Radley Balko Makes a Case for Bifurcated or Two-Part Trials

A couple years ago, I published a paper in the Cumberland Law Review in which I dealt with a theory of how hoaxes occur in the courts. Two examples I used were the infamous Duke Lacrosse case and the Grant Snowden case in Florida in which an innocent man was sentence to prison for "child molestation" that never occurred. (Janet Reno was the district attorney, and I only hope she burns you-know-where for the lies and false testimony her office suborned in that case.)

Snowden's guilty verdict was overturned, but only after he spent 11 years in prison, and the Duke case imploded after it became abundantly clear that the prosecutor, Michael Nifong, was lying. In both situations, the underlying crimes for which people were being charged never occurred in the first place.

We are seeing an abundance of these kinds of false accusations, especially for "child molestation." Now, everyone wants a real child molester to be punished, but what we have been seeing in the last 30 years is a real uptick in false accusations, something I have covered in previous posts.

Unfortunately, as Radley Balko notes in this article, jurors then are asked to make not one, but two judgments: (1) Did a crime actually occur? and, (2) Is the person accused the one who committed it?

I happen to believe that this problem is more serious than most people realize, but as I watch American prosecutors in action, I am convinced that more and more they are unable to discern between acts that actually occurred and those that are imaginary. Furthermore, it seems that the "experts" often are less able to make common-sense judgments about a situation than are outsiders.

Regarding one solution -- bifurcated or two-part trials -- Mr. Balko writes:

... during a panel discussion at the Georgetown Law Center last year (disclosure: I moderated the panel), (John) Lentini suggested one reform that may help defendants in these cases obtain a fairer crack at justice: bifurcated trials. Courts would hold an initial trial to determine if a crime was committed, then a second to determine who committed it.

The problem, Lentini explained, is that by asking the jury to answer both questions at once, jurors are nudged toward answering both in the affirmative. The fact that there's someone sitting in the defendant's chair can push jurors toward concluding that at least some crime was committed. Once they've determined there was a crime, the person on trial is often seen as the only—or at least most likely—person to have committed it. Furthermore, when it comes to arson and infant death cases, there's often just one likely suspect, and the presence of that suspect as a defendant implies that a crime was definitely committed. In arson cases, it's the person who was home at the time of the fire. In infant death cases, it's the person who was with the child at the time the child died.

Lentini added that these trials can then too easily become little more than judgments of a defendant's character; if the scientific evidence is a wash, the verdict may hinge on whether jurors believe the defendant is a good person, or a person capable of violence.

Indeed, I believe that this is a very important point. As we saw during the Tonya Craft trial, it became exceedingly clear that there had been no abuse at all, and as we watched the prosecution and its witnesses attempt to create new stories (or, to be more accurate, new lies), people increasingly understood that the LMJC had created a major hoax.

Would such trials work in a place like the LMJC? That is a good question. From what I saw during the Tonya Craft trial, "judge" Brian Outhouse desperately was trying to rig the proceedings to fit whatever the prosecutors wanted. I cannot imagine there even being an honest trial in that district, given what I know of all of the LMJC players. For that matter, even a bifurcated trial would require at least some honesty on the part of the prosecution, and that is not even a remote possibility in Northwest Georgia, as prosecutors there have no problem lying in court and suborning perjury.

Thus, I can imagine that even in a situation in which it is clear that no crime was committed, the LMJC players would find a way to get around the problem. In order to have a situation in which real justice can occur, the players in the system have to have at least some commitment to doing what is right, and that is not going to happen anytime soon in the LMJC.

Nonetheless, I believe that Mr. Balko has brought up an interesting and important idea, and I am glad to know that there are some people left who want to see fair outcomes in criminal cases.