Saturday, May 29, 2010

Innocent till jurors start to really dislike you?

Here's yet another case, tragic in countless senses, where overzealous prosecutors jumped the gun and focused on the wrong suspectthe father, who spent eight months in jailbefore learning six years later that someone else, in this instance a convicted sex offender, had done the grisly deed. The remarkable work of The Innocence Project teaches us that these episodes are hardly a rarity. All told, as of this writing, Scheck, Neufeld et al have freed 254 convicts who were wrongly (and, too often, wrongfully) convicted.

This is why I've said many times that the standards of evidence, or what we call evidence, are way too lenient. (See particularly here and here. If you're a glutton for punishment [no pun intended], you might also want to read my long September '09 piece for Skeptic, "Criminal Injustice.") I am gravitating more and more to the position that if there isn't verifiable physical evidence linking someone to a crime scene, no charges should be filed. Among other things, this would ameliorate the justice system's racial inequities. It would eliminate convictions based on circumstantial evidence. And it certainly would rule out verdicts that flow from jurors' impressions of a defendant's demeanor at trial: As I've also said on several occasions, that sort of vague, inferential "fact"-finding, rooted in nothing more than a defendant's Q-score and/or wildly fallacious assumptions about "how people ought to behave" in such circumstances*, is so arbitrary, subjective and prejudicial that it has no place anywhere near a court of law. Its specific exclusion should be part of a judge's instructions to the jury.

Would this result in at least some guilty parties going free? Yes. But I go by that old saw about how "it's better that 10 guilty men go free than that one innocent man is convicted." After all, you can't exonerate someone who has already been executed.

* which of course is itself largely rooted in jurors' perceptions of how they would behave, which has zero bearing on the matter at hand.


RevRon's Rants said...

I think I'd go one step further, Steve, and suggest that defendants' identities not be made public until such time as they had actually been convicted of a crime. Far too many lives have been ruined when individuals are portrayed in the media as "persons of interest" or "suspects," only to be found innocent later. The stigma of being identified as a suspected criminal lingers far longer than a no-bill or a not guilty verdict.

Steve Salerno said...

That's a good point, Ron, though probably unworkable. Reminds me of the old controversy over the dichotomy in rape cases: The suspect is identified, but the victim isn't. Rarely does one see such a stark example of political correctness translated into formal policy. The old argument went, "Well, it's too stigmatizing for a woman." First of all, why is it stigmatizing to be raped? (Yes, I realize that sometimes, perhaps, it is...but it shouldn't be. No more than it's stigmatizing to be robbed, beaten, etc.) Secondly, and more important, in my view: Is that rationale supposed to imply that it's not stigmatizing to be accused of rape!? Lives have been ruined, and continue to be, especially in the always-tricky area of date-rape.

Steve Salerno said...

Incidentally, it's my understanding, perhaps erroneous, that in the UK, there is no publicity allowed in newspapers/media once an arrest is made. Neither the prosecution nor the defense is permitted to comment or release info. (Thus there are no Nancy Graces fanning the fires of public condemnation of a suspect.) Would one of our contributors from across the pond care to weigh in on that? Am I correctly understanding the rules?

RevRon's Rants said...

"That's a good point, Ron, though probably unworkable."

More unworkable than insisting that attorneys - both prosecuting and defense - strive for justice, rather than merely victory? More unworkable than enforcing dispassionate objectivity on the part of jurors?

So long as our criminal "justice" system focuses more upon political imperatives and relies more upon emotional reaction than upon empirical data than actual justice, I don't think that "justice" is a viable concept at all.

I can remember a time (and not that long ago, here in Texas) when a college kid, caught smoking a joint on his own front porch, would face a stiffer sentence than would someone who had been proven to have raped and murdered someone. To make matters worse, the half-joking statement that "he needed killing" is, to this day, more viable than one would think.

roger o'keefe said...

It no longer shocks me that at a time when crime fighting is a top concern and the number one blight on inner cities, you would propose that we go softer on criminals. Again Steve, I find this mind boggling for someone with your stated position on the whole victimization silliness. I don't want to get personal but I almost have to wonder what happened in your own background that twisted your thinking around this way. Worry more about the real victims and less about the thugs.

