Thursday, February 15, 2007

Conservative Comments on American Criminal Justice

There has been a nine hundred pound gorilla loose in the Oklahoma criminal justice system ever since John Grisham's first non-fiction book, The Innocent Man, was released. While a lot of people in the system are still walking around the courthouse swearing that the emperor's backside is not showing, a lot of Americans, even conservatives, are being sickened by what they see in the American courts. The Nifong case in North Carolina is a perfect example. However, the silence of Oklahoma attorneys concerning the Grisham book is understandable. The Oklahoma Supreme Court has suggested in a written opinion that it was poor judgment for an Oklahoma attorney not to "show indignation and castigate" another attorney who suggested that something might be amiss in the criminal justice process. Oklahoma Supreme Court Justice Marion Opala characterized the holding of the Erickson decision as follows:

"The court’s pronouncement imposes upon a licensed Oklahoma legal practitioner the affirmative duty to stand "four square" for the purity of criminal law enforcement process and to whitewash it even when a doubt may exist. The lawyer is forced affirmatively to assert that all is well with the prosecutorial service; he is free neither to suspect nor to be apprehensive that, in fact, things are not so well. Implicit in the expected affirmations is the disturbing notion that lawyers must serve as enthusiastic cheerleaders for the government. I view § 22 as commanding the government to maintain the very same neutrality that the U.S. Supreme Court has found to be embodied in the First Amendment’s protection of free expression.7 Had respondent been vocally denying the possibility of any corruption in the prosecutor’s office, no disciplinary action would likely have followed and this case would not have been called to our attention."

Conservatives have been way behind the curve on this issue. It is refreshing to see a respected conservative figure like Paul Craig Roberts speaking out.


America’s Injustice System Is Criminal

by Paul Craig Roberts

The Christmas season is a time to remember the unfortunate. Among the most unfortunate people are those who have been wrongly convicted and imprisoned. The United States has a large number of wrongfully convicted. There are many reasons for this. One is that the US has the largest percentage of its citizens imprisoned of all countries in the world, including China. One of every 32 US adults is behind bars, on probation or on parole. Given a wrongful conviction rate, the larger the percentage of citizens in jails, the greater the number of wrongfully convicted. According to the International Center for Prison Studies at King’s College in London, the US has 700,000 more of its citizens incarcerated than China, a country with a population four to five times larger than that of the US, and 1,330,000 more people in prison than crime-ridden Russia. The US has 5% of the world’s population and 25% of the world’s prisoners. The American incarceration rate is seven times higher than that of European countries. Either America is the land of criminals, or something is seriously wrong with the criminal justice (sic) system in "the land of the free."

In the US the wrongful conviction rate is extremely high. One reason is that hardly any of the convicted have had a jury trial. No peers have heard the evidence against them and found them guilty. In the US criminal justice (sic) system, more than 95% of all felony cases are settled with a plea bargain. Before jumping to the conclusion that an innocent person would not admit guilt, be aware of how the process works. Any defendant who stands trial faces more severe penalties if found guilty than if he agrees to a plea bargain. Prosecutors don’t like trials because they are time consuming and a lot of work. To discourage trials, prosecutors offer defendants reduced charges and lighter sentences than would result from a jury conviction. In the event a defendant insists upon his innocence, prosecutors pile on charges until the defendant’s lawyer and family convince the defendant that a jury is likely to give the prosecutor a conviction on at least one of the many charges and that the penalty will be greater than a negotiated plea. The criminal justice (sic) system today consists of a process whereby a defendant is coerced into admitting to a crime in order to escape more severe punishment for maintaining his innocence. Many of the crimes for which people are imprisoned never occurred. They are made up crimes created by the process of negotiation to close a case. This takes most of the work out of the system and, thereby, suits police, prosecutors, and judges to a tee. Police do not have to be careful about evidence, because they know that no more than one case out of twenty will ever be tested in the courtroom. Prosecutors do not have to make decisions about which cases to prosecute or risk losing cases. By coercing pleas, prosecutors can prosecute every case and boast of extremely high conviction rates.

