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Having read that book, we were well aware that Jim has an Rx for reforming the U.S.'s criminal justice system. We asked him about it. [Our questions are in italics.]
What is wrong with our criminal justice system?
The criminal justice system is a process designed to discover the truth of the charges levied against a defendant. In reality it is an adversarial game played between prosecutors and defense attorneys officiated by a judge in front of a jury that ultimately decides the winner.
The main problem with the justice system is that prosecutors are not rewarded by discovering the truth but by achieving convictions. And they have great powers and financial resources to do so. They control lineups and are able to influence eyewitness misidentification. They control interrogations and are able to secure false confessions. They are able to secure informants (snitches) through threats of punishment and promises of leniency. And they control the evidence. In short, prosecutors now control and direct the investigation of a case from start to finish and they have a vested interest in its outcome. Biases naturally arise.
Although there are laws to the contrary, prosecutors are able to withhold exculpatory evidence with impunity because infractions are difficult to prove and laws are rarely enforced.
On the surface, police crime labs purport to discover scientific truths based upon the evidence, but all too often they are puppets of prosecutors and spin the forensic evidence to fit their puppetmaster’s agenda. If this is not enough, prosecutors have unlimited resources to buy opinions of independent forensic scientists.
The adversarial nature of the justice system promotes junk science; e.g., contrary scientific opinions. These opinions are routinely purchased by prosecutors and defense attorneys and are left up to the jury to determine which opinion is the correct one. All too often juries vote on the performance of the forensic scientist rather than on scientific merit.
How would you fix it?
My friend Chris Plourd, who was the attorney instrumental in securing the release from prison of my cousin Ray Krone, believes that the solution is to enforce laws that are already on the books. For example, punish prosecutors who destroy or withhold exculpatory evidence. While I agree that this solution would work to a point if it would and could be implemented diligently. However, I believe that it is unrealistic to expect law enforcers to enforce the law when the offender is a fellow law enforcer. And I say “to a point” because discovering and proving all infractions is virtually impossible.
The best solution is to seriously revamp the system so that prosecutors are unable to break the law even if they are so inclined. This means that prosecutors must be stripped of most of the powers they now have. In a fair system, should a prosecutor have any more power than a defense attorney?
Because the police department is the investigative arm of the prosecutor’s office, their powers must also be diminished. (The defendant now must hire his own private investigator if he wants any investigation on his behalf.)
What are some necessary steps to revamp the system?
First, there should be no such thing as a “police” crime lab. Crime labs should be independent organizations preferably located at university medical schools run by forensic scientists outside the control of prosecutors.
Second, an independent organization outside the control of prosecutors should be established that does crime scene investigation (processes the crime scene, collects and stores the evidence), interrogations, lineups, etc.
How likely is it that your recommendations could be implemented?
Slim to none.
What would be the sequence in which reforms would need to happen?
The first step would be for the chief law enforcement officer of the United States, the President, to take an interest and direct the Attorney General, with the help of Congress, to draft a Constitutional Amendment to achieve the goals I’ve outlined.
Different states have different situations. How would your recommendations work in, say, three representative, but distinctly different states?
Making changes state by state would be prohibitive. That’s why a Constitutional Amendment is necessary.
What question (or questions) would you like to answer that we didn't ask?
After all of your experience of the criminal justice system on your cousin's behalf, how would you characterize the way it is now?
When I first became involved with my cousin’s case I was naive, to say the least. I believed that wrongful convictions were few and far between—that they were the result of honest mistakes. I believed all the buzz phrases we are taught: “The defendant is innocent until proved guilty.” “The state has the burden of proof to establish the defendant's guilt beyond a reasonable doubt.”
What I learned is that all too often the exact opposite of these statements is true. All too many jurors presume guilt and don't even understand what reasonable doubt is. The reality is that a defendant has the burden to prove himself innocent beyond all doubt. At least that was the situation in my cousin’s case. The only way to free him was for family and friends to find the real killer.
The sad fact is (as the Innocence Project has established through DNA technology) that a staggering number of wrongful convictions result from police and prosecutor misconduct.
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* Visit the publisher's website at brokenbenchpress.com. Note, however, that the website is currently undergoing reconstruction and may not appear correctly, depending on your browser.
Copyright © 2012 by Jim Rix
Jim, what would you say to abolishing the jury system and having cases decided by a panel of judges? Would that better serve the cause of justice?
ReplyDeleteI would support a no-jury sytem. Saves time and money AND many juries do not follow or understand the law.
DeleteJudges do?
DeleteEarlier in the the year I read biographies of two Federal Appellate court judges, Learned Hand and Henry Friendly. They were constantly appalled by the ignorance and misunderstanding of the law by lower court judges that appeared in appeal briefs.
