.

      Also, what would be the effect of outlawing plea bargaining? To me it seems like this would have the same effect as ending victimless crimes. Jurisdictions would have to focus limited resources on those crimes that the public was most concerned about, which is likely to be actual crimes like murder, assault, burglary and fraud. I guess you’d have to couple this with a law that sets limits for how long you can make someone wait for their day in court too. Otherwise drug dealers and jaywalkers will just be sitting in a backlog for eternity, never knowing when the hammer will drop.

      1. “…Jurisdictions would have to focus limited resources on those crimes that the public was most concerned about…”

        Disagree. I predict jurisdictions would focus on the crimes they could most easily prove. Which would be strict liability crimes like dope and illegal weapons possession. Malum in se crimes that require a showing of mens rea, would be among the first to go by the wayside. Sort of what we see in places like CA now, where theft below a given dollar amount is de facto legal.

        I agree with you on getting rid of the War on Some Drugs. The pursuit of contraband has corrupted police and the rest of the justice system.

        Just don’t expect crime rates to drastically fall when you do. Many if not most of the same people who are ‘non-violent drug offenders’ in prison, are people who also committed violent crimes or property crimes. The cops/DAs just picked the set of crimes that were easier to prove or harder for the defendant to wriggle out of. They aren’t going to stop committing violent or property crimes just because heroin is now over the counter.

        If you get rid of plea bargaining, the system will clog, and would crash, if the cops still continued to bring property and violent crime complaints to it for processing. What do you think will happen? The System crashing? Or cops drastically slowing down the number of, e.g., property crime complaints, telling the victims, “Well, this is what you have insurance for.”

        I know which one I think will happen.

  10. A start would be to reimburse the expenses of the innocent. Maybe instead of the fines enriching the prosecutors, they could go into a fund for the reimbursements. Eliminate plea bargains, since they are mostly used as a club in ‘bargaining’ with the powerless accused. Require the prosecutor to actually prosecute through trial, and a lot of charges will never get filed.
    Then we could move on to repealing the 85% of the laws that are bullshit.

    1. So, 95% conviction rate isn’t good enough. You’d prefer 100%?

  11. I suggest the fatal flaw is more fundamental: our legal system is based on adversarial processes not objective reasoning.

    By design, and probably reflecting our cave man heritage, the legal core is us versus them, or A versus B. Procedures not only accommodate but encourage exaggerated adversarial positions, with some expectation that the outcome might be a compromise closer to something appropriate. Before trial “justice” is determined like haggling at the bizarre. During trial, and with delusional ideas about the intellectual capacities of jurors, rhetoric and posturing mean much more than facts.

    I am not sure what would be better. My academic and professional background is in scientific research, where we at least attempt to find objective truth (and to admit when we cannot). Maybe robots would do a better job of enforcing laws and punishing transgressors.

    1. In scientific research, does the object of your research actively try to lie to you? Or hide what you’re trying to find out? Because that’s what happens in criminal law. There usually isn’t an objective resource to tell the factfinder what happened during a given alleged criminal episode. There are factual pieces of evidence, some more or less objective. There usually are people explaining what they saw, heard, felt, or said. From those competing narratives, the factfinder tries to figure out just what the hell happened, and whether what happened meets the requirements for criminal conduct.

      Instead of, say, the biography of Thomas Edison, where the audience watched him try thousands upon thousands of different techniques and materials to make the incandescent light bulb, a better explanation of what happens in criminal law is to go watch Rashomon a dozen times or so. Then realize, unlike Kurosawa, that there isn’t a disinterested character (like the woodchopper) most of the time who can tell us what happened.

      In that situation, two separate parties, each zealously trying to explain what happened, is a better means for getting the factfinder to figure out what happened, than an idealized “objective” observer. Juries, in my limited experience, try really hard to figure out what happened from the narratives they’re given, though it is true, (again IME) that the quickest way to get punted off a jury pool is to ask questions and look like you’re interested in the proceedings.

      1. In that situation, two separate parties, each zealously trying to explain what happened, is a better means for getting the factfinder to figure out what happened, than an idealized “objective” observer.

        But that’s not the way it’s supposed to work – as the man said, the prosecutor is supposed to be an officer of the court seeking justice, not an opposing party seeking a conviction. The idea that “I’ll lie and cheat and steal and do whatever I can to win a conviction and defendant’s counsel will lie and cheat and steal and do whatever he can to get his client off” makes for a fair contest because both sides are playing by the same rules is nonsense when most of the time the defendant doesn’t even have a lawyer.

