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?



Blogger I. said...

Former Oklahoma Supreme Court Justice Marion Opala?

Opala's page on the Supreme Court site

Those pesky details...

1:55 PM  
Blogger Bill Kumpe said...

Thank you I. I meant to say "former Oklahoma Supreme Court Chief Justice Marion Opala." Your point is well taken, HIZZONER is still going strong on the OKSCT, he just lost his bid to serve another rotation as Chief Justice and ticked everybody off in chambers by filing an age discrimination suit against them.

2:01 PM  
Blogger Neal Synephrine said...

Exactly right. The system is broken, if indeed it ever worked as advertised (I suspect it didn't). In the vast majority of criminal cases the desired outcome, not the law, determines the various rulings by the courts.

11:01 AM  
Blogger Bill Kumpe said...

Neal, I would propose that the system does work as designed sometimes but it is (1) overworked, (2) over-politicized and (3) over-advertised. Long ago and far away I used to go to initial appearances in a busy little criminal court just about every day of my life. I got to know just about everybody in the process very well. One day a very clean cut and embarrassed young man was brought in in cuffs. His attorney tried to plead him guilty to felony child molestation at initial. The judge, thank God for him, made the guy allocute in great detail before he would accept the plea. It seems that the young man was going through a terrible divorce. His wife was trying to get custody of the child. She brought the child to him for weekend visitation with a terrible untreated diaper rash. The man was unemployed and had no money or insurance. He went to drugstore and q-tips and salve and did what had to be done just like another normal dad would have done. Twenty four hours after the child was brought home he was arrested for molestation and rape by instrumentation. The guy continued that he had no money for a defense lawyer and that his "attorney" had instructed him that if he pled out, as a first time offender, he was almost certain to receive a deferred sentence. The judge refused the plea, pled the guy not guilty, and I suspect had a long talk with the sheriff's department and the DA. There are so many things wrong with that story that I can't even begin to go into them. But, the real scary thing is that had the same events happened a few hundred yards in another direction and this defendant appeared in one of the busiest criminal courts in the state, you have to wonder if the judge would or could have taken the hour and half to straighten things out.

3:11 PM  

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