When prosecutors had to decide which cases to prosecute, they had to examine the evidence and to investigate the defendant’s side of the story. No more. The evidence seldom comes into play. In place of a determination of innocence or guilt, prosecutors negotiate with lawyers the crimes to which a defendant will enter a plea. Prosecutors have lost sight of innocence and guilt. What we have today is a conveyor belt that convicts almost everyone who is charged. Every defense attorney knows that today prosecutors can purchase testimony against a defendant by paying a "witness" with money, dropped charges, or reduced time to testify against the defendant.

Many prosecutors become highly annoyed at any disruption of the plea bargain conviction process. A defendant that incurs the prosecutor’s ire is certain to be framed on far more serious charges than a negotiated plea. Going to trial is no guarantee that an innocent person will be acquitted. Prosecutors routinely withhold exculpatory evidence and suborn perjury. Generally, jurors trust prosecutors and are unaware of their inventory of dirty tricks. Few jurors can tell the difference between bogus evidence and real evidence. For example, psychologists and criminologists have established beyond all doubt that eye-witnesses are wrong 50% of the time. Yet, jurors usually believe eye-witnesses unless they think the witness has it in for the defendant and is lying. Prosecutors – and there are still a few – who are meticulous about their cases and fair to defendants show poor results compared to the high convictions attained by prosecutors who run plea bargain mills and frame-up factories.

Today’s criminal justice (sic) system is results orientated, not justice orientated. In the past judges could give light sentences to people they believed had been wrongfully convicted. But "law and order conservatives" have taken sentencing discretion away from judges. Today prosecutors hold all the cards. Many conservatives believe that prisons are full of hardened criminals who liberal judges are determined to release to prey upon society. In truth, the largest percentage of prisoners are drug users who are victims of the conservatives’ "war on drugs." Drug offenses account for 49 percent of federal prison population growth between 1995 and 2003. Many of these prisoners are mothers arrested for drug use. The greatest victims of the drug laws are the children whose mothers are incarcerated.

As females become sexually active at younger and younger ages, state legislatures have stupidly raised the age at which it is legal to engage in sexual activity. Today, a significant percentage of new prisoners are young men imprisoned for engaging in sexual activity with teenage girls. In the US, criminal justice (sic) has more to do with ruining people than with punishing criminals. I have written often about wrongful convictions. We know that wrongful conviction is a serious problem when the advent of DNA evidence has led to the release of a significant number of innocent people who were convicted of murderer and rape, and when a number of law schools feel that it is necessary for them to operate innocence projects that work for the release of the wrongfully convicted.

Prosecutors are like President Bush. They absolutely refuse to admit that they ever make a mistake and have to be forced to disgorge their innocent victims. Nothing makes a prosecutor more angry than to have to give back a wrongfully convicted person’s life. Lt. William Strong and Christophe Gaynor are two of the hundreds of thousands of wrongfully convicted Americans whose lives have been ruined by an irresponsible and corrupt criminal justice (sic) system. In Virginia, Lt. William Strong, the son of a military family, grew tired of his wife’s unfaithfulness and filed for divorce. The unfaithful wife retaliated by accusing Strong of marital rape. Neither police nor prosecutor investigated the charge. Instead, they proceeded to set Strong up for plea conviction. The arresting officer recommended Strong’s attorney, an incompetent who owed his cases to the police. Strong insisted on a trial, but the arresting officer and attorney convinced Strong’s parents that with a plea their son would be out in a year. No one told Strong or his parents the implications of a plea, and Virginia Judge Westbrook Parker, playing to feminist voters, gave Strong a life sentence of 60 years.

The case has many unsavory appearances. If reports are true, the arresting officer paid numerous visits to Strong’s unfaithful wife, as did Strong’s attorney, and the arresting officer ended up separating from his wife and leaving the police force. The perk kit exists and Strong could be given a DNA test, but Virginia refuses on the grounds that Strong admitted his guilt. Strong says the semen, if any, is that of the wife’s boyfriend. Strong has been in prison for 15 years on the basis of zero evidence. He is in prison because he and his parents trusted the police officer and the criminal justice (sic) system.

Another Virginia case is that of Christophe Gaynor. Gaynor was the coach of an adolescent skate board team, which he took to New York City for a competition. One of the adolescents expressed his intention to buy drugs. Gaynor forbade it and threatened to report the boy to his parents. The irresponsible kid retaliated by accusing Gaynor of sex abuse. There was no evidence. There was no investigation. Gaynor had never displayed any homosexual tendencies. The entire team knew the accusation was false. Gaynor went to trial. He was framed by the prosecutor with the help of the judge, who intimidated Gaynor’s witnesses by incarcerating one of the kids overnight without cause. Gaynor was sentenced to 32 years with no possibility of parole on the basis of no evidence, just an unproven accusation.