RevRon's Rants said...

I think we *are* worried about the real victims here, Roger. Or don't you think that a person whose life is ruined as a result of a false accusation and/or imprisonment qualifies as a victim?

Remember, it could happen to you as well as anyone else. And it could take something as seemingly insignificant as you being accused of a crime by someone you had offended.

RevRon's Rants said...

Just to be clear, I can't see where striving for fairness is synonymous with being "soft on criminals." Just too much of a stretch, if you ask me.

Crimes - and criminals - should be prosecuted to the fullest extent of the law, while still holding to a notion that is supposedly sacrosanct in our society, but which too many people are eager to dispose of: Innocent until PROVEN guilty.

Cosmic Connie said...

This may be only marginally relevant to the larger discussion, but where would a "no publicity" rule/law/policy leave those of us who have publicized the well-documented misdeeds of, as well as the allegations against, the likes of James Arthur Ray?

I do agree in general with the thoughts expressed here on the need for an overhaul of the U.S. criminal justice system. Roger's protests notwithstanding, I don't think it is either "pro-thug" or "anti-victim" to demand that we take steps to remove factors such as politics and emotion from the process.

Anonymous said...

In the UK there are reporting restrictions once a person is charged, the matter is then deemed 'sub judice' and the extent of public media comment on a case is severely curtailed.
I consider that a good thing, but prior to that charge the police use the media extensively to gather information, also in the rape cases a good thing. There is invariably a string of previous victims who come forward once an arrest is made, the women too scared to speak out until the rapist is in custody.
In rape cases there is a 6% chance of a conviction, no change since the 70's, so I don't think that the men accused have much of a case when claiming victimhood. Even the police find that figure deplorable, in Liverpool where much greater protection has been given to women who come forward that figure has jumped to over 20%.

Having sat through several exhaustive criminal and investigative proceedings in the UK, I think our current judicial system, while tortuous and protracted, does a fair job of scrutinising evidence and arriving at a fair conclusion.

Anonymous said...

I have to agree with Roger, you're going in the wrong direction. Protect the normal people, not the crazies. Would you carry that logic into airport security? I think in today's world we need to err on the side of caution.

RevRon's Rants said...

I agree with the need to err on the side of caution, but think that caution needs to be implemented when taking actions that could potentially ruin an innocent person's life.

There have been so many instances, for example, of adolescents who get angry at adults and accuse them of horrendous things out of revenge. How would it serve justice any less to withhold broadcasting the accusations until it had been ascertained that an actual crime had been committed? IMO, using such restraint would actually serve the cause of justice more fully. If a crime is committed, the perpetrator faces appropriate punishment. If subsequent investigation proves the accusation false, or indicates that the initial suspect / person of interest is not the perpetrator, an innocent individual will have been saved from deep embarrassment at best, and a ruined - or terminated - life, at worst.

And don't delude yourselves into thinking it can't happen to you. It can.

RevRon's Rants said...

Connie, I think the key phrase in your comment is "well-documented misdeeds."

We just seem all too quick to condemn, with little regard for the facts in any given situation, much less for the damage our condemnation can do to another's life. Perhaps we'd do well to look more closely at our own anger before we start venting it on others.

Steve Salerno said...

Connie et al, I was as outraged by the whole JAR debacle as anyone, but in time even I grew uneasy about the "piling on" atmosphere--and I tweeted to that effect. We can all get as snarky as we please, and I think his own statements, behaviors and public documents are fair game, but the man is still entitled to a fair trial and the presumption of innocence. Isn't he?

These are difficult issues, balancing individual rights against freedom of the press and the public's right to know. Too often nowadays, however, it becomes a 3-ring circus, and the whole case is tried on Nancy Grace, Larry King and The View.

Anonymous said...

With regard to the question of why it is stigmatising to be raped, I would ask why cases of male rape, supposedly endemic in the US prison system, rarely come before the courts?
Also did so few of the male victims of the paedophile priests fail to speak out?
Rape is rightfully regarded as a particularly heinous crime and dealt with differently than other crimes because its an expression of power, control and domination over another person, it is deeply psychologically invasive, as well as a physical violation. The judicial process is often experienced as a further trauma to an already traumatised victim of crime. To suggest that victim and perpetrator are on an equal footing in this process is derisory and sounds to me like special pleading on the behalf of rapists.

