At Concurring Opinions, Danielle Citron is hosting a symposium on Virginia lawprof Brandon Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011). Coming on the timely heels of a 60 Minutes segment about Chicago being the mother lode of false confessions, it’s certainly a timely topic.
Added to the mix are some other recent books by academics.
The books and topic will be discussed by “an exciting group of scholars,” five words I never expected to see. I tried to leave a comment to that effect, but it appears I remain banned from commenting at Co-Op as an undesirable.
Along with Garrett’s book, we will be discussing three new books that intersect well with the problems he tackles in Convicting the Innocent: Stephanos Bibas’s The Machinery of Criminal Justice (Oxford University Press 2012), Daniel S. Medwed’s Prosecution Complex: America’s Race to Convict and its Impact on the Innocent (New York University Press 2012), and Dan Simon’s In Doubt (Harvard University Press 2012).
So you’re probably delighted about this, exciting scholars discussing issues of great importance to those of us who toil in, or care about, the criminal law arena, right? Before you make the popcorn, consider this quote from Steven Bibas, whose book about the Machinery of Criminal Justice will be part of the mix.
Few would argue that the criminal justice system is a well-oiled machine, but Bibas’ solution is to make it more transparent and democratically accountable for its failures. Not leveling the playing field, nor invigorating constitutional protections, but increasing the “quality of convictions” by exposing factual and moral injustices.
In short, our criminal justice system is a broken machine running almost on auto-pilot. It needs to be more transparent and democratically accountable for its failures. We cannot abolish plea bargaining, as we need its ability to handle staggering caseloads. But we can hope that the exposure of factual and moral injustices can prompt rethinking, forcing us to slow down the assembly line, to increase the quality of convictions and punishments even if that means reducing the quantity and doing more triage. Books like Brandon’s, Dan’s, and Dan’s can, I hope, prompt more oversight and public involvement to ensure both factual and moral justice.
One of the recurring themes is that the failure of the system isn’t due to overzealous, lying prosecutors and judges who refuse to enforce the Constitution, but criminal defense lawyers who fail to win and, instead, rush to plead their innocent clients. They tend to hate pleas and love trials, which tells me that they have either never tried a case as a defense lawyer or have conveniently forgotten what it’s like when the other side holds all the cards. They adore the absurd fallacy of a trial being a search for the truth rather than a one-sided inquisition.
Danielle Citron, taking a breather from her moribund cyber civil rights quest, speaks to her own concern, stemming from her days as a Trial Preparation Assistant at the New York County District Attorneys Office.
In reading Garrett’s book, it was hard for me to shake my own memories of the Central Park Jogger trial in 1990-91. I was a trial preparation assistant at the Manhattan District Attorney’s Office for the bureau next to the one in charge of prosecuting the case. In the mornings when delivering files to the various courtrooms, we’d witness the march to the courthouse: prosecutor Liz Lederer’s team, the defendants’ family members, their lawyers, activist Al Sharpton, and Bill Tatum, editor of the New York Amsterdam News. Public conversation was divisive. The mainstream media cast the defendants as a “wilding” mob of black teenagers who descended on the petite white jogger; the Amsterdam News decried the arrest and prosecution as racial injustice. Even though forensic evidence exonerated the defendants (the FBI lab conclusively ruled out the semen found on the victim’s sock did not belong to any of the defendants), the jury convicted them. The justice system failed us: we convicted the innocent.
The justice system failed us? It’s understandable that Citron would make this gross misstatement, given that as a TPA, her expertise at the time was more limited to the efficient use of copy machines and where to find the cheapest coffee cart on Hogan Place, What she should have said is that the system failed five young men, and that Liz Lederer, who prosecuted them with a viciousness rarely seen, such that she never considered for a moment that she and her beloved detectives were absolutely dead wrong.
While I am deeply interested in what comes out of this symposium, as it frames the legal academy’s discussions about criminal law issues and drives tenure-hungry academics to write books to meet with its approval, I am also deeply concerned and skeptical that it will do more good than harm. These exciting scholarly symposia tend to have two fundamental flaws.
First, they discuss criminal law based on theory relative to Supreme Court decisions. Such discussions couldn’t be more distant from reality in the trenches, where they speculate as if trial judges apply the rules of law in the same sanitized reality as the factual background appears in an appellate decision. Even the lawprofs who once graced the table on the far side of the room from the jury box forget that brilliant motions are met with a terse “denied” by a bored judge who assumes everyone is guilty anyway.
Where is the recognition of innocent defendants facing lifetimes in prison with cops trained to lie, judges who play the odds, prosecutors who can’t distinguish Brady if it bit them on the ass and identifications that everyone swears are just perfect? The system is broken? Sure, that’s easy to say. But to understand how it’s broken requires one to understand not only how it’s supposed to work, but how it actually happens. They either don’t, or won’t admit to it, because it would be impolite to call their former prosecutor brethren mean names for their role in the failure.
Second, the title of the Symposium reflects a fundamental academic misapprehension of the problem. Obviously, convicting the innocent is a terrible thing, but it’s a tiny slice of the broken machine. What about the guilty? What about the guilty defendant whose confession is coerced? What about the guilty defendant whose charges are trumped up to force a plea? What about the guilty defendant whose constitutional rights are trampled because (take note, Bibas) everybody knows he’s guilty? The system either works for everybody or nobody, because the innocent and guilty defendants all look alike at the beginning.
While lawprofs get to play a game where, after the DNA proves innocence, they can parse the details and see what went wrong, the disease occurs in the trenches where a system is geared toward making sure defendants are swiftly broken and convicted. Will any of the lawprofs know this? Will any of them discuss this? I hope so, though their discussions never seem to resemble any aspect of the criminal justice system I’ve ever experienced. But then, I’m no exciting scholar.