When Ninth Circuit Judge Alex Kozinksi’s article in the Georgetown Law Review broke, my inbox was flooded. Criminal Law 2.0 seemed to be every criminal defense lawyer’s dream, a list of the failed tropes that undermine the legal system, put innocent defendants in prison, and challenges the widespread false assumptions that have permeated public discussion of the criminal justice system.
And here it was, from the hand of a Circuit Judge, no less, and in a law review. Could it get any better?
At Volokh Conspiracy, Judge Kozinski’s former clerk, Eugene Volokh, is serializing the article, beginning with the preface:
Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.
Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.
All good stuff, and it goes on in the same vein. Judge Kozinski then lays out 12 tropes that are either false, or just not nearly as true as most people believe, with explanations. He introduces his list thus:
In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has been undermined by experience, legal scholarship and common sense. Here are just a few examples:
Again, all good stuff, with examples of false tropes like
1. Eyewitnesses are highly reliable.
Certainly a myth in need of busting, and Judge Kozinski does a fine job busting it. In fact, each of his 12 tropes is well chosen, important and significant. So why am I not jumping up and down, cheering, yelling, “you go, Judge”?
Yet, there was only silence here. Until now.
My problem is that there is nothing on Judge Kozinski’s list that isn’t known. Well known. Each has been written about here at least once, if not a dozen times, in various permutations. Is that because I’m just so much smarter than judges? Hardly. Well, some maybe, but that’s not the point. Most readers know it as well. Most lawyers know it. Oh hell, almost everyone involved in the legal system knows it. And those who don’t are beyond saving.
Judge Kozinski’s list is great, but obvious. Sure, most of the public may not be aware of it, though they won’t learn of it in a law review article because, well, nobody reads law review articles, but then the public knows almost nothing about law and never has. They may think they do, but they don’t. And even given a bit of hard information, they refuse to absorb it because it makes their head hurt. Platitudes are so much easier to absorb.
All of which leaves a huge, unexplained hole. If lawyers, judges and the handful of non-lawyers willing to suffer headaches are fully aware of all these false tropes, why then do they persist? Why haven’t we fixed them, rid our system of the lies upon which it’s built, ended the premises we all know to be false and done a better job of it?
This is where we come to Judge Kozinski’s 13th Trope, the one unspoken.
13. Ultimately, Judges go with the odds.
As we should have learned from Judge Richard Kopf’s blog, judges are human. Most have a bias in favor of the system, that police are more likely to be mostly truthful, that prosecutors are likely to be mostly honest, that defendants are likely to be mostly guilty.
A few wrap themselves up in their self-righteous adoration of law and order, but most just don’t know. There is no magic way to figure out who is telling the truth and who is a lying sack of shit. Judges don’t want to convict the innocent, but they also don’t want to fail the victim, or let the bad dude walk and do harm to someone else. They’re conflicted. They’re uncertain. They want to do right, but realize after they’ve got the robe on that doing right is a lot easier to say than do.
And judges live in a world of bad stuff. People aren’t hauled before them because they’re accused of taking cute kitten pics, but because terrible things happened. Horrible crimes, rapes and murders, pain and misery, day after day. And it’s left to them to figure out what to do about it. And they just don’t have a friggin’ clue.
Do smart, aware, honest judges truly believe the 12 false tropes presented by Judge Kozinski? Get real. They’re foundational excuses, the sort of fodder for public consumption that explains what comes next, that the public can easily consume like special sauce and take comfort in the legitimacy of the judiciary and legal system. They let people sleep at night.
But no knowledgeable judge is unaware of the 12 false tropes. Remember Judge Kozinski’s first example, “eyewitnesses are highly reliable”? Eyewitnesses are reliable, say, 80% of the time. The judge wasn’t there, and he has no clue if any particular eyewitness before him is right or wrong, if he’s one of the 80% or one of the 20%. And there is absolutely no way for the judge to know anything more than that.
Under a strict application of law, it would seem the eyewitness then must be rejected, as it fails to meet the standard of beyond a reasonable doubt. Twenty percent likelihood of error is far from beyond a reasonable doubt. But that means that he would be rejecting an 80% likelihood that the eyewitness is right, the defendant is guilty, and his decision would fail to vindicate the harm done the victim and put a bad dude back on the street to harm others.
Judges can’t bring themselves to do this, because they know all about the false tropes, but they also know that crime happens, people are harmed and it’s their job to do something about it. So the judge goes with the odds. Everything else is for fortune cookies and children.
My single anecdote isn’t data of course, but having spent most of Monday in voir dire, I came away with the impression that a lot of the public is acutely aware of the necessity to go with the odds.
Out of around 70 in the pool, they came up with 11 — 1 short, and I would say that was mostly due to people not being comfortable they would be given enough information to calculate the odds.
The lawyers did a fine job explaining that the jurors wouldn’t get any sort of a background story before having to determine guilt. But they didn’t even mention the two-phase nature of the jury’s involvement, or that that the background story would probably be forthcoming before sentencing, until I asked about it, and even then they didn’t repeat that and make it clear. Which was a shame, because I think there were several jurors stricken both for not being able to pass judgement without knowing prior history, and for not being able to consider a punishment as low as probation once they found someone guilty (of strangulation in this instance).