His trial was full of irregularities, and the same judge who sentenced him denied Gaynor a new trial. Ten years later, this past summer Noah J. Seidenberg, who brought the unproven accusation against Gaynor, died apparently of drug overdose at the age of 24 years. There is no institution in America that is a greater failure than the criminal justice (sic) system. The system can do nothing but fail, because the search for truth and justice plays no part in the system. The prosecutor’s career depends on his conviction rate, not on discovering the guilt or innocence of the accused. Virginia’s governor could pardon Strong and Gaynor. But feminists and "child advocates" would scream and yell, as would prosecutors and "law and order conservatives." Nothing matters to these groups but their own single-issue, and justice is not part of it. In America justice cannot be done unless a governor is prepared to sacrifice his own political career in the interest of justice. What kind of people are we when we exercise no oversight over a criminal justice (sic) system that destroys the lives of innocent people with lies?


Monday, February 12, 2007

Lessons From Lawyer Movies

I am of the opinion that good fiction frequently contains as much or more truth than non-fiction. For example, the practice of law looks very different from the inside but those differences are seldom discussed with outsiders. The classic lawyer movies that we are all familiar with often mean entirely different things to a cynical practicing lawyer than they do to a “civilian.” Here are some examples:

Every aspiring lawyer has seen To Kill a Mockingbird at least twenty times. There are few of us who cannot recite key lines of the dialogue from memory. The famous words, “Stand up Miss Jean, your father is passing” motivated hundreds of idealistic young people to become civil rights attorneys and that one line states the predominant theme of the movie, a man of conscience nobly struggling to right the wrongs of his flawed generation. But, viewed pragmatically from inside the profession, this beautifully told, tragic, southern tale holds an entirely different and darker lesson. In the end, while Atticus Finch did the only thing any man of conscience could do and did it as well as it could be done under the circumstances, his client was still convicted. And, his client was just as dead after being shot by a prison guard while trying to escape as he would have been had the lynch mob been allowed to take him. As a matter fact, in the 1930’s South, Finch’s black client was dead the moment the lying white girl accused him of rape. His actual guilt or innocence was irrelevant. So, to the cynical lawyer, the real lesson of To Kill a Mockingbird is that some verdicts are inevitable just because of who the parties are and where the case is being heard.

The last point is shored up by another great movie of the same era, “Compulsion.” Compulsion is based upon the Leopold and Loeb case of the 1920’s. The Orson Wells character is based upon Clarence Darrow, the most famous lawyer of the era. Wells is hired by the wealthy parents of his clients because he is a famous orator and a master at manipulating juries. The case looks bleak. The boys have already confessed to the killing. Wells takes the case but at trial, after carefully watching the jury’s reaction to the prosecution’s opening remarks, abruptly enters a guilty plea instead of presenting any evidence to the jury. The parents are stunned and voice grave doubts about his abilities. They had assumed that their money and influence would buy their sons an acquittal despite the fact that they had brutally murdered an innocent child and then arrogantly confessed to it before the District Attorney and reporters.

In the next scene, Wells tries to explain that an innocent verdict was impossible and in his opinion the jury would have handed down the death penalty. Consequently, he entered the guilty to plea to remove the jury from the equation and plead his client’s case for mitigation directly to the judge who was more likely to be tolerant of his client’s sexual deviancy. The defendants deserved the death penalty but Well’s strategy works and they receive life sentences instead. It is a great victory. Saving the lives of two homosexual thrill killers in the 1920’s was one of the greatest feats of lawyering ever accomplished. To the legal outsider, the theme of the movie is plain, a dying legal genius struggling desperately to preserve the lives of his youthful clients even as his own inexorably slips away, through his struggle winning years of precious life for his clients that he cannot secure for himself. But, in the final scene, the clients berate Wells and show no gratitude for the miracle he has accomplished. To the cynical lawyer, Compulsion teaches three things, first, that some verdicts are inevitable not only because of who the clients are and where the case is being heard but also and more importantly because of what the clients have already said or done. Second, some if not many clients will be inherently ungrateful, even if you spare their lives. Third, it teaches that success in court is highly relative no matter what the clients or anyone else thinks about it and even a bitter pill like a life sentence can be a great victory.

