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.