        From lazy cops grabbing the nearest likely suspect and figuring, well, if he’s not guilty of this particular crime he’s probably guilty of some other to judges (most likely a former prosecutor) rubber-stamping warrants to the TV news reporting on arrests without disclosing that the report isn’t the work of an actual reporter but merely them reading the police department’s press release to prosecutors working hand-in-hand with the cops to secure convictions rather than as a neutral check on police abuse to the aforementioned judges quite likely being former prosecutors themselves to the “probable cause” thinking of your average juror that if the defendant was arrested and is now being prosecuted, well, there must be a good reason everybody thinks he’s guilty, to the skeevy defendants who can’t afford lawyers and have to resort to the over-worked and under-funded and under-staffed public defenders office, you get a thoroughly rotten system where nobody gives much of a shit about “justice” because the defendant’s
        probably guilty and he’s a low-life scumbag even if he isn’t so it’s just as well we lock him up anyway and they don’t give any thought to “well, so okay, what if he is guilty – what should we do about it?”

        My idea would be more of an arbitration system where the arbitrator has no incentive to shade his rulings one way or the other and has a full array of possible solutions to the issue, from jailing the cops who wrongfully arrested some guy to sentencing a thief to getting a job and paying back his victim, to awarding the guy arrested for assault and battery a medal because the guy he beat the shit out of was a nasty piece of work who needed the shit beat out of him anyway.

        1. My idea would be more of an arbitration system where the arbitrator has no incentive to shade his rulings one way or the other and has a full array of possible solutions to the issue, from jailing the cops who wrongfully arrested some guy to sentencing a thief to getting a job and paying back his victim, to awarding the guy arrested for assault and battery a medal because the guy he beat the shit out of was a nasty piece of work who needed the shit beat out of him anyway.

          Let’s take these one at a time. In theory your arbitration system is what we have now. In practice, judges are often captured by the system, and are veterans of usually the prosecutorial bar. (Harder for defense attorneys to get elected, and besides, the pay is usually a lot better on the defense side.) How do you propose that your arbitrators won’t be captured by the system in the same way that judges got captured by it?

          Full arrangement of remedies. In theory, again, we have that now. Judges can send crooked cops to jail, and frankly they need to much more often. One thing that stands in the way is that prosecutors rely on cops to give them cases, and help make those cases when brought to trial. This chills efforts by prosecutors to try and root out corruption in law enforcement. But again, in theory, judges can send cops to the pen. Should all wrongful arrests lead to arrest of the officers involved?

          Offenders are often sentenced, as part of their probation/parole/alternative sentencing, to find and maintain employment and to provide restitution to their victim. As many offenders lack interest in employment, and the state is not especially interested in spending money re-incarcerating the offender, you can imagine how well this works. Double secret probation comes to mind.

          As for the ‘nasty piece of work’ getting the shit kicked out of him, how do you know who’s nasty? (Gets back to my Rashomon observation, and that perceiving objective truth in a sea of subjective narratives, is often impossible) The criminal justice system hates self-help when it comes to violence. There are very good reasons why it should.

          Your observations about the flaws in the criminal justice system, though exaggerated in their frequency, are often true. Consider though, that the criminal justice system often uses the venality of prosecutors to do good. They want convictions. Therefore, they usually won’t take cases where they don’t think they can get convictions.

          Usually, in the vast majority of cases, the cops aren’t manufacturing evidence. Testilying, or knowing how to say the right incantation to make identical conduct Constitutional, sure—it’s amazing how much contraband is in ‘plain view’. Or how many suspicious, ‘weapon-shaped’ bulges a person can carry, that aren’t weapons, yet allow the police to search anyway. But actually making shit up about somebody? Doubt it happens all that often, egregious examples like Officer Goines in Houston, or the cops that shot Johnston in Atlanta, aside. It’s not worth the effort. And cops are lazy. It’s also not worth making sure everyone’s lies are straight. Crooks aren’t worth losing your job over.

          So, when a defendant is brought before a prosecutor, and the list of evidence, affidavits, etc…is brought to the prosecutor, the case isn’t going to go forward unless the elements of the crime are ticked off one by one, hopefully with multiple pieces of evidence showing each one. Because otherwise the prosecutor might actually have to go to trial, and that’s hard.

          Mistakes get made. The US locks up a titanic percentage of its population as things go. You do…call it 20% of the ~5 percent of Americans who’ve been incarcerated, so around 3 and a half million cases per year nationally(?), you’re going to get some whoppers of errors at one end of the distribution. Doesn’t mean the entire system is fatally flawed, or that it’s worse than a lot of things that well-meaning reformers will ensure.

