Having spent most of my adult life working in the criminal justice system – variously as arresting officer, police prosecutor, expert witness often working for the defense – I find truth in the common saying that “The United States has the best justice system in the world but it’s still not perfect.”In support of that statement, I offer this, from our friends at Cato Institute.
As always, your comments are invited.
Black’s Law has one chapter that mentions the stuff the prosecution might manage to do in Federal Court. Can give you great incentive to avoid any entanglement with the Federal Court system.
Title of the linked article:
“Blindfolded Juries, Coerced Convictions: Why Prosecutors Often Win Before Trials Even Begin”
Clearly, these Prosecutors are students of Sun Tzu.
Quote of the Day:
“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.” – Sun Tzu from ‘The Art of War’
Our modern (in)Justice System has been systematically rigged so that Prosecutors can “win first” and then go to trial afterwards (if necessary). The defendants are then forced to a trial that they must then “seek to win”. As the article illustrates, the Prosecutors often “win” without going to trial at all, by means of a coerced plea deal.
So, the system is such that not only do the “Odds favor the House” but the deck (itself) is usually “stacked” against the defendant.
On top of that, you have “The Process is the Punishment” aspect of the modern (in)Justice System. A defendant who (miraculously) manages to “beat the rap” still often ends up with years of time wasted, his finances ruined, and (often) his health, and life ruined.
No wonder so many are coerced into accepting “Plea Deals”. Just look at the fate of hundreds of January 6th Political Prisoners for numerous examples. Fighting the State is like fighting the Borg. Resistance is futile.
It is a system which often punishes the innocent and, just as often, fails to punish the guilty.
Instead of depicting Lady Justice with a blindfold, sword, and scales, the modern Lady Justice ought to be shown carrying a lantern like Diogenes of Sinope. Except, instead of looking for an honest man, she ought to be searching (in vain) for justice.
All good, especially the jury nullification education. I would add a prohibition on plea bargaining. Perhaps their research project is necessary before we can get there. I am fully aware that this would gum up the court system but am hopeful that prosecutors would thus be deterred from bring sketchy cases and from charge piling. We also need sanctions against judges who misrepresent the duties and powers of juries.
““It’s still so strange to hear anything on the radio or TV, ‘This person was convicted,’ and the first thing that pops into my head every single time is, ‘I wonder if they were innocent,’” Moore said. “It skews your whole view of the criminal justice system.””
As well it should.
I am generally strongly on the side of LEOs, who often spend their careers dealing with violent, often mentally ill people, never knowing for sure that they will go home that day, but personal experience has demonstrated beyond any question in my mind that bad cops exist, that in some jurisdictions the Internal Affairs departments exist not to weed out the bad ones but to protect violent criminals if they have managed to get jobs as LEOs.
As for prosecutors, I vividly remember running into an assistant prosecutor over a decade since we had gone to high school together. At a party, after a few drinks, he positively gloated in delight, saying ‘I get to decide if people go free or spend the rest of their lives in prison.’ Delight: he wasn’t looking for justice. He was getting off on his own personal power trip. Much as I remembered him in high school. A bully, now with the power of the state behind him.
I have trouble imagining what sort of person charged those divers with felonies. Maybe the same sort who charge Midwest consignment shop owners with felonies for selling 1920s vintage taxidermy owls or Mallards or a 1930s vintage Green Turtle egg.
One of the dangers of the plea bargain system is that it may encourage laziness on the part of prosecutors, who are not themselves convinced beyond a reasonable doubt of the accused’s guilt, but who float an offer on the mistaken belief that only a guilty suspect would accept a plea bargain.
This can be compounded by “practical” advice from defense attorneys who are accustomed to truly guilty clients and who therefore may too-easily endorse the idea of a plea bargain.
Finally, threats to family members to induce a plea should be completely outlawed and form the basis for dismissal of charges. I believe that there are cases of innocent persons accepting plea deals to spare their children from investigation. There exists the implication that the prosecutor can always find something for which to charge the family member. A wrongful prosecution can substantially wreck a life even if it is unsuccessful.
Prosecutorial discretion is a tool for justice when applied thoughtfully by honest prosecutors. However, it can be an instrument of injustice when applied by corrupt individuals, those seeking higher office or those who are easily cowed by poorly informed but potentially violent mob opinion.
“… a tool for justice when applied thoughtfully … instrument of injustice when applied by corrupt individuals….”
Sounds a lot like proper vs improper use of a gun.
Or proper vs. improper use of anything.
Like everything else, a gun (or prosecutorial discretion) is just a tool; whether it’s used for good or ill is entirely up to the person wielding it.
