The Few Good Apples

One of the regular criticisms I receive on this blog is that I am much too hard on cops and prosecutors. Yes, people argue, there are "a few bad apples," but most cops are honest and most prosecutors only want justice.

I wish that were true. I mean that. I believe that both police work and the roles of prosecutors are honorable. Furthermore, I have known people in both professions who fit the "honorable" category and spent time recently with a state police officer who is an investigator and who clearly has a moral compass, which he uses in his work.

Unfortunately, as Radley Balko notes in this article, the INSTITUTIONAL framework for police in this country has become something that creates incentives not only for bad behavior, but also for looking the other way when faced with wrongdoing by other cops. Writes Balko:

A few years ago, I attended a conference on the use of police informants. In one session, the "Stop Snitchin'" movement, which discourages African Americans from cooperating with police, came up. I was astonished to hear one hip-hop artist and activist say he would not cooperate with the police even if he had witnessed the rape and murder of an old woman in broad daylight. He just didn't trust the police. I told him his position was absurd: Whatever his concerns about the police when it comes to the use of drug informants (concerns I share), they shouldn't prevent him from cooperating with the investigation of an innocent person's murder. His response: "Isn't the Blue Wall of Silence really just the most successful Stop Snitchin' campaign in history?" (emphasis mine)

He gives some examples that are right out of Orwell with the ubiquitous "internal affairs" departments investigating people who stood up for the right thing. (For that matter, the original police officer in the Duke Lacrosse Case, a Sgt. Shelton, was adamant that Crystal Mangum's story was false. His reward? He was investigated by Internal Affairs. Why am I not surprised?)

This is a most depressing article, for it lays out the unthinkable: America's police departments now are run by people who stand up for what is wrong and do everything they can to crush honesty and decency. Most of the barrel is rotten.

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.

It Doesn't Get Much Worse Than This

During the erstwhile Duke Lacrosse Case, Joe Neff from the Raleigh News & Observer helped carry the day. In the early days of the affair, the N&O drove the coverage in a dishonest, smarmy way, with one of its resident leftists, Samiha Khanna, writing most of the copy.

However, the adults soon took over and Joe Neff from late spring until the end of the case compiled an extremely impressive list of articles that ultimately exposed the case for the sham it was. Since then, Neff has written a series of article on the scandal that has engulfed the North Carolina "justice" system involving the State Bureau of Investigation (SBI) crime lab, a place where "forensics" often was a sham and where employees tricked the results in order to help prosecutors gain convictions.

If you wish to get a good sense of what happened, read the series in the N&O, as well as Radley Balko's excellent Reason crime column. Balko writes:

A stunning accompanying investigation by the Raleigh News & Observer found that though the crime lab’s results were presented to juries with the authoritativeness of science, laboratory procedures were geared toward just one outcome: putting as many people in prison as possible. The paper discovered an astonishingly frank 2007 training manual for analysts, still in use as of last week, instructing researchers that “A good reputation and calm demeanor also enhances an analyst's conviction rate.” Defense attorneys, the manual warned, often “put words into the analyst's mouth to try and raise inaccuracies.” The guide also instructs analysts to beware of “defense whores”—analysts hired by defense attorneys to challenge their testimony.

Indeed, it was that same mentality shown by prosecutors in their "win at all costs" (the main cost being the truth) in the Tonya Craft trial that led Chris Arnt and Len Gregor to tell a jury that highly-respected defense witnesses Dr. Nancy Aldridge, Dr. Nancy Fajman, Dr. Ann Hazzard, and Dr. William Bernet were nothing but "whores of the court" and people who "lied for pay." At the same time, "Alberto-Facebook" and "The Man" expected people to believe that the poorly-trained and educated, giggling, eye-rolling, sighing, and shoulder-shrugging charlatans at the local Children's Advocacy Center were crackerjack experts.

Why do these things occur? They occur because the legal system protects the criminals within it. Suborning perjury, tampering with evidence, forging documents, and lying in official documents all are crimes, yet no matter how egregious the violations of the law, no prosecutor (and usually no cop) ever is in danger of facing the bar of justice.

In short, prosecutors run the system, and judges (most of whom are former prosecutors) go along with the crimes, and then make rulings that protect all of the wrongdoers from punishment. As a woman at the Georgia State Bar told me, all of these things are just examples of prosecutors "doing their jobs," and she approved of everything I just have listed.

As I have read through the years of example after example of prosecutorial misconduct, I have come to realize that there really is no more hope for the system. The defense bar has been emasculated, and innocent people are convicted each day as prosecutors run about like wild animals. Indeed, if you want to find a group of criminals in the LMJC, don't go to the local jails; just go to Buzz Franklin's office.

While North Carolina claims to be trying to "reform" the system, one cannot "reform" anything when the prosecutors are in charge. The only way there can be any meaningful reform in American criminal justice is to end immunity for prosecutors, police, and judges. If the rest of us have no immunity, and we continue to do our jobs, then why should this class of people be protected from having to obey the law?

As I go through the various links demonstrating misconduct on behalf of prosecutors around the country, I come to realize that nothing is going to change. We see a charlatan like "dentist" Michael West testifying for prosecutors and helping to win convictions, even though all prosecutors who use West know that he is a fraud. Radley Balko explains:

I’ve written extensively on West over the last few years, most recently in a feature about the 1992 Louisiana murder trial and eventual conviction of Jimmie Duncan. In that case, I obtained a video showing West repeatedly jamming Duncan’s dental mold into the body of the young girl Duncan was accused of killing. Forensic specialists say that what West does in the video isn't a remotely acceptable method of analysis, and may amount to criminal evidence tampering. Duncan is on death row in Louisiana, based in part on West's analysis.

The whole thing is so outrageous that one does not wonder why West is not behind bars, but even today, prosecutors in Mississippi seek out the services of this lying charlatan and the disgraced "forensic pathologist" Steven Hayne. (I am sure that both men would be welcomed with open arms in the LMJC both by prosecutors and judges. Liars and charlatans feel very, very comfortable around each other. Maybe they can have a group hug.)

In a country where people actually cared about justice, men like Arnt, Gregor, West, Outhouse, and many others would be looking for honest work or would be sitting in the crowbar motel. Instead, they draw large salaries on the public till, lie in court, present false evidence, send innocent people to prison, and are touted in the local press as "heroes."