This is Justice?

The cruelty, unfairness, and, well, just plain meanness of our system of justice is what I choose to attack today. It may well be true that we have the best such system in the world, as some say, but I doubt it. It may well be true that humans are incapable of being fair to those we dislike, but I just can't believe that. But one thing we must all believe is that, of all the crimes which one can be convisted of when one is totally innocent, murder is surely the easiest.

Maybe I didn't phrase that clearly. It is possible for the innocent to be found guilty at trial by a jury. Of all the charges for which this true, murder is by far the one where this is most possible. This is true for several reasons, and is only true if you don't include crimes in which the accused is technically innocent of the charge at bar, but pattern evidence reveals to the jury that the accused has committed many such crimes for which he was never punished. This may be obvious, but Alan Dershowitz, in his 1982 book The Best Defense, laid out his 13 rules of the criminal justice system and they are instructive. They Are"

Rule 1- Most criminal defendants are, in fact guilty.

Rule 2 - All criminal defense lawyers, prosecutors and judges understand and believe Rule 1.

Rule 3 - It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some areas it is impossible to convict guilty defendants without violating the Constitution.

Rule 4 - Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.

Rule 5 - All prosecutors, judges and defense attorneys are aware of Rule 4.

Rule 6 - Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict defendants.

Rule 7 - All judges are aware of Rule 6.

Rule 8 - Most trial judges pretend to believe police officers who they know are lying.

Rule 9 - All appellate judges are aware of Rule 8, yet many pretend to believe the trail judges who pretended to believe the lying police officers.

Rule 10 - Most judges disbelieve defendants about whether their Constitutional rights have been violated, even if they are telling the truth.

Rule 11 - Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged.

Rule 12 - Rule 11 does not apply to members of organized crime, drug dealers, career criminals or potential informers.

Rule 13 - Nobody really wants justice.

Now, I am no fan of Mr. Dershowitz's politics, especially his craven and unprincipled support of B.J.Clinton. But as an academic and appeals lawyer, he is one of the best. He helped to engineer the reversal of the conviction of at least one innocent man, Claus Von Bolow. who was convicted the first time for no better reason than that the jury thought that he "looked guilty" and was cold and apparently uninvolved emotionally with the proceedings. Dershowitz was a central figure in obtaining the reversal of the first conviction, and was on the seat with the defense when they proved beyond even a shadow of a doubt that the prosecutions entire case, which rested on some illegally obtained evidence and the wholly impossible idea that Mrs. Sunny Von Bulow was (attempted to be) killed by an injection of insulin, delivered by her unsympathetic-looking husband, natch. "Who else could have done this to Sunny" the prosecutor confidently said to the jury.

In the retrial, justice was obtained for Mr. Von Bulow, but at what price? At the first trial he was represented by Herald Price Fahringer, a great and extremely expensive defense attorney. After he lost the case, Fahringer was quoted (by the judge in an unrelated appeal):

Trial lawyer Herald Price Fahringer who represented Claus von Bulow was quoted in the San Francisco Examiner of November 28, 1983 as stating that his haughty personality hurt his cause. He said "There's no way in the world you're going to be able to get 12 jurors who can sympathize with him. Arrogance and superiority are just devastating to a jury."

Imagine that. Conviction for murder for being arrogant and superior. Juries just love to bring down the high, mighty, and haughty, when given the chance.

In the second trial, Von Bulow was represented by Thomas Puccio, a former federal prosecutor, who brilliantly blew away the case against his client. He had to, because nothing less than complete devastation of the prosecution's case would have resulted in the acquittal of such an unsympathetic character as Claus Von Bulow. But this justice came at a price that has been estimated in the eight figures. That's better than ten million dollars of Sunny Von Bulow's money for the trial, the appeal by Dershowitz (who around that time bragged that he would take no case without a minimum of one million dollars cash retainer, and then had his law school students do most of the work), and the retrial. (I watched, and remember, the entire retrial, but for an in-depth recapitulation of the case, go here.

Then, last night on Court TV, on their show The System, I saw a case in which, while the defendant might have looked guilty, the family of the victim believed otherwise and supported him, and the evidence, as reported in the story, was so flimsy as to defy belief. The defense obliterated the case against him. He was convicted anyway. As TV Guide had it:

The case of Florida medical examiner William Sybers who, 10 years after his wife Kay passed away, is charged with her death. Throughout the trial, he has the support of his and Kay's children and her family. The prosecution attempts to use forensic science to prove his complicity; his defense attorney questions whether the evidence was contaminated during the testing process.

The documentary show was less kind to the prosecution's case. But still he was convicted, based primarily upon some very speculative and untested "science". He was practically pauperized by the cost of his defense. No millions for the likes of Dershowitz or Puccio remain for him. He is, however, pursuing an appeal. Good luck to him.

What outrages me is not even that these men were innocent. For all I know, both men are guilty as charged. What outrages me is that they could be convicted of murder on such faulty evidence, merely because the prosecutor succeeds in convincing the jury that the defendants look guilty, feel guilty, fairly reek of guilt, and appear to the jury as unsympathetic and uninvolved, so the jury just goes ahead and disregards the evidence and convicts them. It could happen to you. Or me. On the other hand, charismatic individuals, O.J. Simpson comes to mind, can be acquitted after mountains of evidence prove their guilt. In the Bible, convictions for murder must rely on at least two eyewitnesses to the crime. That may be too high a standard for our modern society, what with DNA testing and video tape, but the present situation, where, for example, all that is needed for conviction is a possible motive and the absence of a convincing alibi, seems way too loose, in my opinion. Recently over 100 murderers have been set free, by the application of DNA evidence that was not available at the time of trial. This shows that many convicts on death row are entirely innocent, since very few murders have any DNA evidence available for testing in the first place, due to the nature of the crime (perpetrator DNA is usually associated with murders that are preceeded by rape).

Bottom line: in our modern system of justice, WINNING has become more important to police and litigators than any search for the truth. The need or desire for retribution for the victim, which has no constitutional basis, has become paramount. Many proposals have been advanced to improve matters. For instance, Professor Glenn Reynolds has proposed one solution of juries being kept in the dark about much of the available evidence and prosecutors seeking conviction rather than truth. That's one is a little dense, but he has a more general discussion on the subject here. There are a plethora of possible solutions or improvements to the present situation out there. We can only hope that the entrenched interests move the ball forward, and make the administration of justice in this nation a little more fair, especially for those of us who don't have millions of dollars to help improve the odds for those of us who become wrongfully accused, and look like we might have committed the crime. It is up to us, the little guys, to raise our voices and demand change. I pray that the movement to change the system for the better becomes the juggernaut that it needs to become before real change is possible.