Monday, September 13, 2010

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.


KC Sprayberry said...

Kind of makes me wonder if this is why LMJC has never elected to prosecute Bart Huskey. Of course, they never knew about his crimes, recorded by him and put all over the internet. He coached tennis at the recreation center for years and no one suspected he also attacked a young girl all that time. Huskey pled guilty in the federal prosecution but the state still has to try him. Oh, the only reason all of us know the evidence isn't manufactured? It was found by an investigator in Australia. Then it took the Australian investigators and FBI a long time to track down where the crimes actually occurred. Pretty much shocked everyone around here when the feds arrested him. But I don't think bifurcated trials will be the answer. The answer is taking away blanket immunity. It's not right for anyone to lie, no matter what the reason or who they are. A person in a position of authority who uses that position to put an innocent person in prison deserves far worse as their punishment.

Rob said...

Seems to me we already have something of a bifurcated system in most states: the Grand Jury is supposed to determine whether a crime has been committed before it returns an indictment. Maybe we need to reform the justice system by changing the Grand Jury system so prosecutors cannot "indict a ham sandwich" as the saying goes. Maybe Grand Jury proceedings should not be held in secret.

KC Sprayberry said...

You have a great point, Rob. Secrecy leads to the indictments we've seen where a minor charge multiplies into a laundry list of felonies. Just like constantly interviewing children as CAC/Greenhouse did led to more and more ridiculous accusations. Honestly, by the time the prosecution began to wind down their whole rhetoric, I thought they'd bring on another witness to claim the children saw her flying around her classroom, with or without benefit of broomstick. So long as a Grand Jury only hears one side of a case, they will produce indictments based on the information given. Okay, the defense attorney can't appear but his client might have to. This explains the system in a nutshell about who or what appears. Funnily enough, the explanation holds up the theory of a prosecutor being able to indict a ham sandwich and anything else.

Anonymous said...

@ Rob, you are right on. The problem is really the grand jury. They are the gatekeeper and were the intended citizen barrier between the government and a charge of a crime. But, let a government conduct a secret hearing and voila! The grand jury system is one sided, secret, and can return an indictment on inadmissible evidence. Once an individual is indicted their life is ruined, particularly in the molestation cases.

Trish said...

I totally agree, the way a grand jury is conducted needs to be changed. They only hear one side of the story, given by the DA and we all know that telling the truth of the matter is the last thing on his agenda!!!! I would say, if they were allowed to hear evidence from both sides, there would be a lot less false indictments!! And, for that matter, it would make investigators have to really work and do their job, to have solid evidence for those who really have committed a crime!! Now that is not to say, that innocent people won't still be prosecuted, but likely it would happen a lot less!!!

Anonymous said...

Rob, I agree the problem is with the grand jury, They need to hear both sides before making an indictment, They will tell anything to get it. It is sad but some people have no conscience.

Anonymous said...

The Grand Jury system HAS to be fixed. If they don't indict, they are pressured to do so. I've heard many stories about the antics pulled by DA's, especially in the LMJC. Very scary.

I'm a victim of a major crime & believe the bad guys should be put away. I also believe that when someone is guilty, the prosecution will have the evidence to prove it. I do not believe in all of the game playing to get indictments. Truth is truth & will prevail if the proper steps are taken. Prosecutors are just to lazy to do the ground work. It's easier for them to go to the GJ & say whatever they please, then they get to say, "hey, the GJ brought down the indictment & these are your peers". Every true crime has real evidence, it's just a matter of getting off their butts. Of course, grants & federal funding aren't offered for certain crimes, so it's easier for them to get the indictment, then push for the plea. Our system is terrible!

Btw, any word on James Combs' case? Would like to help in any way possible with he & his family.

Alyson said...

Saw this today on MSNBC.

Anonymous said...

That is really scary Alyson. The abusive tactics of the LMJC no doubt has resulted in numerous false confessions, meaning the real criminals can and are re-offending. It can't be comforting for the folks in CC to know that a 98% conviction rate means that the criminals who should be part of that 98% are still among them.

kbp said...


Thanks for that link.

The Garrett study may be of value in many instances, like even when a witness who is not a suspect is questioned by the police.

Anonymous said...

TC is doing her next show on grand juries. It would be interesting to hear a grand jurors perspective on how the TC case was presented to them. Are they allowed to talk after their term is over?

MikeZPurdue said...

The Grand Jury system is about indicting a person. What Prof Anderson is proposing is that an entity akin to a Grand Jury first decide if there was even a crime committed, and then proceeding to the next phase of indicting a perpetrator if the first phase concludes that there is enough evidence to believe that a crime was committed. I think this is a VERY good idea for cases involving allegations of child molestation. As Prof Anderson points out, all the members in the Tonya Craft jury were convinced that no child molestation ever occurred.

Anonymous said...

We understand what Balko was writing about & that's our point. We actually already have the "two-part" system in place, it has just been corrupted like everything else. The only difference is to have both sides tell their story to a jury, then have a decision. If we used the GJ system in the same manner, which is already in place, it would save taxpayers money & would get things a little closer to "real" justice.