One System, Two Realities

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.

Comments

[ggmome]

Now wouldn't it be wonderful, to know that the rule of Law, will apply to ALL. Where justice would prevail for ALL citizens. But, somehow, I believe this was 'cooked'....

[Upstart]

For an example of an even more flagrant violation of the government's obligation to provide exculpatory evidence, for instance, check the story at:
http://defendmichael.wordpress.com/ particularly the email from the expert (under trial documents).
In this case, the prosecutorial misconduct comes directly from "command pressure".

[sofloridafan]

Having served on juries...I would go before a judge any day...most folks in this country give to much weight to the state and presumes guilty till proven innocent...if more people would educate themselves in the presumption of innocence we would not be disccussing this.

[SingingGuy]

The incentive for the prosecution to engage in misconduct is embodied in the fact that making a name for yourself is tied to your conviction rate. If you want to get ahead the search for true justice takes a back seat to the number of convictions you obtain. This distorts the system so that prosecutors would rather win than share exculpatory evidence with the defense. It is not a whole lot different from the Wall Street paradigm of recent years. You know, " If you want that fat bonus, hold your nose and package up those toxic mortgages into a risky security." So, if you want to get ahead as a prosecutor, put aside your doubts as to a defendants guilt and use whatever tactics you can to get that conviction.

[Gould123]

This criminal just went free by buying his way out of it! I hope someday the rich have to face their crimes to!

[MsLiz]

Please explain your comment. You appear to be accusing Holder of taking a bribe.

[dadw5boys]

Steven wants to get that 30 year Federal Government retirement plan !!!!!

.

[DoTheMath]

I wish more people would pay attention to this important article. In this country, we have "liberty and justice for all" - all who can afford it. The rest of us are far more vulnerable to injustice and unjustified loss of liberty than we realize.

People often accept plea bargains because their public defenders convince them their chances with a jury wouldn't be good, not because of the merits of their case, but because of their race, because of other things they've done that have nothing to do with the case, because of the community's attitude about the crime for which they're being tried, or because of other factors that are not related to the defendant's guilt or innocence or to the evidence. They can't afford a second opinion. They're told that if they lose at trial they'll get a lo-o-o-ng sentence, that they'll be so old when they get out. And the person who's telling them this, the person who's selling them the idea of trading away their chance at justice is the same person they would have to count on to argue their case in court.

[MsLiz]

I have been one of those court appointed attorneys. Our local DA would overcharge defendants. A theft would become a robbery. An assault would become attempted murder. It was frustrating, because the client might be guilty of the theft or the assault, but not the higher offense. Our DA would not plea bargain, or recommend probation. So, our indigent clients would remain in jail after a prelim in the district court, wait four months for a grand jury indictment, then get scheduled for circuit court where the Deputy DA might have the authority to settle the case more reasonably. Sometimes I took cases before the jury and counted it a victory if only 2 of 3 charges resulted in conviction. Of course, then the judge, who was likely a former DDA, would sentence the defendant according to his proclivities.

In our system, court appointed attorneys got paid by the hour, with a higher rate for in court hours, so the lawyer was encouraged to take cases to trial. Of course, that meant waiting longer to get paid.

Other jurisdictions have a staff of attorneys to provide defense. We had this in juvenile court, and for the most part, we worked like hell to protect our clients. The DDA once complained that she wasn't the good guy in juvenile court, we were.

There are many good defense attorneys out there working to protect indigent clients. It can be very frustrating, given the resources at the prosecutions disposal.

[heal57]

Great commentary. Thanks.

[LiberalBuzz]

I agree, good comment.I could tell you stories that would raise your hair, but then again, I imagine you could too.

[truegreen]

Excellent article.

[taikan]

Prosecutors are immune from civil suit for misconduct, even when that misconduct causes an innocent person to be convicted wrongfully. Therefore, until each state bar's ethics/disciplinary panel begins to take seriously charges of prosecutorial misconduct, the problem will continue to exist.

