Wednesday, July 09, 2008

Criminal (in)justice.

I've been watching a lot of true-crime lately. It's not hard to do; true-crime is the staple content nowadays of TV newsmagazines like 48 Hours, Dateline, and Primetime: Crime. (Seems like every show on television is either a reality series, a drama set in a hospital or police precinct, or a true-crime newsmagazine.) Invariably as such shows rouse to a finish with the obligatory guilty verdict, thus providing closure to hard-line viewers who otherwise would've felt cheated, I end up leaping to my feet and screaming NO! at the television (which, oddly, does not reply or even acknowledge me). I do this not because I think the defendant is a nice person, or even that he or she is innocent, necessarily; most of the time it seems likely that the cops got the right guy (or gal). But—call me crazy—I always thought guilt actually had to be proved beyond a reasonable doubt (and to a moral certainty, the oft-forgotten part of the admonition given to juries*). In nine out of 10 of these shows, unless whole portions of the prosecution's case unaccountably got left on the cutting-room floor, guilt goes sorely un-proved, at least from my POV. Not only that, but when the reporter convenes jurors after-the-fact to question them on their thinking, it becomes clear that the jury rendered its verdict based on factors that had no business even being included in the case. Again, IMHO.

Ergo, I hereby take the liberty of presenting a few recommended changes to a criminal-justice system that—if these shows are any indication—is seriously broken:

1. PLEASE: No so-called evidence rooted in the defendant's demeanor upon learning of the crime.
I don't want to hear testimony from cops (or a post-mortem from a juror) that goes, "I was immediately suspicious because he didn't react the way you'd expect people to, when they just found out their wife is dead...." Human beings are different and react differently to things. I know people who fly into a blind rage when confronted with the slightest speck of adversity, and I know people who just sort of swallow and do/say nothing even when faced with major setbacks. "Unexpected reactions" are not evidence of anything, have no direct relevance to the commission of a crime, and should never be admissible at trial. Related to this:

1a. PLEASE: No so-called evidence that suggests that the defendant was happy the victim was dead.
I don't care if the defendant started laughing or burst into applause when informed that her husband or former business partner had just been found decapitated and on fire. Maybe she hated the man and wished him dead. That has nothing to do (legally) with whether she killed him.

2. PLEASE: No so-called evidence based on commonplace things the defendant did, or didn't do, or would've normally been expected to do (or not do), in the days following the crime.
Look, it's one thing if the defendant was observed out in his yard throwing guns, knives and body parts into a giant vat filled with sulfuric acid on the night his wife disappeared. But I don't want to hear vague evidence about how so-and-so "never called the cops to check on the progress of the case" or "seemed perfectly fine to me" or began screwing the neighbor-lady up the street the day of the funeral. (Nor, for that matter, do I want to hear about how he'd been screwing the neighbor-lady up the street for the past two years. That has nothing to do with what happened the night of the killing.) Once again, people are different, and people in a high-stress situation may act strangely. That's not evidence of anything, has no relevance to the commission of the crime, and should not be admissible at trial.

3. PLEASE: No so-called evidence based on the defendant's behavior/comportment at trial or during testimony.
I don't want to hear jurors say things like, "I was watching him as he sat there during the testimony, and he just seemed so arrogant to me" or "I didn't see any emotion in him at all when they talked about the night of his wife's death...." That's not evidence of anything, has no relevance to the commission of the crime, and should not be admissible at trial. Moreover, if the defendant chooses to testify, I don't want to hear jurors later say things like, "I just didn't believe him. He wasn't credible to me." Jurors shouldn't be permitted to simply discount sworn testimony on the basis that "I just didn't buy it." Now let me be clear: Jurors can make that determination if they catch the defendant in a lie, or spot contradictions/inconsistencies in his or her testimony. But no juror should be allowed to disregard otherwise consistent testimony simply because that juror "didn't like the guy's manner" or "didn't find him credible." If the defendant testifies under oath, that testimony must be given proper weight. Not only that, but in the absence of refuting evidence, that testimony must prevail.

4. PLEASE: No cases built entirely on circumstantial evidence.
I know, this is a really controversial one that would have prosecutors nationwide screaming bloody murder. But people, I've had bizarre things happen to me in life. In all likelihood, you have, too. There are times when things that just don't happen...suddenly happen. Ergo, you cannot, I repeat, cannot send someone to jail for life (or, god forbid, to the gas chamber!) because a series of bizarre coincidences suggest that s/he committed homicide. If there are no witnesses and there is no direct/physical evidence, there is no case. Period.