The theme of client ingratitude appears again in one of the best lawyer movies of all time, Anatomy of a Murder. Country lawyer Jimmy Stewart secures an acquittal for a Korean war veteran who kills his wife’s alleged rapist in a fit of rage. The theme is plain, a bright country lawyer and an aging disbarred drunk can overcome the awesome power of the state, especially when backed up by a bright, wise-cracking secretary and a lean, minimalist jazz score that borders on the brilliant. But, to the practicing lawyer, the real lesson comes in the final scene. Stewart and his partner drive out to the trailer park that was the scene of the crime to have his just acquitted client sign a promissory note for the legal fees that are still due. When they arrive, it is apparent that the just freed client went straight from the courthouse to his house-trailer, hitched it up and fled the jurisdiction, in the process stiffing Stewart of the $3000.00 he still owed him. The irony is exquisite. The client leaves a note pinned to a tree telling Stewart that he suddenly had an “irresistible influence” to flee without paying him, the same defense that Stewart had used to save his life! So, to the cynical lawyer, the lesson here is that some clients are inherently ungrateful no matter what the outcome of the case and their perceived value of legal services rendered will diminish exponentially in proportion to their distance from a jail cell.

Perhaps the best lawyer movie of the past twenty years is “A Civil Action.” Based upon a true story, it tells the gripping tale of a tragic, prolonged and complicated toxic tort case. This is a dark film. The protagonist is shown with all of his warts and the tone is cynical from the beginning. But, the movie does a wonderful job of showing just how difficult it is to litigate against a large corporation with unlimited funds and friends in high places. The case takes nearly ten years to complete and by the time the eight million dollar settlement is reached, it is not nearly enough to save the now deeply indebted law firm or the lead attorney. The lessons here are tough. First, the cynical lawyer should have realized instantly that no matter how horrible his clients situation and how sympathetic their plight, complex litigation is a money pit for all concerned and the deeper pockets usually win. Second, the cynical lawyer should have known that with deep pockets comes deep influence, the kind that no practicing lawyer dares talk about but is always present and almost impossible to overcome. Third, the cynical lawyer should have known that nobility of cause and purity of intention is no guarantee of success. Litigation is ultimately about money not justice and every case has a value beyond which neither judge nor jury will usually pass. Even if you ultimately win, if you forget this and spend more money than your case is worth pursuing justice, someone is going to have to take up the slack, usually the lawyer.

Each of these movies is a fictionalization of historical fact. To Kill a Mockingbird was based upon Harper Lee’s observations of the infamous Scottsboro Boys case. Comparison of historical accounts of the Scottsboro case and others like it show that Lee’s treatment of the plight black people in southern courts in the 1930’s was dead on. Compulsion presents a more complicated and ambiguous situation. Portions of the transcripts of the Leopold and Loeb trial are available online. While I did not find the actual words or similar ones referred to above in the transcripts, I did find psychiatrist’s testimony indicating a life-long pattern of ingratitude and untruthfulness in one of the accused. And, while Leopold treats Darrow very kindly in his book, Life Plus Ninety Nine Years , he also admits to the general truthfulness of the movie presentation. I have followed the blog comments of one of Oklahoma’s Indigent Defense System Death Penalty Team lawyers for several years now. Even here, in Oklahoma circa 2007, this expert litigator counts it a pretty good day’s work if his client does not receive the death penalty. A Civil Action took place in modern times. Jan Schlictman, the lead attorney is still alive and practicing. The facts of his life bear out the truth of the tale. He openly admits that he was broke and suicidal at the end of the case. Unspoken but apparent is the fact that Slichtman could have probably saved his law firm by simply consulting the actuarial-like tables that every corporate counsel uses to determine the financial value in a particular jurisdiction of every imaginable injury from a severed fingertip to burning to death in a commercial plane crash.

So, are the lessons from these classic movies valid? I think so but my opinion is just that and nothing more. However, “A Civil Action” is now required reading at over fifty law schools, To Kill a Mockingbird is usually on the suggested reading list for first year law students and VHS or DVD copies of it and Compulsion are staples in every law school library in the nation. It is obvious then that the information has been presented. The problem is that too many people, clients and attorneys alike, refuse to interpret it properly.