Are prosecutors even allowed to poll potential jurors on their knowledge of “jury nullification” and eliminate those who are familiar with the concept?
That sounds awfully close to asking, “This is a defamation trial concerning social media posts the defendant wrote about the local school board. How familiar are you with the First Amendment to the United States Constitution?” And then eliminating anyone who knows what the First Amendment says.
The First Amendment may or may not be at issue at trial in that hypothetical example, just like jury nullification may or may not be an issue in a real-life criminal trial; the defendant may indeed be guilty and fully deserving of whatever punishment is allowed by law. But the process and question seems designed to weigh against the defendant’s Constitutionally-protected rights by ensuring a jury pool ignorant of their prescribed duties and powers.
On that note, a few more questions for anyone with the knowledge to answer them:
– Are there any penalties for a juror familiar with jury nullification who claims they don’t know anything about it? (Or in the hypothetical, who claims they don’t know the First Amendment when they actually do?)
– Is it against any law or rule for a jury to ask what penalty a defendant could face if found guilty? (And as support for asking, claim they want no part in potential 8th Amendment violations?)
– Is it against any law or rule for the jury to include their recommendations on sentencing when returning a guilty verdict?
– Could an informed jury in the Turner case (from the linked Cato article) have found Turner guilty but nullified the mandatory minimum sentencing laws, not broadly, but as applied to Turner individually?
– Finally, the judges (both trial and appellate) in the Turner case were shocked at the severity of the punishment for relatively minor crimes, but were powerless to change it. However, it’s my understanding that the judge writes the jury instructions, with input from both the prosecution and defense counsel. What stops judges — who are or should be fully aware of the potential punishments, including mandatory minimums — from informing juries about their full powers of nullification in their instructions?
While I like the Cato Institute’s idea to “audit” plea deals by instituting a “trial lottery” — any plea deal has a random chance of getting a full trial; if found guilty the plea deal goes into place, if acquitted the defendant walks, if a mistrial or deadlock happens they either get re-tried or get the plea deal; and records compared to exonerations from guilty pleas to see if the rates match — such a “solution” is both unlikely to happen AND a massive change to the system, with a large cost imposed on both the state and defendants (I highly doubt defense counsel and expert witnesses will work pro bono just because it’s a lottery trial).
Wouldn’t it be easier and simpler to require — by law if necessary — that juries be informed about their full Constitutional duties and powers, rather than rely on a new random “audit” process or the odd educated juror to slip through the highly-biased selection process?
Wouldn’t it be easier and simpler to require — by law if necessary — that juries be informed about their full Constitutional duties and powers, rather than rely on a new random “audit” process or the odd educated juror to slip through the highly-biased selection process?”
Arrested suspects are read Miranda rights. Maybe juries could be read their duties, responsibilities and rights like jury nullification.
Arrested suspects are read their Miranda rights because of a SCOTUS ruling (Miranda v. Arizona [1966], after which the rights/warnings are named).
It would likely take another SCOTUS ruling to get juries read their duties, powers, and rights. And the “standard” reading would likely be named after that case.
But will SCOTUS ever grant cert on such a case?
Alternatively, it could take an Act of Congress to require juries in criminal trials to be read their full duties, powers, and rights. Such a law, if passed, would almost certainly be challenged by States’ Attorneys (mostly but not universally from Blue states), and the Circuit Courts are likely to split on the issue of whether it’s Constitutional to require it.
On second thought, that sounds like a fast-track to SCOTUS.
Time to call your Representatives and Senators?
Thanks, Archer. I can frequently theorize solutions to problems, but my solutions don’t work in the real world. What’s the problem? Human nature fails again and again. Just look at history, (as you did).
We see this very injustice played out against lawful citizens being drug through the court system following what should be an obviously legitimate self-defense encounter. The citizen is then victimized by a court system trying to “make a statement” or succumbing to mob threats for political ends.
“The only thing I can do is express my displeasure,” Judge Ellis said. “I chafe a bit at that, but I follow the law.”
Wrong, Judge Ellis. Your job is not to follow the law. Your job is to see that justice is served. If that means a longstanding precedent has to be overturned, then you should have the courage to overturn it.
Before the American Civil Law, slavery was legal in some states. Everything Hitler did was legal. It is clear we should not obey unjust laws. If a judge’s job is simply to follow the law, then his or her job can be done by a computer.
We have made such progress in the fields of science, technology and medicine. Too bad the legal field is regressing (along with art, music, education, marriage and family life).
Before the American Civil WAR, (not Law).
“I follow the law” sounds a lot like “I was only following orders.” Too bad it can’t have the same result.