5. PLEASE: No cases built primarily on the fact that prosecutors couldn't seem to find anyone else around who would've/could've done the deed.
This, to me, is prosecution "by default," and shouldn't even require further comment.

Though most of my gripes are with the prosecution, I do have some quibbles with the defense as well. And so:

6. Defense attorneys should not be permitted to advance "alternative theories of the crime" that they know are fictitious.
If the defendant has confessed to his attorney, then the attorney's defense of his client must be limited to highlighting the reasonable doubt in the prosecution's case. No attorney should be permitted to put on an affirmative defense that suggests the involvement of other people he already knows had nothing to do with the case. That is fraud. And if laws (and even constitutional protections) need to be changed to effect this, so be it.

Reckoning guilt or innocence should be based on a balance sheet. As much as possible, we should seek to remove the "human factor." I'll have more on this as time permits.

* though that phrase has now come under fire.

25 comments:

Cal said...

So #4 would exclude murder cases where no body was found? Wouldn't that allow someone who really knew what they were doing to commit a crime and get away with "bloody murder"? I'm specifically thinking of domestic cases --- such as the Peterson (the Illinois cop) one.

Steve Salerno said...

Yes, Cal, I think so. I realize that what I propose here would make it massively harder to try a murder case (and let's face it, nothing I say here has a snowball's chance of ever becoming policy). But I just keep thinking about that old line: "It's better that 10 guilty men go free than that one innocent man is put to death..." Somewhere along the line we've lost the commitment to that ethic.

Besides, "finding the body" is part of the prosecution's burden of proof. I don't see why we should alleviate them of that burden--and allow cases to go forward anyway-- simply because the prosecutors couldn't meet their burden of proof. I saw a case just last week on 48 Hours where there was no body, no DNA evidence, no fingerprints, no murder weapon, no witnesses, no apparent crime scene, no meaningful quantity of blood (i.e. other than that which could be explained by people, including menstruating women, living in a house for years)...in short, there was no evidence that a crime had even been committed. The ex-husband was found guilty for no better reason than the mere fact that his wife disappeared one day. Afterwards I just sat there open-mouthed. That is not justice.

Steve said...

Your #4 (circumstantial evidence) reminded me of a book I just finished, "Mistakes Were Made" by social psychologists Carol Tavris and Eliot Aronson. They have an excellent chapter about the criminal justice system in which they discuss extensively how police and prosecutors will form a hypothesis and then systematically disregard evidence that doesn't confirm the hypothesis.

They've even included quotes from cases where the defendant was shown innocent via DNA testing 15 years later, and the original prosecutors and police still insist that the person is guilty and should be locked up.

It's a pretty scary pattern.

Cal said...

Steve (not Steve Salerno)- The book you mentioned is one I've had on my reading list that I haven't been able to get to yet.

The book sounds more interesting than I thought it would be.

Steve Salerno said...

Steve and Cal, yes, the points being made here in the comments section, particularly apropos of the book Steve mentions, open up a whole other can of worms that troubles me--deeply--about the MO and mindset of too many prosecutors: It's about winning. It's not about truth (let alone justice). Even 10, 15, 20 years after the fact, they don't want their convictions overturned because that "tarnishes their record" and/or makes them look foolish. Well, that's just too damn bad!

Anonymous said...

I disagree with you Steve, I certainyly don't think prosecutors should fabricate evidence or railroad people but, if they did things the way you suggest here who would ever get convicted of anything!? You'd make it impossible to try a case and these lowlifes society is full of nowadays would just walk free.
--Carl

Steve Salerno said...

Look, Carl, you're not the only one who feels that way. You may even be in the majority. I just think that a commitment to principles of fairness has to take priority over the fervor to rid society of "lowlifes." If there's insufficient evidence, even a lowlife is entitled to "walk free," as you put it.

Cal said...

Steve S.,

I see your point in baseball. (I know this not specifically germane to crime, but I think my point is related.) Yesterday, I watched Mark Mulder of the Cardinals throw 16 pitches and walk off the field after coming back from two shoulder surgeries. But, with a minor tweak, he is using the same pitching motion that got him in trouble in the first place.

