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Ideas for a Better Justice System

August, 2013

I have written about our police, prosecutors and courts before, and often in unflattering ways. What we call a justice system is a mess, although not necessarily for the reasons many people think. Many people think the courts are too easy on criminals and so contributing to higher crime rates, even as crimes rates have actually been dropping. They seem to think that defense attorneys exist just to put guilty people back on the streets. The result is that, as a society, we are now willing to jail innocent people regularly, rather than risk a criminal going free. We used to feel that it was better to let a dozen go for a lack of evidence rather than imprison an innocent person. Now it appears that most people have the opposite sentiment.

Before adding a couple notes to what I have already written, and then a few suggestions for making the justice system better, here are three of those previous pages on the failures of our system, from another website:

Police Lie in Court

Wrongful Prosecution

Police Tricks

Guilt by Dislike

Television programs and movies that glorify prosecutors and make every arrested person appear to be guilty have changed our justice system. In their book, Mistrial, Mark Geragos and Pat Harris explain how the standards for convicting a defendant have changed as a result of a cultural shift in attitudes. Now, to get a conviction, it is enough for a prosecutor to make the jurors dislike the defendant and to prove that the defendant acted oddly.

As an example, they tell the story of Cynthia Sommer's case. Her husband died of a heart attack, leaving her a $250,000 life insurance payout. She spent some of the money partying and getting plastic surgery to enlarge her breasts. When it was discovered that her husband had high levels of arsenic in his liver, she was charged with murdering him. The prosecutor's entire case was based on the fact that "she didn't act right" for a grieving widow. This was certainly enough to make the jury not like her, but should not have been sufficient for finding her guilty. They convicted her in any case, after a string of witnesses confirmed that she did not "act right." after her husband's death. It was later discovered that the liver sample had been contaminated; that there was no arsenic. She spent two years in prison before she was released.

Is Defending People an Ignoble Profession?

Defense attorneys are seen as a necessary evil at best now, with people usually assuming that they are there to help criminals go free. Few people understand how many innocent people are sent to prison, and how the system has changed so that virtually everyone arrested is considered guilty. In fact, to be elected as a judge these days you usually have to have been a prosecutor, because voters want what they call "justice," which is apparently means locking a lot of people up for a long time. Defense attorneys are rarely elected, because they are seen as "soft" on crime. In their book, Mistrial, Mark Geragos and Pat Harris point out that even for all the lawyers elected as president of the United States, the last one who was a defense attorney was Abraham Lincoln, and they say, "If he ran today, he wouldn't even get out of the primary."

When prosecuting attorneys convict innocent people -- even knowingly -- they are forgiven by the public (not to mention that they usually face no professional or legal consequences either). Meanwhile, defense attorneys are seen as "sleazy" because they represent people who are sometimes criminals. This is a change from the days when Perry Mason and others on television and in movies presented defense attorneys as noble people who provide a valuable service. It is not a change we should welcome. It is an unpredictable and chaotic world, and we all are one minor misunderstanding away from being charged with a crime for which we are innocent. When that happens we might come to appreciate the services of a good defense attorney.

Changes in the Justice System

Yes it is important to put dangerous people behind bars. But it is also important to let innocent people remain free. With those goals in mind, here are some changes I think might help create a better system.

1. Eliminate prosecutorial immunity

Prosecutors have virtually unlimited immunity from prosecution for what they do on the job. They can lie and knowingly withhold evidence without fear of going to jail. This needs to change. Since we cannot read minds we cannot say with certainty when a prosecution is going forward for political purposes rather than a true belief in the guilt of the accused, but we can at least go after the prosecuting attorneys who do unethical and illegal things in the process.

2. Have three judges or professional juries

Judges make mistakes, and some judges are corrupted by money or, more often, by their own biases. Having a three-judge panel hear cases would eliminate most errors and corruption. Another alternative is to have professional juries. Having heard a number of cases these jurors would know when "expert" testimony is credible, and they would have a better feel for what is a just outcome.

3. Do more Jury sequestration

Most juries in big cases are tainted from the start. But let's at least not let them be swayed by the media in cases that are big news. Put them in a hotel without television.

4. Appoint judges rather than electing them

The election process means that judges have to rule according to what the public wants or they might lose their jobs. Justice is not about majority vote. Let's have judges appointed in some way that is less political (this will take some further thought to accomplish properly).

5. Tell jurors about jury nullification

Most people do not know that when they are on a jury they have the right to judge the law itself and the application of the law, and not just the technical guilt or innocence of the defendant. In other words, if the jury wants to find the grandmother who smoked a joint for her arthritis pain not guilty of drug possession by reason of bad law, they are free to do that. However, in almost all courts the defense attorney is not allowed to tell the jurors that they have this right. Let's change the law to allow people to know about this safeguard against bad law and questionable police priorities.

6. Punish prosecutors for hiding evidence or lying

Once we take away prosecutorial immunity we should also establish the practice of punishing prosecutors for lying or hiding evidence. They should lose their jobs for a while on the first offense in my opinion.

7. Use double-blind procedures for witness identification of suspects

Witness identification is not all that certain, and it is made worse by the subtle hints offered by police and prosecutors. Even a simple line-up should be viewed by a witness with officers who do not know which person is the suspect.

8. Allow the defense to test providers of evidence

Often lab tests are done in criminal cases with the lab technicians having full knowledge of the results they are looking for. This isn't very objective. If they can really determine from a bullet which gun was used, there is no reason they can't be given ten bullets, with no idea which is the one collected from the crime scene, and then asked to say if any of them came from a given gun. We might be surprised by how often they fail this test. The defense should be allowed to test the reliability of other procedures as well. If the expense is a problem let the defense pay for any additional testing. For example, if a crime scene investigator is going to testify about a blood-spray pattern, let the defense set up a couple test scenarios to see how well the investigator really can do his job. If the time is paid for, what complaint could he have? And if he can be easily fooled by a defense-arranged test, why should his testimony be trusted?

9. Eliminate jail time for victimless crimes

People will always want to punish people for behavior they don't like, so decriminalizing "crimes" that have no victim is not a realistic goal, but let's at least stop filling our prisons with these supposed criminals. Use fines and other civil punishments for drug users, prostitutes and others who engage in activities which are illegal despite violating nobody's rights. At least we will have a more civil society -- and a cheaper justice system.

10. Exclude dog evidence

The courts have been ruling in favor of allowing evidence obtained with the help of dogs. Now we have reached the point where if a police officer sets a dog next to your home or car and says the dog "signaled" something suspicious, the officer can enter without a warrant. No judge seems to seriously question what a "signal" is or even to look at the research which shows just how unreliable dogs are for sniffing out contraband. As a practical matter, having a dog handy now voids the constitutional protection against unreasonable searches, and allows searches anytime an officer wishes. We need to change that.

11. Fire prosecutors who convict innocent people

Mistakes are made, but shouldn't there be a limit when it comes to putting innocent people in prison? I recently read about a prosecuting attorney who said it was much more fun to convict an innocent person. He should be in prison for many years, but since that isn't allowed and most prosecutors will not admit to pursuing cases for political purposes, let's at least have a limit to how many times they can put innocent people away. If we can prove innocence in say, three cases where someone was successfully prosecuted by a district attorney, that guy loses his job forever. It's a serious a matter to have innocent people locked up, and prosecutors should face some consequence for doing so too often, even if it is by mistake.

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A Better Justice System