Both spent much of their careers pushing for better education for the bar. Both were on the bench c. 1930-1960. I suspect that its gotten worse in the later decades.
An excellent supplement to Jim's interview is "The Thin Blue Line", Errol Morris' 1988 documentary on a Texas death penalty case. Available on Amazon as a download and a Netflix rental DVD. Also in some libraries, as it is considered one of top documentaries of it's time.
ReplyDeleteKen, a panel of judges is a viable alternative provided that they are objective and have complete control. However I am reminded of the panel of judges who in the year 2000 elected George W Bush President of the United States.
ReplyDeleteSeveral problems with a panel of judges:
Delete1) Most judges are former prosecutors, which creates a bias towards the prosecution, 2) Judgeships are political appointments, creating the problems with ideological selection we already have, 3) Many lower level judges are elected, which results in willingness to tilt toward the community prejudices. 4) In some states there is no requirement for legal experience before you can run for judge- I know of a specific example who was elected, and reelected even after being criticized by the state's Supreme Court.
In the abstract, judges could be more independent, and attentive to the facts of the case and the law, but I have my doubts practice would match ideals. What little experience I have had with the court system doesn't make me optimistic.
Tom, “The Thin Blue Line” is an excellent case in point. The prosecutor in this case, as suggested by director Errol Morris, knowingly pimped the real killer to finger Randall Dale Adams because the real killer was a minor and not eligible for the death penalty. Winning a death penalty case is a big feather in a prosecutor’s cap.
ReplyDeleteJim, there's no doubt that our courts, especially at the highest levels, are injecting political partisanship into their decisions. However, if we don't like the jury system — I don't — there doesn't seem to be an alternative. Perhaps you have one to suggest?
ReplyDeleteJim, congratulations to you for managing to help your cousin. While that is an excellent point you made about the panel of judges who elected Bush, in a court case I would still take my chances with just about any panel of judges instead of a random group of people off the street. In serving on three juries, I have seen fellow jurors fall asleep during testimony, say they are voting guilty because "I don't like his look," and want to drag things out as long as possible because of "the great pay."
ReplyDeleteThere is an old saying that the only people who serve on juries are those too dumb to find a way out of it. While I hope some jurors are very civic minded, as I like to think I was, my personal experiences make me wonder if the old adage about being too dumb to get out of it may be mostly correct.
Moto, I'd like to add my testimony to yours. I've been called 5 or 6 times. Never served — dismissed by a peremptory challenge every time. A couple of times I nearly made it through voir dire and so had time to size up the group that was likely to be empaneled. I think I could have sold a bottle of snake oil to any of them.
DeleteKen, one of my stints was a police brutality case. When they interviewed me I told them I was good friends with the police chief and had worked with local law enforcement in security consulting. The public defender offered no challenge and they put me on the jury anyway.
ReplyDeleteKen, Motomynd
ReplyDeleteAlso of like mind about our jury system is Mark Twain. Here are some of his observations:
We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read.
- 4th of July speech 1873
An ignorance so shining and conspicuous as yours--now I have it--go on a jury. That is your place.
- New York Weekly, 7/14/1873 (letter originally written to Josh Billings, 3/1873)
Our admirable jury system enabled the persecuted ex-officials to secure a jury of nine gentlemen from a neighboring asylum and three graduates from Sing Sing, and presently they walked forth with characters vindicated.
- The Gilded Age
The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago...I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers. But no doubt I shall be defeated--every effort I make to save the country "misses fire."
- Roughing It
On the inquest it was shown that Buck Fanshaw, in the delirium of a wasting typhoid fever, had taken arsenic, shot himself through the body, cut his throat, and jumped out of a four-story window and broken his neck--and after due deliberation, the jury, sad and tearful, but with intelligence unblinded by its sorrow, brought in a verdict of death "by the visitation of God." What could the world do without juries?
- Roughing It
The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.
-"Foster's Case," New York Tribune, 3/10/1873
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In terms of winning, Jury selection is by far the most important part of a trail. From what I’ve observed the procedure for selecting jurors favors the prosecutor. Allowing both prosecutor and defense attorney to alternately strike prospective jurors on the surface seems fair. However because to the jury pool is oftentimes biased to begin with in favor prosecutors and because prosecutors oftentimes have more information about prospective jurors that is not available to defense attorneys, the jury selection process greatly favors prosecutors.
Fixing this one aspect of the jury system would go a long way in solving the problem. Removing the jury strike procedure completely and allowing the only the judge to strike jurors biased by prior knowledge of the case or by knowing players in the case would favor fairness. Randomly seating the first 12 unbiased jurors would greatly take away the advantage prosecutors now have in jury selection and would be a giant step toward the fairness of the jury system envisioned by our founding fathers.
Thanks, Jim. Very entertaining Twain quotes.
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