THE CSI EFFECT
By John J. Bradley
THE CSI EFFECT: A relatively new problem with justice in America has recently emerged. Most of what the public knows about the legal system comes from media reporting and the pseudo-documentaries 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. Simply put, “It just ain’t so.” The altruism we see in Cold Case Files; the intense investigation we see on CSI, SVU; 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 it is what should happen, but 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” when reaching a verdict.
Below are highlights of some of other, much more serious, flaws in the system that Justice On Trial, using contributions and grants, hopes to offer suggestions, and lobby for legislation, to improve.
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. (See the 2002 feature film, with Al Pacino, Hillary Swank, Robin Williams, “Insomnia” for a realistic depiction of this law enforcement mindset with truly disastrous results. Also read Pulitzer Prize winner Edward Humes’ “Mean Justice” to see how rampant, and dangerous, this can be in a community where it is nurtured, unchecked.)
The courts support 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” leaning in favor of protecting defendants’ rights.Can you imagine a trial where prosecutors actually presented exculpatory evidence, which, by the way, the law prescribes?
2. ARREST WITHOUT EVIDENCE: Officials can and do 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 are unable to verify 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. Some 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; avoid investigation of other suspects, and withhold exculpatory evidence to strengthen the case and validate that prophecy of guilt. 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 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. Our current client (see details on Mickey Thompson prosecution in the related posting, “PROPHECY OF GUILT”) has been in jail for 13 years, claims his innocence and has filed a 472 page direct appeal that his appellate attorney stated contained “prosecutorial misconduct, on an unprecedented scale.” It took nearly seven years to go to trial and has taken an additional six years for his direct appeal to be filed, much of the time spent demanding evidence that was withheld by prosecutors at trial.
With the assistance of Justice On Trial, a motion to dismiss was filed and the case was dismissed in Orange County, after nearly 2 1/2 years where it was first prosecuted unsuccessfully. The defendant served a total of 30 months without having been convicted or ever having a trial. Unfortunately, this case has still not been resolved fully and is not unique.
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 the majority of 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 the hapless defendant’s admission of guilt, regardless of claims of innocence, he will be offered the opportunity to plea to a lesser offence, 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 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 offence. 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
5. ESTIMATES OF INNOCENTS IN JAIL RUN TO 200,000 OR MORE: If that were true, what an outrage! But, it is. You may have heard that Barry Scheck, nationally known trial attorney, has headed up a similar non-profit organization, Innocence Project for several years. This group has been responsible for more than 300 cases overturned, some from death row, primarily based on DNA evidence. (Read “Actual Innocence” by Barry Scheck, for more information and some astonishing statistics on numbers of innocent inmates in U.S. jails). The U.S. has the largest inmate population of any country in the world, over 2 million. Because of the overwhelming numbers of wrongfully accused cases pending that involve exculpatory DNA, Barry’s organization and others like it are unable help those wrongfully charged or those crimes that do not involve forensic DNA evidence.Justice On Trial will specialize in this area of injustice.
The above points are only highlights of the massive problems within a broken
Justice On Trial has dedicated its resources:
To assist in avoiding conviction of those wrongly charged.
Read about Justice on Trial’s quest to correct a travesty of justice: FRIENDS OF MICHAEL F. GOODWIN