RevRon's Rants said...

Anon - Victim and perpetrator are not on "equal footing," but I think we owe it to our own proclaimed values (if nothing else) to suspend condemnation until such time as we have clear evidence that an individual is indeed the perpetrator. The standard approach nowadays is little more civilized than the vigilante lynchings and witch-burnings so prevalent in our history.

On a lighter - yet somehow unsettling note...

NormDPlume said...

The Innocents Project, and their Hollywood mouthpiece, Mike Farrell, spent the better part of a decade trying to free the guy who stalked, raped and murdered my sister. They did dozens of interviews; produced a slick DVD second-guessing the police detectives, the prosecutors, the judge and the jury. "A tremendous miscarriage of justice" and "blood was on our hands" was their mantra. And they did all this while the convicted killer dodged a DNA test.

Eventually, the DNA was obtained and it proved that the detectives, prosecutors and jury did a proper job and the stalker/rapist/murder was (gasp!) also lying.

Not only did Mike Farrell and the Innocents Projects not offer an apology for their misguided efforts, they refused to apologize when confronted with the facts. And they were condescending, arrogant, and patronizing in their treatment of my sister's family.

Nobody ever admitted a mistake. There was no effort to see why they were trying to free a guilty stalker.rapist/murderer; or why they would defend a person who failed to submit to a DNA test. And there was no admission of error for wrongly stating that a huge conspiracy was behind a miscarriage of justice.

It's a tough world out there, Steve. Even the "good guys in the white hats" can be wrong and inflict horrible damage on those who least deserve it.

Steve Salerno said...

Norm: As you are aware, of course, I know your story, and it's wrenching. Over the course of my career I have spent my share of time talking to families of murder victims, and there is no way to articulate their grief, if you haven't been through it. I have sat there as the awful exhibits were paraded into court, one after another, demonstrating at several times actual size the extent of the anguish and brutality inflicted on people before they (almost mercifully) died.

That is science being used in the service of law--though I think there is seldom a need to show horrific head wounds at 500% magnification, except perhaps to tug at jurors' natural sympathies. I would hope that the same science could be used in making sure we've got the right perp in the first place. Had DNA been available at the outset, the man who raped and murdered your sister could have been identified and dealt with properly (and more finally) from the first, thus sparing both you and society a great deal of cost, in different ways. I'm asking nothing more or less than that: Get it right the first time, get it right based on reliable science, and get it adjudicated. In an ideal world, DNA tests would be performed by statute on every defendant, no exceptions, just as they should be performed on all mothers, fathers and babies at birth. Some things are too important to leave up in the air.

Anonymous said...

Steve, what you have just suggested would cause a massive riot here in the uk. There is a massive resistence to a national DNA bank here - something about a big brother society having all our imformation and using it to their advantage.

There was recently here a call to extend the anonymity of the rape victim to the accused as a serial rape accuser accused two guys of raping her on seperate instances. Both were found not guilty but one commited suicide.

The suggestion did not go down well.


Anonymous said...

Taken from a very informative article on the dumping of paedophile priests in Alaska, which goes some way to showing the difficulties involved in prosecuting and securing convictions in rape cases and the absurd nonsense of giving anonymity to these rapists if, by some remote chance, they do come before the courts. (The entire article is worth a read, for those still with any sentimental attachment the notion of justice in these matters)

"In September 2005, former Cardinal Joseph Ratzinger—who'd just become the pope—asked the justice department of the Bush administration to grant him immunity from prosecution in sex-abuse cases in the United States. Ratzinger, the onetime head of the Vatican's Congregation for the Doctrine of the Faith, was accused of "conspiring to cover up the sexual molestation of three boys by a seminarian" in Texas, according to the Associated Press. Ratzinger had "written in Latin to bishops around the world, explaining that 'grave' crimes such as the sexual abuse of minors would be handled by his congregation. The proceedings of special church tribunals handling the cases were subject to 'pontifical secret,'" Ratzinger's letter said. The Bush administration granted Ratzinger the immunity
In 2007, the Archdiocese of Los Angeles agreed to pay $660 million to more than 500 victims of clerical sex abuse."

