Never Trust the Judicial Process

It is impossible to trust the judicial process after reading this (via Radley Balko) and realizing that this kind of thing must go on all the time.  In fact, our heroes on TV shows engage in behaviors not much more honorable than this.  You can't watch a TV crime drama for five minutes without seeing police and prosecutors pressuring witnesses.  I was Castle the other day with my 12-year-old daughter (her favorite show, and being a Nathan Fillion fan I am happy to watch it with her) and as usual they were interviewing some suspect and she started doing what has become her habit in these situations -- she started screaming "lawyer -- get a lawyer" at the suspect.  Good for her.

  • Bearster

    Classic case of "compensation" (doing the wrong thing to allegedly mitigate a wrong elsewhere in the system, like letting the air out of three tires when you have a flat).

    You cannot fix a problem of crooked prosecutors and super-aggressive cops by instituting so many rules and regulations that a good lawyer could get an acquittal.

    If one had to predict the results (unintended, but of course) of this mashup: unsophisticated indigent defendants will be convicted of all sorts of crimes which they did not convict. And sophisticated wealthy defendants will be acquitted of all sorts of crimes which they did convict.

    And of course aggression by cops and detectives is itself compensation for the hatred they face every day (which is itself compensation for the unjust laws that outlaw "victimless crimes") and the procedural challenges that constantly defeat their efforts to put bad guys away.

    One wrong begets another wrong begets another wrong begets another wrong... and at each step, there are advocates who don't necessarily believe that wrong is right, but who do believe that wrong can compensate for wrong.

    I am reminded again that a free society tends towards being a rational society, and a rational society tends towards being a free society. An irrational society can neither have, nor get, liberty.

  • Gil

    Isn't there a "judging a real world situation by viewing a TV dramatisation equivalent"? It's like someone complaining "how can real life foresnics yield little helpful information when TV forensics is all-knowing?"

  • chuck martel

    Two issues are paramount in this fascinating and horrible tale. First is the incredibly intricate mechanism of the nomiocracy and its law enforcement agents. In centuries past, the number one goal of an individual upon waking was to maintain his hopefully favorable relationship with the deity or its representative on earth, the local priest, who administered morality and punishment. As secular society evolved and relationships were defined and interpreted by the state, the state's own priests, the members of the legal profession, constructed a new theology with the state as deity and themselves as its representatives. This theology was built in its primary form in legislative assemblies manned for the most part by the legal designers themselves but more importantly its convoluted judicial process can only be administered by them. They are priests in an arcane religious rite, deriving their substantial income and prestige from their ability to ruin the lives of the general population, just as Aztec priests selected those to be sacrificed on the apex of pyramids to appease their own gods.
    Secondly, it is never the goal of this diseased system to obtain justice. It is instead a vehicle for the personal ambitions of everyone from the rookie patrolman to the Supreme Court justice. These agents view their role in the legal maze as an opportunity for advancement. Rectification of an error is a setback to that goal. The study of bureaucracies indicates that the situation is unlikely to improve.

  • ElamBend

    My wife and I both love crime shows, and we are both apt to start yelling, "Lawyer, I want my lawyer"

  • John Moore

    Since the Judicial Process is administered by the government, it's sort of obvious that a Libertarian (and anyone else with common sense) would recognize that it doesn't work right all the time, or maybe even works poorly most of the time.

    A friend has suggested that one partial solution to aggressive prosecutors is a prohibition on the holding of public office by anyone who has ever been a prosecutor.

  • chuck martel

    A further consideration, and a serious one, is that in any legal confrontation involving the state, the state has for all practical purposes unlimited financial resources, unlike virtually all of their opponents, and has the capability of simply prosecuting them into penury. Of course, the expense of legal action in oppositon to the state goes to some other branch of the legal menagerie, so no matter who wins or loses, the legal profession always wins.

  • IgotBupkis, President, United Anarchist Society

    Chuck, indeed, it is as you say.

    In Gainesville, FL, in the late 80s, there was a comic book shop owner who was doing well enough that he had opened a second shop in another part of town. A mother came in with her 16yo son and he selected a "multipack" of older comics for a couple of dollars, which the mother then purchased at the counter. In that multipack was a DC comic called "The Score" which included a somewhat racy scene in it. Nothing one would not have found in a fairly tame R-rated movie of the time -- and which would have been in a PG movie in the mid 1970s, when standards were more lax. The mother found the scene, and was offended. Now, had she called the owner and complained, he would immediately have apologized, given her a refund, and checked all the multipacks for what was an inadvertent inclusion of marginally "adult" material.

    She didn't bother. She directly called the state attorney's office. They contacted the police, who sent in a 17yo shill to buy the same book. Note that I say the shill was *17*. Trust me, you can check for yourself -- there was nothing whatsoever in The Score which one could not find in any R-rated movie, which a 17yo can legally attend in the theater.

    After this, it gets better. The owner gets wind, somehow, that something is up. Calls the police and the DA's office to find out if there is any problem, if he should come in, and gets a "no" answer -- even as they arranged for a warrant for his arrest, and then sent out deputies to arrest him ON THE SPOT in his comic shop, publicly hauling him away in handcuffs, a deliberately intentional humiliation...

    He obtained an attorney. As I understand it, since the mother, not the son, purchased the books at the register, the initial complaint lacked standing. The use of a 17yo for the subsequent purchase further undermined the standing for the eventual arrest. They had no case whatsoever.