Indeed. Unjust and/or unconstitutional laws are supposed to be null and void, just like unjust and/or unconstitutional orders.
So why do judges feel bound to them? Especially since the judge has the option to rule a law unjust or unconstitutional as applied to the particular case before the court at that moment. He/she doesn’t have to rule it unconstitutional in all cases.
Jurors need to understand that THEY are the ones that decide the verdict. They don’t HAVE TO find the defendant guilty, no matter what the prosecutor may say in trial. One need only look at the ATF to see what our “justice system” has become. Criminals committing actual murders with illegally obtained firearms and no task forces chasing them down while ATF agents go door to door to jam people up for triggers or other do-dads that they now deem to be machine guns. Too many agencies with too many employees out creating crimes from whole cloth just to justify their budgets.
@ Mark – “One need only look at the ATF to see what our “justice system” has become.”
Amen! Just look at what the ATF did to Patrick “Tate” Adamiak. See this link:
https://freedomfortate.org/
They railroaded this young man into a 20 year prison sentence by “rigging” a non-firearm to make it fire a single shot. Then, with that under their belt, they charged him with having an unregistered machine gun!
This is another case where President Trump needs to take out his “Pardon Pen” to undo some more damage caused by the Biden Administration.
The way the ATF agents acted toward Patrick “Tate” Adamiak is criminal. He needs to be reimbursed for his damages.
I’ve always been blown away by the ATF’s FTB finding that a part or device can be “readily converted” to a firearm or machine gun because they’re able to do it…
… with a team of fully-trained gunsmiths and machinists … in a fully-equipped machine shop … and essentially unlimited time, budget, and materials…
… and judges go along with it.
The vast majority of us aren’t trained gunsmiths or machinists and don’t have those resources available, so “The FTB was able to” doesn’t seem a just and fair rubric by which to make that determination.
The jury members are bound to make their determinatun based on law and facts.
Amongst those facts MUST be included, when applicable, details like possible sentence, how the prosecution arrived at the charges being laid, including things like stacked charges, etc, and he background/history of each witness and how LE came into cintact with the witness and their possible role in the incident being tried by the court. And during the evidence presentation, such details also must be revealed clearly to the jury.
The jury selection process MUST also be cleaned up. When introducing testimony from their pool of criminal witnesses in their “pool” this must be fully disclosed including the nature o the criminal charges/convictions of the witness. Those witnesses must also be clearly informed that should they be caught out in “bearing false witness” against the accused, THEY will be sentenced to serving the sentence the accused would receive if the information were true. serve if the information were true. (this has a rock solid base in biblican truth. It also reminds me of certain dirty Dallas (?) copper whose lies resulted causally and proximally in the deaths of a totally innocent couple.)
More, juries MUS be fully edicated on their responsibilities as jurors, which will include their discretions allowable for reaching a verdict. And NO jury can be pressured to “reach a decision” because its friday afternoon and the judge waants to go home early.
To learn more about jury nullification and its roll in our justice system check of the Fully Informed Jury Association at FIJA.org
I’m a regular and long-time monthly contributor.
*role
Our current system is not something that any fair minded person would support.
The judicial system would also be greatly improved if the prosecutors who decided to “get” a defendant, then pushed the legal system to do so, were scourged from the profession. (Which would also relieve some of the caseload.) And no, I originally wasn’t thinking about our current President’s persecutors (not a misspelling), but those who charged Martha Stewart with insider trading and couldn’t prove it, then threatened to indict her for perjury by comparing various interrogations for minor differences until she finally pled out.
But now that I think of it, campaigning for office on the platform of putting a presidential candidate in jail should blatantly qualify.
It would also help if a whole raft of non-violent felonies were reclassified as misdemeanors, if not eliminated. Like Anthony Brasfield in Florida, who wanted to impress his girlfriend and was arrested for the *felony* of releasing balloons:
https://www.cbsnews.com/news/anthony-brasfield-fla-man-charged-after-releasing-balloons-into-sky-report-says/
Wow! The only thing worse than that is people getting arrested in the United Kingdom for silent prayers.
The “silent prayer” thing resonates. For example: Jews in Jerusalem aren’t allowed to pray at the Temple Mount; it’s under Arab/Muslim control and they prohibit non-Muslims from praying there, even silently.
What does that say about the state of law in the U.K., that they do essentially the same thing?
The US criminal justice system is a mess. There is esseentially nothing in place to ensure competence on the part of judges and prosecutors.
At the same time, starting with the Warren Court, an immense array of technical complications having nothing to do with guilt or innocence have been added, which greatly increased the cost and duration of trials.