Thursday, August 02, 2007

The Blue Devil You Know....

As the Duke rape case receded into the background, I wrote a post noting that most people wrongly accused of crimes fare much worse than the Duke defendants. Indeed, in at least some sense, the justice system behaved exactly as it should have in this sort of situation. Certainly, we all agree that the Duke players should have never been charged. But ideally, the justice system has fail-safes to account for that situation, and they kicked in beautifully. At the end of the day, the case never went to trial, the innocent men were exonerated in the public eye, and the prosecutor whose ethical breaches were what caused the problem in the first place was harshly disciplined.

Sadly, this is very atypical. While men and women are wrongfully accused of crimes every day, few end up with even the modestly "happy" ending the Duke players received. Most cases at least go to trial, often times they are convicted, and even once they are exonerated, only in the rarest of cases is the prosecutor even admonished, let alone disciplined, for any ethical violations they may have committed in the course of pursuing the all-important conviction. By and large, the conduct that provoked the calls for Mike Nifong's head is conduct that we are all too willing to condone. In other words, for all the gross injustices Nifong perpetuated in his prosecution of the Duke case, his real mistake, as CUNY Law Professor Victor Goode argues, was "treating three middle class white defendants as if they were poor and Black."

Richard Moran, a Sociology Professor at Mt. Holyoke College, found that two-thirds of wrongful death penalty convictions are the result, not of "innocent" mistakes or errors, of "intentional, willful, malicious prosecutions by criminal justice personnel." Moran continues:
Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.
Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

Alexandra Lahav comments:
Moran suggests that we change our rhetoric (calling these “unlawful” instead of “wrongful convictions”) and establish more specific standards for overturning convictions. These suggestions are too weak. The real problem, as he points out, is “the hearts and souls of those whose job it is to uphold the law.” I am not sure whether law or ethics rules can change hearts and minds, but setting that philosophical debate aside the law surely can put fear into the hearts and minds of prosecutors by actually punishing them for misconduct. All prosecutors who engage in such conduct should be fired and disbarred.

For a long time now, my impression of the mentality many prosecutors seem to hold is that their job is to pursue convictions, not justice. There are a variety of reasons this might have developed, from a natural outgrowth of having an adversarial system to a political desire to seem "tough on crime." Nonetheless, too often the lust to put someone, anyone, behind bars leads to illegal activity that needs to be punished. The integrity of our entire criminal justice system is jeopardizes when its agents can freely get away with illegal and unethical conduct that comprise everyone's right to a fair trial. If we are to do justice to what happened to the Duke players, we need to state a firm commitment to never tolerating this sort of behavior--even where the defendants don't have the resources to make it onto our TV screens.


mnuez said...

T'would appear to me that the single, defining crime in the matter is the tremendous discrepancy afforded by the law between people of means and people without them.

Race is not the issue and never has been. Rich blacks get treated like rich whites and poor blacks get treated like poor whites.

Prosecutorial zealotry is also a red herring inasmuch as the system of Defense is just as guilty. A rich man gets the best justice money can buy regardless of whether he's on the prosecuting end or the defensive end.

The facts simply are that when you're rich you have a damn fine chance of being cleared of a crime that you did indeed commit as well as of "getting your man" in having charges pressed against an enemy for a crime that he did NOT commit. And when you're poor you have a good chance of being maltreated by the law regardless of innocence (and this has occured with a far far greater percentage of indigent people than you could EVER imagine) and you have small chance of having your proper grievances redressed by our much praised system of "justice".

In fact, (though you'll likely think I'm WAY over-reacting - simply because you haven't experienced this first-hand) I consider the current policing and justice system to be so corrupted against the deserved justice of the poor that a violent revolution would not be morally wrong. I desire no such revolution and I believe that it would cause much evil and practically no good - but I'd consider such a revolution to be entirely morally understandable.

All the best,


Stentor said...

Nonetheless, too often the lust to put someone, anyone, behind bars leads to illegal activity that needs to be punished.

I imagine there is a high proportion of cases where the prosecutors are sure they've got the right guy, but they (wrongly) see the system as grossly biased against them (e.g. the need to prove things "beyond a reasonable doubt"), so they engage in unethical conduct to get *this guy* (not just "someone, anyone") behind bars.