I've mentioned Dr. Mike Marshall on this blog before. He has worked with pitchers and not one of them has ever had an arm injury. He was durable himself as a major-league pitcher. He has developed a motion that he believes (through research and his own technical explanation) that would eliminate pitching injuries. Yet, despite his pedigree (ex-MLB pitcher and doctorate in biomechanics), no MLB organization will listen to him. It's because his motion is radical and completely different from what has been used for 130 years. Yet every day I read that many pitchers have to undergo surgery. It's even infected the youth baseball. I almost think it's a form of child abuse to be ignorant and burn these kids' arms out.

Yet, the first guy who threw a pitch had no science behind what he was doing. I mean, Dick Fosbury came up with his "Fosbury Flop" for the high-jump and it was radically different from what was done before. Yet, scientists determined that he had found the most efficient way to high jump.

It's almost as if I can watch these pitchers now, because of Marshall, and almost predict myself the injuries they are going to have. But MLB's answer basically is --

s**t happens and throwing is an unnatural act. Marshall disagrees with this vehemently.

Your comment about some prosecutors reminds me of this.

Steve Salerno said...

Cal, that's an interesting (and apt) way of tying all this together. And you know I'm a sucker for anything that brings baseball back into the discussion. ;)

Incidentally, I hadn't thought of this when I first composed this post, but I'm sure many of you have heard that the Colorado DA's office has now formally exonerated the Ramsey family in the death of poor JonBenet. The announcement came a little late for Patsy Ramsey, of course, who had to watch her name dragged through the mud for years, with suspicions still being voiced right up till her death in, I believe, early 2006. You remember the rush to judgment in that case? And you remember the reasoning (apropos of my point 5): "Well if the Ramseys didn't do it, who did...?"

Cal said...

There were several recent cases where I would have been wrong on first blush:

1) JonBenet Ramsey--I felt that there was no way the parents did not have something to do with it. But I am always going to be curious as to what happened. I guess we'll have to wait for Oliver Stone's version...LOL

2) Chandra Levy - based on the media obsession, I was convinced that Gary Condit had something to do with it. Subsequently, no DNA evidence linked him to her murder.

3) the runaway bride from several years ago

I remember watching Nancy Grace and seeing her say "that there is no way this woman got cold feet".


On the other hand, have there been any high profile cases where the jury basically ignored the DNA evidence in their decisions. The only one I can think of is OJ Simpson.

Also, I remember reading that many prosecutors are frustrated by what is the termed "The CSI Effect." Juries expected every case to have DNA evidence, and I guess even today some won't have it.

Steve Salerno said...

Don't even get me started on Nancy Grace. The woman is quite simply the epitome of all that is wrong and foul at the intersection of media and the criminal-justice system.

Mike Cane said...

What is particularly sad about all of what you list is that it's the creation of *writers*.

We weave pretty, convincing lies -- and then those lies are swallowed by unthinking eejits who bite us on the ass with them.

I just love the one about how "photogenic" someone looks determines a) character, b) intelligence, c) honesty, and d) innocence.

The guiltiest and most untrustworthy SOBs I've ever encountered in my life all looked like they came out of Hollywood.

Steve Salerno said...

Mike, now, you wouldn't be thinking of a guy like Scott Peterson, would ya? (Though you gotta admit: Charlie Manson looked the part.)

Anonymous said...

Steve, Thank you for your blog. I copy your statement: "But I just keep thinking about that old line: "It's better that 10 guilty men go free than that one innocent man is put to death..."

Certainly we have lost the this ethic in a big and real way. Unfortunately, real people are having their lives literally dismantled when an accusation they commited some crime occurs. Often the only evidence is:"he said; she said"... with the burdon of proof (or indeed innocence) pushed upon one party often the defendant. The material cost is great and often crippling but the social cost can be devastating.

By the time the matter gets to court, the lives of several people is nearly always damaged if not dismantled completely. In the end there is no 'winner'. I read a blog from revron who discovered that even though winning the bun fight did not equal feeling good about oneself.... I sure wish more people knew this before they embark on a mission to 'feel vindicated' via the legal system.

True crime TV perhaps encourages this, as people who watch way too much TV consider themselves expert at passing judgement on a person's guilt or much more rarely innocence.

I agree that these shows are generally not good for us as a community, skewing attitudes and normalizing poor morals.

Cal said...

Steve Brill, the founder of Court TV, has said he rues the day he put Ms. Grace on TV.

But her popularity seems like a gender thing to me. Most guys I know hate her, but most women love her. I don't like her myself. She is too pompous and bombastic for my taste.

Steve Salerno said...