So now they get to do it all over again. I have no idea whether they will figure out that they probably could have wrung 12 jurors out of that pool if they had gone about it the right way, or whether they will simply start with a much larger pool next time.
Cool story, bro.
I guess you deciphered the incomprehensible, so I’ll pre-delete my long-winded explanation, and just say that speaking of tropes, you get to combine a couple of your stock punch lines for this, since it involves both Texas and a non-lawyer…
Nah, just decided that I didn’t want to read the long-winded explanation that I anticipated would be coming and be forced to use my stock punch lines covering both Texas and non-lawyers.
So why am I not jumping up and down, cheering, yelling, “you go, Judge”?..
not even one backflip ??
What causes me pain is that the footnotes are nearly as long as the actual article…
This stuff has been written about over and over again by people smarter than me, and yet the beat goes on. I suggest we stop telling everyone we have the best criminal justce system the world has ever seen. That would be a good place to start.
What do you mean it’s not the best? Haven’t you seen all the metrics that show we’re number one or number two?
No, I have not seen,… nor am I inclined to see. I have my own experiences and stories which trump, in my mind, any numbers you or anyone else may proffer. Ha. Please: Do not confuse me with the “facts” (or statistics).
I may check out your link later, when I’m in the “mood”. Right about now, it’s a Bad
Moon Rising. Other than that, we are chipping away and making progress. Progress is our most important product. Whose corporate motto was that?
He was making a joke, Bill. You remember them. They made you laugh when you were young.
Good post, but I would have liked to have seen the cute kitten pix to which you referred.
Only a “crazy” unorthodox, dare I say rouge, judge entertains reality anymore let alone gravity.
Marlboro is now rolling with “smoke colored” tinting on the lower third of only the backside of the cellophane that covers the “western” themes printed on the lower tenth of the back side of their cigarette packs.
Do you have any fucking idea how difficult it is to fade color on cellophane?
Where we? Oh yes….judges.
It’s all right there in the Jupiter’s case law library. Don’t forget to put on your 3-D glasses before looking at the index. And whatever you do don’t confuse the index with a list.
What are you rambling on about today, you still want it both ways esteemed one?
Life ain’t fair and gravity don’t count, even the Supremes can mostly agree on that. So why is it that ‘big boy and girl’ judges, even the garden variety ones, tend to avoid embarrassment like the plague especially amongst those they “work” with regularly? And why is it that, if true, for some reason you CDL’s don’t count, not even the ‘everyday’ in court, super CDL’s appointed by the court to defend the integrity of the entire solar system. Even the ones who inherited enough cash to afford a deep enough wardrobe to eat lunch where judges eat.
Anyway, this “judge thing” you got going on, or rather not going on, depending on…but certainly want to be “going on” IS, it seems. As you point out in this post, your recent ‘Bail’ post, and on and on in dozens of other posts. Are you looking for the “Anti-Meh-Magic-Spell or what?”
What’s your problem with gravity anyway? Is this trend towards the gravitational forces of comets being enough for the bench, perhaps the norm for the bench today, not enough?
It is starting to sound like you want earth’s gravity, from the defense well (of all places), to bounce a signal off the moon and send out an invisible S.O.S laser-beam to “somehow or another” zap the courtroom-comet-ride back into some semblance of earth-like-gravity, even lunar gravity will do (even when they are holding up mirrors), before what is going on every fricking day-in-and-day-out in courtrooms across the nation becomes the “norm”.
Are you really that afraid of judges letting courtrooms become open comet-like-gravity zones? Judges might actually, currently really, be lost but for the comet-dust. You ever think about that?
You CDL’s are so deep into Jupiter’s Law Library that your sinuses have become your lungs? And when you do come up with enough breath to occasionally carry the old school harmony you have to gently squeeze your trachea while presenting the effort before the effort is denied even if you are in tune.
Get over it? Even the boot has qualified immunity, even if it is rarely used to crush or even restrain a skull that is resisting the prone or supine position.
You accept this reality, but insist somehow the spurs looking to hook the beast in order to control it will accept nothing other than a complete and patient washing away of all the blood in the laundry. Or something like that.
I don’t know that many judges. I have had the opportunity to supervise one around a rotating pig that I was charged with roasting during a friends wife’s 50th b-day party a decade or so ago though.
To this day we still exchange pleasantries that encompass something that erodes formal when crossing each other’s trails around town. He has aged more than me. I think I drink more than him too. He hasn’t accepted any of my formal (which include lots of labor) solstice party invites, not even open second handed has he shown up.
I am pretty sure his daughter was in one of the waves of “young-adult-people” that timidly joined last year’s winter solstice beach fire though. These nearly unwelcome but expected youthful “waves” disperse and attempt to “lean in” at the rather predictable rate of 85/15 after their attempts of sustainable fire become the last flashes of the late cardboard boxes that encompassed the half-racks of beer bottles on a beach that showed up late to numb the substance of the after party invitations. For some reason the cardboard hoping to ignite the soaked driftwood branches that have departed trees older than their grandparents never seem to fully ignite. The steam and salt are baffling! They should probably drag them to the fire sooner.
I can’t believe you want to be a judge!
I get it and all, but really?
Pretty finite, even if you took the time too temporally exit a few of your more ascending grumpy periods or even refused to let the apex of some of your more fluid runs to distort the gravity of comets.