For many years, the California State Bar essentially ignored charges of unethical behavior by prosecutors, even in the face of appellate court reversals of convictions based on prosecutorial misconduct. Then, a few years ago the San Jose Mercury News did a series of articles entitled "Tainted Trials -- Stolen Justice" that did an excellent job of showing how overly zealous prosecutors bent on winning rather than achieving justice, along with judges (most of whom were former prosecutors themselves) who looked the other way, resulted in a number of incorrect guilty verdicts. As a result, the California State Bar finally started looking seriously at allegations of prosecutorial misconduct that violate state bar ethics rules, and recently recommended a three-year suspension for one prosecutor whose actions would have resulted in disbarment for any private attorney. However, it will take more such actions by the state bar before other prosecutors start to think twice before acting improperly.

[TeeLolly]

It's not just criminal justice that is tainted. According to the NY Times, more than half of state court judges surveyed admitted that campaign donations influenced their decisions; Ohio Supreme Court justices ruled in favor of their campaign contributors 70% of the time.
http://select.nytimes.com/2006/12/12/opinion/13talkingpoints.html?scp=1&sq=%22Judges%20for%20Sale%22&st=cse

Lawyers court trial judges with campaign donations, boat outings, football tickets, etc., to secure favorable rulings that are difficult to overturn on appeal as long as a key element of the ruling is "discretionary" (not explicitly governed by a rule of law, with no room for "interpretation"). Most judicial decisions have a discretionary component. In Ohio, some magistrates allow creditors' attorneys to "set up shop" in their courtrooms or chambers, intimidating defendants who believe the creditor is allied with the court. Although indigent people are entitled to extremely underpaid appointed counsel in criminal cases, no appointed counsel is available in civil cases--even when the defendant faces losing a home through foreclosure, having his wages garnished for years for a debt he doesn't owe, or losing parental rights through a step-parent adoption.

[Citizen54]

As the great Richard Pryor said:

"Yeah, we've got justice in America. You want into a courtroom and what do you see? Just us."

[offred]

Don Siegelman's case should be reviewed by a set of judges who aren't Republican cronies.

[obamagal]

I agree. Hopefully that file is on top of the pile in Mr. Holder's office.

[oregonbird]

Stevens should be retried, with all the evidence supplied to the defense. He was not exonerated, the trial result was set aside -- and to refuse to retry because the defendant is 'old' is absolute bull. Stevens is considering running for another office; apparently, he isn't too old to continue his history of corrupt government employment. Let's try another reason -- his trial was purposely mishandled, and his buddies in congress -- and Holder -- will protect their right to continue to use their positions for their own gain.

We, the private citizens of this country, do not receive such justice. It took years to look into the LaCrosse case -- just a few months, without jail time of course, to allow a high-ranking party member to evade all consequences of a despicable career.

There are indeed two justice systems in this country -- one for the thieves and war criminals with influence, and the other for us. We get ten years for a $100 burglary... they get another shot at high office because a sheet of paper was deliberately withheld.

[liberty68]

The real two systems of justice is one which we like to believe exists and ahen there's the one we don't talk about or perhaps are not aware of. The latter is the one which we 'contract' the administration of to private firms who do so for a profit. It's one in which if they spend money to rehabilitate prisoners it lowers their profits. Similarly, if real rehab takes place it just may reduce recidivism which is not in their best interests either since the more prisoners there are the larger their contractual compensation is. I believe it was Confucius who said the more laws a society has the more criminals it will have. A large majority of our prison population is incarcerated for offenses that don't even exist in other countries. Like possession of marijuana for example. We should take back the administration of our prisons, or at least see to it that real rehabilitation is taking place. And no, I was never in jail and don't intend to be, but having visited prisons through a Criminal Justice course elective, the obvious came through loud and clear. Just one person's opinion.

[Kaviraj]

Laws are like fences - the more bars in the fence, the more gaps there are. Therefore, the more laws there are, the greater the chances to abuse the laws.

[Bonobo]

Eric Holder should not have been Steven's last line of defense. Discovery abuses have become so common, or perhaps, have come to light as pervading the system, that a systemic reform is in order. There is an inevitable temptation to game the system, particularly for prosecutors who advance by winning cases. Punishing abusers is a pound of cure approach, better an ounce of prevention by removing the temptation to conceal evidence. Prosecution and defense should have a common third-party investigation. The goal of Justice is truth, not the sale of indulgences for the wealthy, nor the scapegoating of the marginal usual suspects.