The article cites the first known recorded instance that the Catholic Church addressed the problem of paedophile priests, A.D. 305!:

"The history of child molestation in the Catholic Church goes back centuries. The first official decree on the subject was written at the Council of Elvira, held around A.D. 305 near Granada, Spain. The precise history is complicated, but the council is traditionally believed to have set down 81 rules for behavior, the 71st of which is: "Those who sexually abuse boys may not commune even when death approaches." It was the harshest one-strike policy: If you're caught abusing a child, you are not only laicized, but permanently excommunicated—damned for all time.

The other major condemnation of clerical sex abuse was The Book of Gomorrah, completed by radical church reformer Father Peter Damian (a Benedictine monk, as it happens, who became a cardinal) in 1051. He appealed directly to the pope about the abuse of children, as well as consensual sex among clergy—in howling language: "O unheard of crime! O outrage to be mourned with a whole fountain of tears!... What fruitfulness can still be found in the flocks when the shepherd is so deeply sunk in the belly of the devil!"

NormDPlume, I offer my heartfelt sympathies to you and your family. There are, without doubt, miscarriages of justice but law enforcement and the courts generally do a good job in such heinous cases, often in the face of entrenched and organised opposition that actively works to obscure and confuse these issues.

Anonymous said...

There was further excerpt from the same article that I found particularly illuminating, the simple reasoning behind these cover-ups:

'Why does the church keep sending these priests, who have come to be such a major liability, back into ministry?
"It's all about keeping the stores open, keeping the revenue rolling," Wall says.
The Alaskan provinces in particular, Wall says, were a source of revenue—not from the Native population living there, but from parishioners in the lower 48 who were encouraged to donate for the Native ministry up north.

"You could raise thousands to fund a mission that cost very little to run," Wall says. "The profit margin is huge."

RevRon's Rants said...

As is so typical nowadays, we have two diametrically opposed and extreme ideologies, each of which's validity is dependent upon the absurdity of the other.

Justice denied to one constitutes the abolition of justice itself. The deplorable actions of some, such as the media types that Norm described or the well-documented malfeasance of the Catholic Church deny justice to the victims of crimes, just as the "outing" of an individual who is subsequently exonerated denies justice to individuals who happen to be in the wrong place at the wrong time, or who inspire unbalanced individuals to do them harm.

Pursuing all available legal remedies against the perpetrator of a crime is essential, yet if we are to remain a free nation, citizens need to be able to feel secure in the knowledge that they will not be wrongfully punished, even if they are wrongfully accused. Not publicly identifying a suspect until there is clear and compelling evidence of guilt does not insulate the suspect from effective prosecution. It merely denies the public its place at the feeding frenzy. Surely, our desire for a just system can outweigh our voyeuristic appetites.

For those like Norm who have lost a loved one to the actions of a violent criminal, the need to see the perpetrator punished is compelling, typically well beyond the scope of our legal system. I'd have likely found myself on the other end of the criminal justice system if faced with the kind of callous disregard that Norm faced. On the other hand, I would want to know - beyond the legal definition of "reasonable doubt" that the individual being punished was the actual perpetrator, and not someone who merely "looked good" for the crime and could be easily prosecuted. When the trial is over, and the defendant is taken away to prison (or the needle chamber), I want to know for certain that an innocent person isn't sitting in a cell, while the person who actually committed the crime goes laughingly on their way, in preparation for their next victim. And the only way to realize that goal is to prosecute from a place of pragmatic objectivity, rather than convenience or a desire for retribution. We simply cannot do that when the situation is turned into a circus for the public's entertainment or a public lynching before the trial even begins.

By the same token, allowing the influential and powerful to get away with crimes and cover-ups not only subverts the concept of justice, it feeds into the public demand for the lynchings. As always, somewhere between the two extremes lies the answer; but we have to desire justice more than we desire the extreme. And it doesn't look like we're there yet.

Anonymous said...


