By Todd Newmiller
We know that wrongful convictions happen in this country. The most dramatic of these cases have been the relatively fortunate few who have survived years, if not decades, on death row before being exonerated by DNA evidence, but wrongful convictions exist from top to bottom in our badly damaged legal system. With a system that claims to presume innocence, this ought to be a source of adequate shame to drive reanalysis and reform. And yet the system continues to manufacture injustice, the machine stamping out the lives of three-dimensional humans into two-dimensional stereotypes and myths that fit the mold for conviction.
How can this happen in America?
Mark Twain writes in Roughing it, “The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury.” But the failure of the American legal system is not because of the stupidity of jurors, although the mechanics of jury selection have come to select for juror mediocrity.
Nor is the willingness of police and prosecutors to misrepresent the facts sufficient to undermine the integrity of the jury system—although police and prosecutors are certainly willing to deceive, if they believe such deception will result in conviction.
In cases of wrongful conviction, a single failure, a single corrupt official, or a single deception is rarely adequate to result in an erroneous judgment. Instead, diffusion of responsibility and cascading failures resulting from poor assumptions corrupt the system with an inversion of the principle of presumed innocence.
Rather than searching for the truth, investigators typically set out in search of suspects and charges, looking to build a case rather than determining unbiased fact. They can do this in good conscience, since they divorce the filing of charges from the conviction and punishment of suspects at trial.
Prosecutors, meanwhile, work on the assumption that the police are passing along good information, uncolored by bias, hurry, or lack of information. They believe their job is to prove the state’s case, not to determine facts or to promote understanding of the case.
Jurors, the last meaningful line of defense in a free society, reflect the culture out of which they are drawn. In a country ruled by fear, a nation in which authority is given in exchange for an illusion of safety, the well-known tendency of juries to convict, to seek to penalize someone for the horrible inconvenience of jury service, is bolstered by an unanalyzed faith in the trustworthiness of authority—the defendant must be guilty. Why else would the wise and beneficent state charge him? Certainly not as a result of a single act of bias or corruption, supported by bureaucratic incompetence, or political expediency, or moral indifference.
Finally, the judges that preside over criminal proceedings have become technicians that, at best apply legal precedent to decisions made at trial. Belying their job title, these custodians of bureaucracy serve the state with the maintenance of legal theatre, duty to justice subverted by the higher calling of excising human judgment from a mechanistic system primarily concerned with exercising its own power.
Determining the reasons underlying this disease process is a task beyond my abilities. Sphinx-like, the monolith of justice stands before me, ancient and powerful and indifferent to its own absurdly mismatched construction. Impressive monument that it is, real work still needs to be accomplished at the feet of this idol.
In pursuit of that end, I would suggest the following: changes in police and prosecutorial procedures to ensure that bad assumptions don’t go unchecked, expansive juror and citizen education focused on basic principles of American justice, stringent standards of evidence, the imposition of meaningful expectations of proof and meaningful deadlines on prosecutors. Lastly, and perhaps most importantly, I see no reason that police and prosecutors who knowingly and willingly pursue conviction of innocent persons (as evidenced by selective testing of evidence, misleading and deceptive presentation of evidence, willful disregard of contrary evidence, and the coaching of witnesses) should not be subjected to prosecution. Penalties for such should be in line with those penalties against the innocent party.
If justice is to mean anything in this country, the abuse of prosecutorial power ought to be seen and punished for what it is: the most dangerous kind of criminal act that can be committed in a nation of laws.