Forensic History: Crimes, Frauds, and Scandals
I’m wondering if this suggests a change to our procedures in prosecuting criminals. In Hawaii, the judge who hears motions in a divorce lawsuit cannot also hear the trial. The attorney that we interviewed said that this was partly to make the trial a real event, not simply the judge confirming previous decisions made after brief hearings.
Why not mix things up a little bit so that the people who work on the early phases of a criminal case are swapped out for detectives, prosecutors, and judges by the time of plea bargaining and trial? Then at least nobody involved in the actual conviction of a criminal has to swallow what is apparently the bitter pill of admitting “I was wrong.” There would be a little bit of extra spin-up time for the new team members to learn about the facts of the case, but it would be roughly the same workload of cases to detectives, prosecutors, and judges.
[Are there any risks for police, prosecutors, or judges who behave dishonestly? Professor Murray suggests that there are not. Across hundreds of cases that she reviewed she didn’t find any examples of police, prosecutors, or judges being criminally charged for wrongdoing. The wrongly convicted suffered, typically, 10+ years in prison. Taxpayers suffered by paying out millions of dollars per case in restitution, not to mention the costs of multiple legal proceedings. Citizens suffered by being victims of additional crimes (most wrongful convicts meant that the actual criminal was free for at least a period of years). But criminal justice system workers who broke rules in order to obtain wrongful convictions suffered at most the loss of a job (and that sanction was applied in a tiny percentage of cases).]
Related:
- “Should a Judge Rule on His Own Case?” (nytimes, February 29, 2016)
There is the Annie Dookhan case. But she had to screw up tens of thousands of times in order for it to warrant criminal prosecution.
George Bernard Shaw often commented on this, and his points are hard to argue with, though I wouldn’t recommend his proposed solutions.
GBS’ point essentially was that if you use the criminal justice system to deter crime, which is how most people think it should be use, it really doesn’t matter if the person convicted of the crime is actually guilty of the crime. Just enough people have to think he is, to create a perception that you run some risk of punishment if you commit a crime.
For this purpose, it makes more sense for the police, prosecutors, and judges to pick up a likely “usual suspect” and ram than through the process, than to really search thoroughly for the perpetrator, which takes alot longer and runs the risk that no one at all will be caught and punished, which is unacceptable if the point of the system is to deter.
The worse case scenario is a situation where someone is convicted of a crime who not only did not commit the crime but is unlikely to commit other crimes (if the fall guy is from a stratum of society where crime is normal, incarceration or execution at least prevents other crimes from being committed) AND the perpetrator both gets away and commits crimes in the future. Often the crime is a one time only thing or the perpetrator gets picked up and punished for something else.
This also explains certain biases in sentencing, they fall less often on social groups unlikely to visibly break the law, eg the upper class, the middle class, women, people with stable jobs and families. Its more likely people will have doubts that people from these groups are the perpetrator, making them harder to convict and creating doubts about the criminal justice system if they are convicted. And any crimes they commit, at least violent crimes, are likely to be a one-and-done thing, meaning conviction does nothing to prevent other crimes from occurring. So the system lets people in these groups alone, though it has to ran through a few now and then to show the system is impartial and for the additional publicity.
@Ed
Interesting – it’s a cynical way of looking at the law process, but probably closer to the truth than anything else.
This brings up another question, which is, how do we make civil servants in high positions more honest at doing their jobs? It is typical of Human nature to game the system to increase the metrics they are being measured by. We see this happen in law (% of cases won), education (% of students graduating or passing an exam), academia (number of papers published in hot journals), etc. Could we penalize pensions based on wrongful decisions in the past? Or what about assuming a certain “rate of failure” (eg. fraction of turned over convictions, retracted papers, students who don’t stay beyond the first year of college) and reward those with less discovered long term failures with a higher pension? That might work for civil servants, but not those in the private sector (ie CEOs who cash out early after making short sighted decisions). Sorry if this is just babble, it’s late at night and my brain is fried.
Modern history is filled with terrible crimes, baffling hoaxes, and seedy scandals. The infamous Jack the Ripper slayings. The alleged survival of Anastasia Romanov, the youngest daughter of the murdered Tsar. Seven-time Tour de France winner Lance Armstrong’s public fall from grace. The Chicago Tylenol poisonings and the copycat crimes that followed.
The legal system is a trade off between efficiency and fairness. Anyone who has worked in the criminal justice system knows that wrongful convictions are most likely quite unusual as a proportion of the number of people who pass through the criminal justice system. Anyone who has ever litigated cases knows that switching judges is a bad idea because it runs up costs and discourages settlement. The “real event” point is meaningless — in a purely rational system with purely rational people there should rarely if ever be a civil trial.