I often hear it asserted that the US has the best system of justice in the world. Often we arrive at this conclusion based either on our own prejudices and biases, but also in comparison to non-democratic nations around the world.
Having watched our system of justice in action for the last two and a half years, I have no such illusions. I think the adversarial system does us far more disservice, in the interest of justice, than service. The job of the prosecutors as representatives of the “people” ought to be dispensing justice rather than winning cases.
The Wrongful Convictions Blog put together by lawyers and law professors across the nation and around the world has put together an informative site that examines wrongful convictions across, not only in the US but throughout the world.
On Monday, they posted an article that illuminates the research of UC Irvine Professor Ronald Huff. It was Professor Huff’s work in the early 1980s that “helped spur greater international interest in wrongful convictions.”
His latest work argues that “police and prosecutorial misconduct may be worsened by the adversarial system used in the United States and some other countries.”
In a book co-edited with Martin Killias from the Universities of Zurich and Lausanne, entitled Wrongful Conviction: International Perspectives on Miscarriages of Justice, Professor Huff argues that official misconduct “appears to be less frequent in European nations with the continental/inquisitorial system than in the U.S.”
When it comes to prosecutorial misconduct, Huff said, “a key factor differentiating U.S. prosecutors from most European prosecutors is that U.S. prosecutors are elected, which introduces a strong political element in their motivations, and the fact that sanctions for such behavior are extremely rare.”
Professor Huff said that “the adversarial system, with its greater emphasis on competition between the prosecution and the defense than exists in inquisitorial system often adds to the problem.”
“However, neither system is perfect,” Professor Huff cautioned, noting that increased public pressure to punish criminals has led prosecutors to “behave more like adversarial prosecutors bent on convictions, and since the defense is not expected to conduct its own investigations, this does not make for a level playing field.”
We stumbled across a piece on the case of Amanda Knox written by an attorney, Dan McCarey, writing in the Springfield Patch.
He writes, “The next time we find ourselves complaining about how our American system of justice is flawed, let us remember the Amanda Knox travesty that played out over the last four years in Italy.”
“As a lawyer, I see our justice system in action on a daily basis. Is our system flawed? Yes it is. There is no doubt about it,” he continues.
He points to cases like OJ Simpson and Casey Anthony, where Americans were outraged by the presumption of innocence.
He argues, “The presumption of innocence is a right afforded to all Americans in our court system and something which Amanda Knox was clearly not given at her first trial.”
This is all fine until he argues, “I can say with some certainty that Amanda Knox would not have been convicted in the first place (based on the evidence the prosecution put forth), had she been tried for the same crime in America. First, the evidence gathering was flawed. Key DNA samples were contaminated and investigators did not follow standard protocols when gathering evidence at the crime scene.”
Somehow and rather remarkably he ignores the fact that, in fact, this type of problem, if not a regular occurrence in America, happens frequently enough to draw concern.
It is only in perhaps the past ten years we have become cognizant of the problems in forensic analysis. Pro Publica, the non-profit New York company producing investigative journalism, has noted the lack of licensing of forensic pathologists who make the critical determination of cause of death. Also, the Innocence Project has noted the lack of standardized techniques for things as basic as eyewitness identification and even fingerprint analysis.
Countless cases have been thrown out for precisely the reasons that Mr. McCarey notes and there are probably far more examples of problems that we simply do not know about because of the lack of DNA evidence in the predominance of cases.
He continues, however, “Additionally, here in America, a prosecutor with the suspect-at-best background which Giuliano Mignini, the Italian prosecutor in the Knox case had, would never have been allowed to try such a high-profile murder case.”
He adds, “In America, when an attorney is facing the type of charges Mignini is facing, i.e. abuse of office and abetting in a murder case, an appearance of impropriety is imputed on the attorney. Under no conceivable circumstance would the local prosecutor’s office in America have allowed someone with the type of questionable ethics and charges pending against them as Mignini did, to try a murder case like this.”
It is an interesting point. But we have to wonder how much different that really is from the case of John Thompson who was scheduled to be executed after serving 18 years in prison and 14 years on death row, for a robbery and a murder that he did not commit.
Indeed, it was only because a private investigator discovered, a month before his scheduled execution, that prosecutors had hidden evidence that would have been exculpatory, that Mr. Thompson was not executed.
Indeed, it was determined through a civil lawsuit that the Supreme Court ultimately threw out that the Orleans Parish District Attorney’s Office, which had been led by Harry F. Connick and had engaged in gross indifference to the incompetence of prosecutors who violated the rights of Mr. Thompson.