          1. “”Judges can send crooked cops to jail,””

            Can. But do they?

            Cops prefer trial by judge instead of jury for a reason.

      2. But isn’t that problem going away as we get more and more electronic surveillance? Soon there’ll be a camera everywhere, and anyone will be able to tell what happened. We’ve seen it already in sports officiating, so why not in real life?

        1. Your solution to America’s criminal justice problem is the Universal Panopticon? Do you cure toothaches by shooting yourself in the head?

      3. We have actual science on human perception, memory, and cognition to tell us that (1) people indeed lie, and (2) most people never objectively saw what happened and/or do not remember it accurately. And we also have scientific approaches to detect lying and see beyond it.

        So any different legal strategy would not rely on what people say, and I still think the he said/she said adversarial approach does not strive for or often yield anything like truth, just what the advocates argue better for. In many cases that serves the current legal system better than it does address actual transgressions.

        1. It sounds like you want to get rid of witness testimony entirely. What would you like to replace it with?

          Because the various CSI shows are bullshit. There usually isn’t a handy camera that captured the defendant committing the crime. Even if there is, most of them don’t see in the dark very well. Even with the ones that do, it’s hard if not impossible to look at a bit of video and definitively say, “Joe did it, and I can prove it was Joe, and not this other dude Jim.” DNA usually isn’t available, though it can be a godsend for proving that some part of this guy was on X piece of evidence. Hair, fibers, dirt, shell casings…the whole panoply of physical evidence, is usually only useful for inducing an incriminating statement. Though I guess you can start stacking Bayes’s inferences—as I did a few days ago, discussing the Hurricane Carter case—to point to how unlikely it would be that all of these pieces of evidence happened to match the bad guy.

          From the criminology material I’ve read, most cases are proven through witness statements, either an outside witness, an accomplice or statements from the defendant themselves. Eliminate those and you eliminate a lot of possible convictions of people who actually committed those crimes.

          1. Two further points. First, there are plenty of crimes that primarily rely on physical evidence to establish their elements. Problem is, they’re usually strict liability, malum prohibitum type things. Drunk driving. Possession of narcotics. The driver’s BAC is usually the biggest piece of evidence. Narcotics have to be tested, aside from some elaborate sting were the defendant thought they were conspiring to sell, yadda, yadda.

            Second, the vast majority of physical evidence requires testimony before being shown to the jury or entered into evidence. The fingerprint tech needs to testify about how s/he took the prints, where, what happened to them after they were resolved/images. What are the tech’s qualifications? And so on. Physical evidence isn’t by itself enough. Further, the person testifying about the physical evidence must be available for cross-examination. You can’t cross-examine a fingerprint card.

            So testimony is inescapable in our system, despite the flaws you noted.

    2. This has been my view of the legal system since…forever. Mabye it’s naive, but maybe naivety is a good thing here. I note that if you had a dispute in your family or some other organization you were part of, its resolution would have no resemblance to the legal system we have. Surely you’d arrive at a better way of doing things. It might not follow “the rules” all the time, but just common sense.

  12. I know my opinion won’t be popular with other libertarians but I think we should virtually have a zero prison population, or as small as possible. Obviously certain types of crime such as possession should have never been in prison ever. But if you’re so dangerous that we can trust you in society, then you should never be out in it again. Executions should become a normalized part of the justice system. If you want to commit a crime that’s fine, but know that when you go to prison, it will be for life or with a high chance of execution, it will be harsh and your spend your time doing heavy labor with no reward The consequences to me have to strong enough to let people know that the risk for crime won’t be high enough. I know there are alot of potential flaws, but there could be some good benefits for those that work in corrections. As a side note I used to work as an corrections officer in Indiana.

    1. What about exile?

      1. Where do we send them?

        1. Duh. We send then to sanctuary cities, of course.

      2. Like Britain dumping criminals onto Australia? It worked when there was a frontier (Native Australians didn’t count; they were NOT asked their permission for this).

        Maybe in the future… Think of “The Expanse”… The Moon, Mars, and asteroids can be our “dumping grounds” for criminals. We’re obviously not there yet! Give it a few decades maybe…

        In the meantime, dump them to WHERE? We already “accidentally” look at American citizens who can’t offer up their “papers please” quite correctly, and ICE says or thinks, “You look like, or speak or mumble like, a Mexican to me”. So we dump them on Mexico, whether they were born there, or not! This kind of thing doesn’t make for good USA-Mexican relationships! How would the USA feel, being treated as the systematic “dumping grounds” for the convicted criminals from some other nation?