Have you ever considered that perhaps there is no answer, that we have no choice but to deal with the inequities of life in the most clear-eyed and pragmatic manner possible, fully accepting that humankind enmasse is not going to have a conversion experience and become balanced and decent in short order?
For clear-eyed pragmatism we need good information and a willingness to look at the realities of a given situation rather than overlooking the obvious (that scumbags, like the poor, will always be with us) in favour of an idealistic future world where everything will be perfect.

roger o'keefe said...

Ron, I can't match you for eloquence but I hope you'll permit me to make my points in my limited way.

It might shock you that I could even agree with your argument in principle. The problem is, this is one of those areas of life where any supposed middle ground automatically works to the extreme benefit of the other side, in this case the criminal.

As it is the system is weighted almost impossibly against the prosecution. You appear to be calling for "fairness". True fairness would force the defense to put on an affirmative defense, proving innocence, just as the prosecution must prove guilt. Then the jury decides. As we know all too well, the defense in this nation is only burdened with establishing so called reaonsable doubt by poking a few random holes in the prosecution's case. The defense's logic doesn't even have to add up. They can argue ten different alternative scenarios at once hoping that any one such scenario hits paydirt with jurors. Let's face it, every prosecution will have a few holes in it. If the defense finds that weakness, they win. That's our system, so be it.

But if you put additional burdens and barriers in place against law enforcement and prosecutors, what you're doing in effect is completely disenfranchising victims of terrible crimes like "Norm D Plume". Hardly anyone would be convicted, and that is surely not the intent of the justice system. There would be no justice at all.

RevRon's Rants said...

"if you put additional burdens and barriers in place against law enforcement and prosecutors, what you're doing in effect is completely disenfranchising victims of terrible crimes like "Norm D Plume". Hardly anyone would be convicted, and that is surely not the intent of the justice system. There would be no justice at all."

Nowhere have I suggested that we place any barriers in the prosecutorial process, Roger. I merely suggest that the process be handled within the criminal justice system, rather than in the court of public opinion. Allow the state to prove that a suspect has actually committed a crime before levying punishment. As it stands now, an individual's life can be effectively destroyed by a mere accusation, even if the accusation is false.

As to Anon's suggestion that we "deal with the inequities of life in the most clear-eyed and pragmatic manner possible," that is exactly what I think we need to do. The notion of lowering our institutionalized standards of justice to make them consistent with the lowest common denominator in our society is, IMO, completely contrary to the ideals upon which our system is based.

I don't expect us to realize that "perfect world," but think we should continue to strive for improvement over what we have now, which fails the "justice" litmus test on many levels, for victims and suspects alike.

Anonymous said...

There are certain cultures (mostly middle-eastern) where male child rape is endemic, similar to the situation supposedly existing in US prisons.
What is interesting about these situations is that the perpetrator in both the middle-east and the US prison system is not regarded (by themselves and others in the milieu)as having any homosexual tendencies at all, while the victim is instantly labelled 'homosexual' and thus of a creature of a lesser order by virtue of being victimised in this way.
I think that this clearly shows the stigma attached to being a victim of rape, that it is always a crime of power and domination and that despite all the apologists and their well worn excuses, sexual desire no part in the act.

Steve Salerno said...

Anon 6:48, I think your comment contains an awful lot of sweeping assumptions--and also implies that homosexuality is, in and of itself, a stigma. Or are you just saying that men who rape other men pervert the concept of homosexuality by using it in a stigmatizing fashion...? In any case, that argument has funny overtones to me.

I would also ask: Do you really think that female victims of rape are stigmatized in our society? Let's leave aside for a moment some of the "gray area" offenses like certain instances of date rape or a case where a co-ed gets hammered on beer/drugs and then decides to have sex with the entire football team. You're really saying that victims of actual, incontestable rape--where a woman is intercepted on her way home from work and is pulled off into the bushes and brutalized--are not sympathetic figures to the vast, vast majority of people? I don't buy it.

If so, however, it is these "lesser forms" of rape that have muddied the waters for everyone. While it's true that a woman has a right to wear vulva-hugging shorts and a see-through top as she jogs through the park at twilight, I would also argue that I have a right to carry wads of hundred-dollar bills in plain sight as I walk through the very worst area of the city at 2 a.m. Both acts are pretty freakin' stupid. What's more, if I got robbed in the latter case, I'm betting that the very first thing you'd say to me is, "You were asking for it..."