Anon, thanks for your thoughts.

Cal, Ms. Grace is proof-positive of what I've long argued about most of us being ruled by emotions (whether we admit it or not). As you may know, her fiance was killed in a hold-up some years back, and I don't think she's ever gotten over it. She is a bitter, vengeful, mean-spirited woman who cloaks those "qualities" in a veneer of "being an advocate for justice and victim's rights...." Bull!

Mike Cane said...

Steve: No.

Have one more local: Preppie Killer

Photo

Anonymous said...

Steve, I know what you are going to state, but I have to point it out. Where you not the same man who thought your fellow college professors were heartless for not crying during "Schindler's List?" That puts you in the majority of people who judge others' by their OWN responses to trauma.

So I agree with your post about how people get convicted unfairly based on non evidence, on the other hand, I know the poster (you) is guilty of this very same crime.

Steve Salerno said...

Anon, there's some truth to what you say. No doubt. I would offer the following, however:

1. We weren't in court. THough I might have private opinions about people who can't cry (or won't cry) at a movie like Schindler's List, that is a whole different animal from being on a jury and applying that reasoning when deciding guilt or innocence. I wouldn't assume that people are murderers simply because they don't cry at Schindler's List.

2. I think there's a difference between judging individual people who are on trial, in court, where rules of evidence apply, and judging an entire class of people who all seem to react the same way (which is to say, inertly, with no apparent emotions). If, say, you're in a room with 500 academics, none of whom shows much sentiment in response to an event that "normally" would provoke sentiment, I think it's fair to at least wonder whether there's something about academics that makes them...a bit cold and dispassionate. Yes? No?

Anonymous said...

"1. We weren't in court. THough I might have private opinions about people who can't cry (or won't cry) at a movie like Schindler's List, that is a whole different animal from being on a jury and applying that reasoning when deciding guilt or innocence. I wouldn't assume that people are murderers simply because they don't cry at Schindler's List.

2. I think there's a difference between judging individual people who are on trial, in court, where rules of evidence apply, and judging an entire class of people who all seem to react the same way (which is to say, inertly, with no apparent emotions). If, say, you're in a room with 500 academics, none of whom shows much sentiment in response to an event that 'normally' would provoke sentiment, I think it's fair to at least wonder whether there's something about academics that makes them...a bit cold and dispassionate. Yes? No?"

Steve, the way think about your fellow college professors is the way the average juror makes decisions unfortunately. Judging others by our own filters. Everyone in law knows this and that's what most lawyers pray for. No matter what spin you put on it, you were judging your fellow college professors by YOUR standards.

That is how that lady in Texas got convicted of killing her husband without evidence. She got a boob job and the jurors said, "no woman would get a boob job with the insurance money." They convicted the poor woman of poisoning her husband, but the physcial evidence showed he died from a heart defect that he probably was born with. The prosecution painted the woman as a floozy, which might have been, but she did not kill her husband.

No, Steve, you are the average juror.

Steve Salerno said...

Anon, you see it your way and I see it my way (both of us through our own filters, wink). But I still say that if I were on a jury, there is no freakin' way I'd apply some of the "standards" that I hear applied on these shows (or even that I may have applied in judging a whole room full of my peers at that movie screening; that situation was more like the defendant judging the jurors, not the jurors judging the defendant). Here's something sort of funny: Just last night there was another one of those shows, on Dateline, and several of the jurors voted to convict the guy because, they said, he was "too unemotional" when he (according to his version) he found his wife in bed, not breathing. But when Dateline showed the verdict--guilty of first-degree murder--he sat there totally unemotional about that too! I wonder what the jurors made of that.

Anonymous said...

I've got two questions areound this issue:

1. What is it about society that is so fascinated by crime and murder that we need 3 versions of CSI concurrently? and

2. Is the jury system still the best means of ensuring a fair trial?

I can't think of any answers.

Londoner

Voltaire said...

I gave up watching TV years ago because I found the programs so awful. It sounds like Steve might benefit from getting rid of his TV also.

Anonymous said...

"Is the jury system still the best means of ensuring a fair trial?"

No Londoner. If I was innocent of a crime, I would ask for a judge instead of a jury to do my case. If I was guilty of a crime, I would take my chances with a jury and get a stellar defense team. This is all for the U.S. judicial system of course.

Jason said...

Londoner,
Could it be the same stimuli that causes concurrent runs of "The REAL Housewives of ______"....money and more money?