        So… Till we figure out, “dump them to where?”, it’s an interesting idea, but w/o any (ethical, peaceful, considerate of other nations) place to go, for now, MeThinks…

    2. But if you’re so dangerous that we can trust you in society, then you should never be out in it again.

      And there’s the key – there really aren’t that many crimes that make you an irredeemably lethal threat to society. Aside from the victimless crimes and the bullshit crimes that shouldn’t be crimes in the first place, there’s the issue of rehabilitation and that a criminal is no more likely to learn his lesson about keeping his hands to himself by being locked in a cage for a long period of time than he is by being held down while his victim has at him with a baseball bat for a couple of minutes. And if he doesn’t learn his lesson the first couple of times, well then, he’s a defective human being and needs to be disposed of. Nobody benefits from large numbers of people being locked in cages. Either beat the shit out of them for doing bad things, admit that what they did really wasn’t so bad, or get rid of them if there’s no hope they’ll ever stop doing bad things no matter how many times you beat them.

      1. I approve of this message!

        1. Me too.

          Incarceration seems to be a crappy compromise society’s arrived at to try to forget about such problems. We lock people up in remote places and discourage even visitors, let alone routine interaction with the general public. Maybe it wouldn’t be as bad if we had them on public display as in the old days, so then we’d all be exposed to both whatever good and whatever bad physical restraint does.

    3. I’m another libertarian, and DH’s opinion is popular with me. I think incarceration is way overdone, and would be even if the victimless crime laws were abolished.

      Physical restraint should be used only on acutely agitated individuals, to cool them off. Maybe 90 days at a time, tops, but usually just a few hours or days. If the object of incarceration is to incapacitate, and you think someone’s so bad as to need to be incapacitated for more than 90 days from now, make it permanent by dismemberment or death. If the object is to punish, there must be better ways than incarceration, such as torture. And if you’re not willing to put them to death or cut their arms off, maybe you should reconsider whether it’s any of your business.

      If the object is rehabilitation, why the fuck should anybody else be made to pay for anyone’s improvement? If they’re not a proven threat, their lack of socialization is either their own problem, or that of others to get along with them.

  13. As a prosecutor told me, while a defense attorney is ethically obliged to defend his client no matter how guilty, a prosecutor is ethically obliged not to prosecute if he believes the defendant is innocent.

    The prosecutor, now retired, is a libertarian in Arizona. Yes, there are a few libertarian prosecutors.

    1. But for the defense attorney, defending his client does not necessarily mean claiming he is not guilty. For the prosecutor, proving guilt is his only job.

    2. A defense attorney is obligated to provide the defendant the best defense possible, even if he believes guilty.

      It would be nice to believe that few prosecutors are like Corey or Nifong, and that Howen overcharged the Weavers because ATF and FBI lied to the public (and him).

      There are too many prosecutors who refuse to revisit old convictions with modern DNA testing.

      I recall the old story of the rape case prosecutor who waved the defendant’s underwear before the jury with red stains, RED STAINS, knowing the stains were paint, not blood, and the defendant, with a lackadaisical public defender, got screwed.

      Yeah, there are defense attorneys who cast guilt on innocent parties knowing their client is guilty, as much as there are prosecutors who would indict a ham sandwich for burning the Hindenburg just to score a win.

  14. The biggest issue in my mind is that since most DAy’s and many judges (who usually were former DA’s) are elected there is no other incentive than to get a conviction. Because if you don’t, you are now “soft on crime”.

    BTW as I type this news is breaking that Andrew McCabe is not going to be charged for his very provable perjury allegations. So again, the system protects its own.

  15. I often wonder if the best start to fixing things wouldn’t be to limit voir dire of potential jurors, or more specifically to remove the ability to strike jurors without cause. As it is prosecutors (and defense council) can strike huge numbers of people from the pool without having to even explain why. I’d like to maybe have each side get something like two peremptory challenges at most, and any other removal of a juror needs to be for cause. It would have a number of benefits – faster jury selection and hence speeding up the process, less potential jurors needed and hence less numbers of people being called up unnecessarily, and a greater likelihood of independent-minded people being impaneled who would otherwise be struck.

    1. I don’t think the lawyers should be able to strike any jurors, only the judge should. Then they could call fewer people for jury duty, and take less of their time.

  16. Although the impeach is a political process, I learn much about people opinion of how justice should work for people that don’t like. And it’s not the same for people they like.