    They offered him a chance to "plea out". He was an ornery sort, and said, "no"... and so the case kept wending its way through the system, getting blown out of the water time and time again. They kept trying to get him to "plea out" to a lesser charge, and he kept telling them to Get Bent. As I understand it, in the final hearing before the judge, when he almost immediately tossed the case out, the judge even took the time to admonish the State Attorney's office -- on the record -- for wasting the court's time on such a frivolous and inappropriate case that should never have been carried through as far as it was.

    The State Attorney, thus, basically won. Because there is virtually no chance to prove vindictive prosecution here, even though the only real reason for carrying it through is that, by having the judge toss out the case, the DA's office got to write it off rather than call it a "lost case". In the meanwhile, the taxpayers spent tens, if not hundreds, of thousands of dollars pursuing a ludicrous and stupidly frivolous case. The comic book shop owner spent $50k defending himself, and had to close one, then later on, the other, of his two shops.

    When you hear about rage killings, I kinda wish this kind of bastard DA got it more often. It would put the fear of God into some of these government bastards to make them realize that they aren't as untouchable as they believe.... But all too often it's only some lunatic idiot like Jared who just kills people who have nothing whatsoever to do with any of the kind of real BS that goes on in our society. :-S

    No, I'm not advocating that... but if it's going to happen, it would be a Good Thing if at least the right targets were struck at... SOBs who misuse the power entrusted to them for personal gain.

    I think we could stand to have more cases of that, though. It's getting awful close to the time when someone needs to start hanging the bastards...

  • tehag

    I see you didn't read "Until Proven Innocent."

    I hope my plumber is more honest and has more professionalism. And my electrician.

  • mahtso

    “…it’s sort of obvious that a Libertarian (and anyone else with common sense) would recognize that it doesn’t work right all the time, or maybe even works poorly most of the time.” All true Scotsmen would also see it.

    I was reading a blog by a criminal defense attorney in which he and other atty’s acknowledged a double standard: when a police officer (or prosecutor) is charged, the defense atty’s assume that they are guilty despite sharing the view expressed in this thread that the system is broken.

    I do not believe that the system is as bad as this thread would make it out to be. The focus here seems to be false positives (i.e., convicted but innocent), whereas I suspect that most of those convicted are guilty (true positives) and that a bigger problem is the false negatives (not convicted but guilty).

  • me

    @mahtso

    Interesting assumption. That would raise the question of why Americans are so much more criminal than, say, Australians or Canadians (factor of 7 in prison population per capita - see here for some hard data: http://www.nationmaster.com/graph/cri_pri_per_cap-crime-prisoners-per-capita)

  • IgotBupkis, President, United Anarchist Society

    @me: Q -- what would the prison population be like if you removed all the criminals convicted of "crimes" libertarians don't believe should be crimes at all?

  • JoeBloe

    @mahtso

    "Better that ten guilty persons escape than that one innocent suffer" - Sir William Blackstone in "Commentaries on the Laws of England"

    Enshrined in western law is the principle that we must accept large numbers of false negatives in order to protect ourselves from tyranny of the courts. It's also well established in the hearts and minds of the Western populace, and that's why you see this focus on the wrongful conviction of innocents.

    Would you honestly have it differently?

  • mahtso

    me, I’ve heard that the reason is the number of people convicted of drug related offenses in the U.S.

    Joe,

    My point was based on my assumption that the number of guilty but not convicted far exceeds the number of innocent but found guilty and, consequently, by sheer weight of numbers, it is the bigger problem.

    I’d say Sir Blackstone’s statement reflects a general aspiration, but I don’t think it necessarily follows that improving the conviction rate of those actually guilty means that more innocents will be convicted.

    If we assume Sir Blackstone was expressing more than an aspiration: What is so special about the 10 to 1 ratio? At what point do we say we cannot tolerate allowing criminals to walk free to ensure that no innocents are jailed? If we knew that 20 were going free for each innocent staying out of jail, would that be too many? 5,000 to 1? 100,000 to 1?

  • JoeBloe

    Ben Franklin allegedly preferred 100 to 1, but there's clearly a point at which we have to accept some error in the process. But the most important part is to get straight the idea that we accept the idea of setting guilty people free in order to avoid prosecuting innocents.

    It all comes down to the incentives, and currently the incentives are for prosecutors to convict _someone_. It doesn't really matter who they convict, since they can blame rising crime rates on someone else. Prosecutors are judged primarily on their conviction rate, not on the number of "just" outcomes.

    Unfortunately, I can't think of a way to fix the incentives at that level.

  • markm

    JoeBloe: One thing that would help would be to require candidates for the judiciary who were prosecutors to also have a substantial track record as a defense attorney.

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  • Gaunilo

    It is also indisputably true that a large number of those in prison are in fact guilty, but would not have been convicted if the state had in fact been required to prove that a crime was committed, and that the defendant committed the crime beyond a reasonable doubt.

    In most cases there is never a case presented because of plea bargains, and in those that are tried overworked or under-skilled appointed attorneys never truly make the state make the case.

    It would shock most of us that many defendants make the same basic decision on felony cases that most of us make on traffic tickets--I'm not guilty or I know they cannot prove the case, but given the reality of my choices, it is better to plead guilty than face the true costs of defending myself.