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One System, Two Realities

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The United States has one of the best criminal justice systems on earth; in practice, however, there are two systems. One system, the one that tried former Senator Ted Stevens, seeks justice. The other system, the one to which the public is largely indifferent, is the one in which the kind of misconduct that freed Mr. Stevens is both common and tolerated.

We learn about the American criminal justice in middle-school civics classes. The system is an adversarial one. Both the state and the criminal defendant are represented by equally well-qualified advocates. A judge presides over the trial to make sure both sides play by the rules. If either side commits serious errors, the judge may stop the proceedings or overturn the conviction; "it is better that ten guilty men go free than one innocent man be wrongly convicted."

Our system is also democratic. Trials are public affairs. Every defendant is presumed innocent until a jury of his peers convict him; he is not required to testify at trial and jurors may not infer guilt from his failure to do so. Jurors take a solemn oath that they will render "a true verdict according only to the evidence presented." To convict, the jurors must agree unanimously that the defendant is guilty beyond a reasonable doubt, "proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." And if the jury acquits the defendant, the state may not retry him, even when it appears the jury was wrong.

When the system works, justice ensues. That does not mean that all parts of the system always work perfectly- no human system is capable of that. But when one part fails, others parts are there as a safety net. Attorney General Eric Holder was Mr. Stevens' safety net; it is likely that the courts also eventually would have overturned his conviction for the same reason Mr. Holder intervened.

Many in the greater Duke community think of the case of the Duke lacrosse players who were falsely accused of sexual assault as a failure of the system. The opposite is true. And that is what was unique about that case and about the Stevens case. Although some parts of the system failed, in the end, justice was done through the system itself. There are many factors that accounted for this in the lacrosse case. The extraordinary media coverage put a spotlight on the prosecutor's conduct. The families of the accused students had the resources to retain excellent lawyers who exposed the prosecutor's wrongdoing. The North Carolina Bar took the unprecedented step of bringing charges against the prosecutor while the case was pending. The North Carolina Attorney General took over the case and honestly conducted an independent investigation. And, finally, the three defendants were white middle-class Duke students. Perhaps the mother of one of these students best summarized what made that case different: "Mr. Nifong, you've picked on the wrong families."

The Duke Innocence Project investigates the cases of poor and minority prisoners in North Carolina who have nothing in common with the Duke lacrosse players. In case after case, law students are surprised at how little evidence it took to convict the prisoner. And students are dismayed by the widespread indifference of the police, prosecutors, judges, defense lawyers, the North Carolina Attorney General, and the public to the routine misconduct of some prosecutors and police officers and to the possibility than some of these prisoners may be innocent.

When Reade Seligmann, one of the Duke lacrosse players, was exonerated, he said: "This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not to have the resources to defend themselves. So rather than relying on disparaging stereotypes, or creating political and racial conflicts, we must all take a step back from this case and learn from it."

Many of the people who will praise Mr. Holder for dropping the charges against Mr. Stevens will not care that the same kind of misconduct routinely taints the trials of those who are not rich, or famous, or well-connected, or well-regarded. Nor will they likely step back and learn from what happened to Mr. Stevens. That is the other reality of the criminal justice system and the indifference that sustains it.

James E. Coleman Jr. is a professor and co-director of the Wrongful Convictions Clinic at Duke Law School.