Reported the New York Times last year, “The lawyers had kept secret more than a dozen pieces of favorable evidence over 15 years, destroying some.”
In a separate article they report, “The blood evidence would have proved Mr. Thompson innocent of a 1984 armed robbery. Soon after he was convicted on that charge, prosecutors tried him for an unrelated murder. After the failure to turn over the blood evidence came to light in 1999, prosecutors dismissed the armed robbery charges. A state appeals court later reversed the murder conviction, reasoning that Mr. Thompson’s armed robbery conviction had dissuaded him from testifying in his own defense in the murder case. In 2003, Mr. Thompson was retried for the murder and found not guilty.”
In fact, it was a pattern of misconduct by Mr. Connick’s office, as the Innocence Project in New Orlenas found, that in 9 of 36 death penalty convictions that occurred during Mr. Connick’s tenure as chief prosecutor, his office suppressed exculpatory evidence.
The New York Times called it “one of the worst records in America on that score,” but added, “The New Orleans district attorney’s office is by no means alone in its failure to ensure justice in capital cases. Failure to turn over evidence is a chronic problem.”
They add, “Its consequences are magnified by the government’s advantage over the inexperienced and inept defense lawyers who are often assigned to indigent defendants. Many of these violations are exposed. Many other instances may never be uncovered.”
Even in dismissing the case, Justice Clarence Thomas wrote for the majority, “The role of the prosecutor is to see that justice is done.”
He added, “By their own admission, the prosecutors who tried Thompson’s armed robbery case failed to carry out this responsibility.”
In her dissent, Justice Ruth Bader Ginsburg wrote that “no fewer than five prosecutors” were complicit in a violation of Mr. Thompson’s constitutional rights. “They kept from him, year upon year, evidence vital to his defense.”
So, while Mr. McCarey can point to a system in Italy that allows for the expansion of penalties for defendants during their appeal process, the US has capital punishment, which “has put many innocent people on death row.”
The bottom line is that Mr. McCarey is naïve to believe the Amanda Knox travesty could not have happened here – it may not have taken the exact same form, but we have countless examples equally indifferent to justice and wrapped in corruption.
—David M. Greenwald reporting
The most fundamental problem with arguing justice systems is that we all have different interpretations of the word, “justice.”
“However, neither system is perfect,”
Only a complete fool would argue that any justice system is perfect. And cherry-picking select cases from any country’s justice system is hardly a persuasive argument either. Cases chosen to reinforce a pre-determined writer bias is a waste of time for any reader.
The cherry-picking continues when we compare certain parts of a justice system, while ignoring the greater whole, politically, demographically, and economically. If you want to self-assess and compare, ask yourself this question: Suppose you were arrested for armed robbery in the United States. Suppose you were arrested for the same crime in (pick a country). Which process would you feel as having a greater chance of acquittal?
None of these remarks should be taken as saying our justice system is not worthy of continuous critical review and quest for change.
Phil Coleman
“The cherry-picking continues when we compare certain parts of a justice system, while ignoring the greater whole, politically, demographically, and economically. If you want to self-assess and compare, ask yourself this question: Suppose you were arrested for armed robbery in the United States. Suppose you were arrested for the same crime in (pick a country). “Which process would you feel as having a greater chance of acquittal? “
I feel that this is asking the wrong question and is representative of the problem of our adversarial way of thinking. The question should not be
“Which process would you feel as having a greater chance of acquittal, or of conviction” but rather, which process has the greater chance of determining the factual truth of what occurred ? Is that not the foundation upon which the more subjective concept of ” justice” must rest ?
“Having watched our system of justice in action for the last two and a half years, I have no such illusions. I think the adversarial system does us far more disservice in the interest of justice than service.”
Let’s take care in using the Vanguard’s reporting of the Yolo County justice system events to draw any conclusions about justice in America.
Any problems in the system mean the danger of killing an innocent person in the name of justice. We ranked fifth in the world last year in number of state-conducted executions, following the some of the worst societies in modern times. Time to stop this.
[quote]I often hear it asserted that the US has the best system of justice in the world. Often we arrive at this conclusion based either on our own prejudices and biases, but also in comparison to non-democratic nations around the world.
Having watched our system of justice in action for the last two and a half years, I have no such illusions. I think the adversarial system does us far more disservice, in the interest of justice, than service. The job of the prosecutors as representatives of the “people” ought to be dispensing justice rather than winning cases.[/quote]
So what country has a “better” system? And what “better” system would that be?