  17. Do other countries have similar problems? Seriously, I’d like to know how widespread they are, and whether there’s something peculiar about the USA that makes it prevalent here.

    1. You really don’t want to look at criminal justice practices in East Asia. Or most other places that aren’t the US.

  18. BS, “we the people” vote for convictions/revenge… So, we got it…

  19. It never worked due to conflicts of interest.
    When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

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  21. In the United States the “Immunity Doctrine” protects Investigators, and Prosecutors fro Law suits. Buy it has evolved into protecting Prosecutors and Investigators who knowingly withhold exculpatory evidence to get a conviction, and protects lying on warrant applications, and protects them to bribe false witnesses and all to obtain convictions of who they have targeted. The Immunity Doctrine protects criminal actions by Prosecutors and Investigators and allows them to continue incarcerating and even executing otherwise innocent people with relative impunity.
    Judges can also block defense witnesses from testifying. As long as the forgoing continues nothing can be done to change anything for the better, Nothing. It will only continue to become more corrupt as we are seeing everyday.

  22. Then there is the exceedingly draconian and corrupt Military “Justice” System. Where non unanimous juries are allowed, and the jurors are in direct competition with you for rank and accolades. Prosecutors are allowed to do anything they want, and the defense is hobbled by the judge from day 1. If you’re accused, you’re going down. And Trump isn’t going to stand up for everyone in these cases, just the high profile press ones that he can get attention from. Everyone else will rot in the brig, or be ruined from a system that has long stacked the deck against you.

  23. Sure it can! Just suspend any punishment when black and brown young men commit 75% of the violent crime in this country. You already got that pushed through, so now kick back and enjoy the fruits of your labor as we spiral to 1970s crime rates. By the time the backlash starts and we begin punishing crime again you’ll probably be dead.

  24. No, the criminal [in]justice system cannot be fixed. Because you cannot trust prosecutors or judges. They are exercising the power to condemn and punish, and that will never turn out well. Prosecutors and judges also do not like or trust, thus they manipulate and deceive juries, in order to produce convictions. You can minimize the harm cause by the criminal legal system by reducing the number of crimes on the books and the punishment for those crimes, and by protecting the right of jurors to independently determine the verdicts in criminal trials.
    A huge reduction in injustice would also result from making it a felony for prosecutors to offer bribes (including sentence or charge reductions) to witnesses in exchange for their “cooperation.” Prosecutors routinely suborn perjury through plea offers, and judges just pat them on the job for jobs well done.

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  26. Four changes solve everything..

    1. Whatever you offer in a plea is the highest thing you can be charged with if you decide to go to trial. If the goal is punishment the D.A. is saying in the Plea Bargaing that the sentence offered is acceptable for the crime.

    2. Disbarred if you are a Prosecutor and willfully withhold evedince.

    3. All jurors are told of Jury Nullification laws and are told the sentencing guidelines required if convicted, if applicable.

    4. No BS jailhouse snitch witnesses.

  27. “I’ll look at reforms in a future column…”

    I hope that your look at reforms includes the restoration of private civil and criminal prosecutions against police, prosecutors and judges. “Immunity,” qualified or absolute is something the courts invented. Congress can provide for both and so can states in state court if Congress won’t amend its rules.

  28. I think it’s important to catalogue all the injustices to slow their spread, but the problems with the injustice are systemic and impossible to reform as human nature itself.

    Not only have judges and prosecutors exploited the failures of the system to ensure they always win and the other side always loses regardless of the actual charges, but prosecutors and judges have shown they are unwilling, or unable to learning from their previous errors and crimes. They are responsible for full oversight of themselves so have no skin in the game to want things fixed. In fact, not only are they insulated from the harm their regular abuse of power causes others, but they benefit directly the corruption through easy wins and full prisons. Why would they want to give up the fun? I mean, prisons are going to just fill themselves.

    First show me the cancer with an interest in finding a cure for cancer and I will show you the police officer, prosecutor or judge willing to cure what ails our current system. That matters because there is no one in a position to regulate their behavior other than themselves.

    The most damning thing I can say about our current system is that innocence is consistently your worst defense.

  29. I mean, prisons aren’t going to just fill themselves

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  31. Hmm, sounds like a pretty simple solution to this… How about having the sentencing hearing prior to any trial or plea deal? This way, the accused knows exactly what he or she is facing in terms of punishment prior to making that decision. The reason they don’t do this though is because trials cost the government a lot more money, so if they have to spend more money on a trial, they punish the accused if he or she is found guilty with more time.

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