IS JUSTICE BLIND OR BRAIN DEAD?

The trial is perceived as a forum to discover the truth of an issue, with a judge as a sort of referee. It is not. We all believe the justice system protects us from scofflaws and protects our rights. Consider:

1. THE IRRELEVANCE OF INNOCENCE: The “presumption of guilt,” not innocence, tracks defendants throughout the system.  Imagine law enforcement arresting those they “presumed innocent.”  In virtually all arrests, law enforcement makes a “prophecy of guilt,” early on, then ‘develops” appropriate evidence to prosecute and convict.

The courts support a prosecution for conviction, not exoneration. Prosecutors are paid to convict, not acquit.  Most judges are former prosecutors and are not, as is the common misconception, neutral “referees” officiating in trials and forums to discover the truth of an issue, leaning in favor of protecting defendants’ rights. Can you imagine a trial where prosecutors actually presented all exculpatory evidence, which, by the way, the law adamantly prescribes?

2..ARREST WITHOUT EVIDENCE: Officials can arrest on no, or flawed, even fabricated, evidence.

Affidavits are sworn under penalty of perjury, so judges, relying upon the honesty of law enforcement and prosecutors, approve such documents without corroboration.  Judges cannot verify the evidence in a “sworn officer’s” affidavit.  There are evidentiary requirements for arrest, search and seizure, and preliminary hearings.  However, they are based upon the premise that officers of the law and courts will rise to these standards of law voluntarily, accurately, and truthfully. Many do not.

Frequently, in cases where there is little or no evidence, the “instincts and experience” of law enforcement point them to a suspect early in the investigation. To validate these de facto “declarations of guilt,” officers and/or prosecutors “fudge” evidence to arrest and prosecute so conviction becomes, in effect, a self-fulfilling prophecy of guilt.  Officials “amplify” weak evidence; falsify forensics that would be difficult for the defense to verify; manipulate witness testimony, often committing perjury themselves with virtual impunity (officials refer to police testimony as “testi-lying”); avoid investigation of other suspects; and withhold exculpatory evidence to strengthen the case, validating their prophecy of guilt.

These practices are widely accepted, and the courts tend to overlook such malfeasance with rulings that are only an official “wink, wink” if it helps convict, especially those viewed as “worthless” and/or “a danger to society.”  Once this declaration is made, officials rarely admit malfeasance or incompetence, even if evidence is developed exonerating the defendant.  Prosecutors are often reluctant to reverse their convictions even when presented with incontrovertible DNA or other evidence exonerating a convicted defendant.

3. YEARS OF INCARCERATION WITH NO TRIAL: Routinely, defendants, many who present no danger or the very remote possibility of flight, are held without bail or under clearly unaffordable bail for years.  “Speedy trial” is another fallacy of the American Judicial system.  The more serious the crime alleged, the longer it will take the defense to prepare for trial.  Therefore, the more quickly a trial occurs after an indictment or preliminary hearing, the greater the possibility of conviction.  The reasons are manifold; prosecutors delay getting key discovery to the defense; the defense investigation must verify the law enforcement investigation, which is often flawed or worse; innocent defendants are restricted to actual facts, prosecutors and guilty defendants have no such restrictions; prosecutors omit relevant, exculpatory evidence and/or hide it in a massive “paper dump” that only qualified legal professionals, familiar with the details of the case, at high rates of pay, can sort through over many hours, weeks, months.

4. MYTH OF INCREASED CONVICTION/DECREASED CRIME RATE:  Statistics, like holograms, look a little different from every angle.  About 85% of “convictions” in the U.S. are not really convictions at all. Ostensibly, to save the courts’ time and money, in collaboration with law enforcement, prosecutors “over-charge” defendants.  That is, in most criminal cases, the defendant is charged with more serious crimes than there is evidence to support.  Law enforcement then persuades the defendant.

A.That sufficient evidence does exist, when most often it does not; that he will be charged and almost certainly convicted with a long sentence.

B. If he goes to trial, it could take years (it will) and should he lose and appeal, he could spend many years in jail (he would) and still be sentenced at the highest end of the sentencing standard, without “time served” being counted because he was uncooperative by not accepting the plea bargain.

Then, for a hapless defendant’s admission of guilt, regardless of claims of innocence, he will be offered the opportunity to plea to a lesser offense, carrying a lighter sentence, usually with “time served” counted.

This is a “Plea Bargain,” not a conviction; defendants waive their right to a trial.

Therefore, without a trial and to avoid extra years in jail, many of whom claim innocence accept such plea bargains. In fact, many of the serious crimes that are plea-bargained have not really been solved. Countless defendants, later proven innocent, had accepted negotiated convictions.  Estimates by legal professionals run to 10% or more wrongfully convicted, and advocacy organizations such as the Innocence Project have exonerated hundreds. Tragically, when an innocent person accepts a plea bargain, the criminals who actually committed the crimes are still at large.

All prosecutors erroneously claim these plea bargains as convictions.  It is not done to save the courts’ time and money, as officials claim, but to make the job of law enforcement and criminal prosecution easier and to make “conviction” and crime statistics look more positive and impressive.

By reducing charges in a plea bargain, the seriousness of the crime committed/solved is officially diminished, often from a felony to a misdemeanor. The original, more serious crime is “solved,” and the case is listed as a prosecution/conviction on the lesser offense.  Depending on the spin needed, prosecutors cite increased convictions overall and/or fewer serious crimes prosecuted.

Those believing that their innocence will lead to acquittal are naïve and find, too late, of the irrelevance of innocence in today’s American system of justice.

5. ESTIMATES OF INNOCENTS IN JAIL RUN TO 200,000 OR MORE: You may have heard that Barry Scheck, a nationally known trial attorney, has headed up, with attorney Peter Neufeld, a non-profit organization, Innocence Project, since 1989. This group has been responsible for 375 cases overturned, 21 from death row. Over the years, the successes of Scheck's Innocence Project have spawned many other such nonprofit organizations around the U.S.  The U.S. has the largest inmate population of any country in the world, over 2 million. 

6. THE CSI EFFECT:   The "CSI: Crime Scene Investigation" series began in 2000 and has created a problem with trial justice in America. Most of what the public knows about the legal system comes from media reporting and pseudo-documentaries like the CSI series that purport to depict law enforcement realistically. Known collectively as the “CSI Effect,” the phenomenon affects not only trials but also the public’s perception of what happens in criminal investigations. But, “It just ain’t so.” The altruism we see in programs like Cold Case Files, the intense investigation we see on CSI-like shows, and the reluctance of prosecutors and judges to pervert the legal system we see in “Law and Order” is “creative license” taken by teleplay writers and, although it is what should happen, it rarely does.

Legal professionals are concerned at the heavy influence of these semi-fictional dramatic presentations on the outcome of trials where “CSI expert” juries base their verdicts on their own “forensic evaluations” of the evidence. In effect, jurors who rely on the “expertise” acquired by viewing TV crime programs are overruling the expert forensic witnesses. Courts, though they should, rarely instruct juries to disregard their “TV crime-busting experience,” fanciful at best when reaching a verdict.

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