When the principal duty of the D.A. is to generate funding, through prosecution of selected crimes, justice is bound to take a back-seat . Most D.A.s in California are committed to getting as much grant funding as they can . That means convicting gang members and drug dealers . Suddenly, every case that they can’t shape into one of those selected crimes gets short shrift and a kid smoking a joint behind the AM-PM becomes Tony Montana . We gave them an election time gift a few years ago, so now we watch the three strikes enhancements roll in right before re-election day .”I’m tough on crime and through my tireless efforts to convict evil-doers, I have generated umpteen million dollars in federal grants .”, sounds better than, ” I saved a few bucks by not prosecuting misdemeanor drug crimes and stopped my assistants from hiding witnesses and burying evidence . “
“So what country has a “better” system? And what “better” system would that be? “
At least for me that’s not the most important question. The most important question is what things work elsewhere better than they work here and how can we improve upon what we do.
[quote]At least for me that’s not the most important question. The most important question is what things work elsewhere better than they work here and how can we improve upon what we do.[/quote]
Okay, so what works better elsewhere that could be instituted here?
“I often hear it asserted that the US has the best system of justice in the world. Often we arrive at this conclusion based either on our own prejudices and biases, but also in comparison to non-democratic nations around the world.”
If none is better, I guess that resolves the question posed by this article. We arrive at this conclusion based on that fact.
Actually, we’re in the process of continuous improvement–better investigative techniques, Project Innocence movements, less tolerance of bad actors in the system, improved communications, federal civil rights laws and investigations, etc. all make our system even better.
Even the article cited doesn’t suggest a better alternative is operating in the two democracies. Having elected prosecutors is a known problem. Getting rid of them is one more improvement that will continue our record as the best, fairest system in the world compared to ALL others.
“Okay, so what works better elsewhere that could be instituted here?”
That would be my hope. Or at the very least make what we do here work better.
David, you didn’t answer Elaine’s question……
[quote]That would be my hope. Or at the very least make what we do here work better.[/quote]
What specifically would be your hope? You are critical of our system, seeming to indicate there is something better out there. If there is something better out there, what exactly is it? And could it be implemented here?
The two major problems I see with our justice system are:
1. The District Attorney’s are voted in so they need to be very political. Counting up ones “wins” or convictions makes for good political ammunition….See how tough on crime I am…. Unfortunately, this can muddy the water when it comes to justice.
2. There is no “real” accountability for misconduct. The Innocent Project along with Santa Clara University published research last year that showed over the past 10 years in California, the appellate courts found over 700 cases of harmful misconduct. Yet, only 1% ever had any kind of disciplinary action taken. And of those, only one prosecutor lost his license for a year.
When the accountability is almost non-existent, and the conviction rate becomes politically important, it becomes tempting to cross the line.
To the suggestions so far about de politicizing the DA position and establishing accountability, I would add a couple of suggestions while still staying within the adversarial system since it appears there is no hope for ever doing away with it:
1)Have a pool of lawyers who specialize in criminal law. These lawyers would be expected to be expert in both prosecution and defense.
Assignments would be alternated so that every other case was either prosecution or defense. This would eliminate the possibility of building one’s carrer by being “tough on crime” but on the proficiency with which they built and represented their cases.
2)prosecution and defense would be given exactly the same information and evidence at exactly the same time.
3) No drama with presentations. Nothing but the facts, ma’am in front of a jury.
One way the system would be more fair is if defendants were given the same amount of money for their defense that the prosecution gets to spend on prosecuting them.
“The job of the prosecutors as representatives of the “people” ought to be dispensing justice rather than winning cases.”
Cannot the same be said of the defense?
David, you point out there are many instances of prosecutorial misconduct. What about misconduct by the defense? Misconduct by either side should certainly be identified and reduced as much as possible.
A good point is raised that there may be political pressure to convict (or perhaps in some specific cases to acquit). Certainly it is the responsibility of the defense to pinpoint where the prosecution’s case has holes. If the political pressure is felt also by the judges; I would agree there is the possibility for systematic bias to the side of the prosecution…to what extent are judges shielded from such political pressure?
I don’t know about misconduct per se. The bigger issue is called ineffectual defense and that plays a huge role in wrongful convictions.
You still haven’t answered my question… what system is better and where is it located?
Elaine: Why does it matter whose system is best. We know their are problems with ours. Why can’t we concentrate on strategies to fix the problems we see like prosecutorial misconduct or misconduct by defense lawyer too. We shouldn’t set rules, and then allow those who represent the law break them.
Politicizing the legal system causes issues too.
My previous comment should have said, “there” instead of “their.” I hate when people mix up their and there.
David, are you ever going to answer Elaine’s question?
I will but it’s a lengthy question and I don’t have a quick answer right now and I’m tracking down other stories at the moment.