American justice system ignores science in the pursuit of convictions
nbcnews.com
nbcnews.com
And therein lies the problem. In every trial, you have professionals (lawyers) playing against novices (jurors), and since the prosecution automatically gains special believability status in the eyes of jurors, they hold the upper hand. To make matters worse, prosecutors have the automatic full cooperation of police, whereas the defense has no such guarantees. And since prosecutors are gauged by their wins, and high ranking prosecutors are the most likely to be voted/appointed into coveted judge seats, there is a perverse incentive to prosecute the innocent.
But since the system operates on the fiction that all members are equal (much like all sides are equal in a game of poker), it's easy to brush aside the reality that they are most certainly not equal, and that the more experienced has such a huge advantage that it's laughable to even call it fair.
In a system with professional judges, that wouldn't fly, as the trained judge would see through their shenanigans and rebuke them.
Article is a quick read and does a good job explaining the mindest of people who plead guilty to crimes they did not commit: https://www.cbsnews.com/news/inside-new-orleans-public-defen...
While in THEORY it should give them more time to prepare, more than likely you'll get 20~30 minutes of prep time either way on the day of your trial but spend longer in jail just waiting.
If you have a private defender, it might make a lot of sense to waive, since they can use that additional time to assemble enough evidence for either court or a better deal.
But in modern US "justice" even if you're innocent expect to take a plea. That's just how it works now.
That makes sense, but there's a coordination problem. If everyone invoked their right to a speedy trial, the system would indeed collapse under its own weight. But the first set of people to use that strategy would be at a disadvantage since their own lawyers would have less time to prepare. Everyone wants to take advantage of this right but no one wants to be the sacrificial lamb, especially since there's not even a guarantee that enough other people will follow suit (your "sacrifice" might really be for naught).
Yes, and it is glorious...from the perspective of a defense lawyer. Because as soon as the DA realizes they can't just railroad defendants, they start getting realistic about the plea bargains they offer and which cases to triage due to lack of evidence.
I've seen it happen before (the entire local defense bar refused to wave speedy trial rights) and the DA held out for about 1.5 days before buckling.
The only cases I ever lost were bench trials (before judges, no juries) where the judges refused to accept scientific challenges (backed by actual research) to the prosecution's pseudo-science evidence.
The prosecutorial advantage is even bigger in grand juries (ie. the juries that decide whether the suspect will be charged or "indicted" with a crime), where only the prosecution's side is heard and the standard used to indict is much lower than the "beyond a reasonable doubt" standard used in a real trial. The running joke being that a good prosecutor could indict a ham sandwich.
It's after indictment but before trial that the prosecution pressures the defendant to take a plea deal (ie. plead guilty to reduced charges) to avoid risking going to jail for a much longer time and bearing the insane expenses of a trial.
To my memory, in the US only something like 6% of indictments actually go to trial, where (as you point out) the prosecutors have a huge advantage. 94% of the time inicted defendants plead guilty and never actually get a trial. In some cases, like with Aaron Swartz, they commit suicide.
So for the overwhelming majority of cases, it's not what happens at trial that matters (as they never get a trial), but rather what happens in the even more skewed for prosecutorial advantage grand jury that matters -- a grand jury where defendants and defense attorneys are not even present and where their side is not heard.
>90% percent of defendants plead guilty before trial because 90%+ of defendants are actually guilty of the crimes they've been charged with. In most cases, the defendants accept their guilt and are simply trying to get the best deal (i.e., least prison/jail time) as they can.
Except that a disproportionate percentage of poor defendants (who can't afford expensive lawyers) plead guilty before trial because their overworked and underpaid public defenders advise them to.
Logic is that pleading guilty before trial gets you a shorter sentence than going to trial. The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you).
The American Justice system is particularly unjust to the poor.
Edited for clarity
No, a disproportionate percentage of poor defendants plead guilty because they're actually guilty and their underpaid public defenders have advised them its not worth the effort to fight the charges--for the PD or the defendant.
Especially since, as you helpfully pointed out, the DA is less willing to give shorter sentences to guilty defendants who demand a trial. In this context, "shorter" meaning shorter than the likely sentence imposed by the judge after trial, usually even shorter than the statutory range imposed if the defendant is found guilty at trial. This is why defendants plead before trial--in many jurisdictions its the only way you can get a sentence less than the range unless you have a fantastically expensive lawyer (like the lawyer for Brock Turner, the Stanford Student Rapist).
The alternative is going to trial and being incorrectly found guilty and getting a larger sentence for a crime you didn't commit (your public defender has limited time/resources to make a great case for you).
You appear to have a Law & Order understanding of how criminal defense works. In the real world, even private attorneys spend most of a case attacking the DA's case, not building their own case. The Defendant doesn't need to prove anything.
Every part of the American justice system pushes people towards confessions:
a. People are sent to jail pre-trial. This automatically disrupts their lives, as even a few days in jail will often cost them their jobs. [1]
b. People can be kept in jail for months pre-trial, costing them their houses and possessions as well.
c. The government can freeze or seize a defendant's assets (effectively without cause), rendering them incapable of defending themselves. They can (and do) hold these assets hostage to coerce a confession. Thankfully, the worst of these practices have been struck down recently [2]
d. Being unable to pay for your own defense lawyer gives you at best an overburdened public defender (poor defense), and at worst no legal representation whatsoever (no defense) [3]
e. Bail eliminates the only remaining way to avoid jail for the poor or those with frozen/seized assets [4]
f. Overly harsh penalties make it too easy to completely destroy someone's life forever. Even 10 years is ridiculously high, especially considering there's no path to reintegration into society in America. You're pushed outside and left, destitute, to your own devices. It's far preferable to start with a scarlet letter now than in x years, older, less employable, with zero assets.
g. Plea deals, while well intentioned, have become de-facto extortion due to the other problems in the American system. "Take the deal or else we'll keep you in jail, and maybe even tack on a bunch of extra charges to keep you here for decades". Even without this problem, plea deals are a corruption of justice. Either someone is guilty and deserves the punishment, or they don't.
A conviction rate above 80% is automatically suspicious, simply because no police department is that efficient. America's conviction rate rose from 75% in 1972, to 93% in 2012, and is still rising. Couple that with an incarceration rate rivaled only by authoritarian regimes, and I'm VERY suspicious of statements like "90% of defendants are guilty".
[1]
https://www.americasquarterly.org/aborn-prisons
[2]
http://www.abajournal.com/magazine/article/court_says_crimin...
[3]
https://www.cbsnews.com/news/inside-new-orleans-public-defen...
[4]
https://eu.tallahassee.com/story/news/2018/08/23/federal-jud...
https://eu.usatoday.com/story/opinion/policing/spotlight/201...
If you’re a defendant and you think you have a better shot with a jury, you choose a jury trial. If you think you have an unsympathetic but legally justified case, you pick a bench trial. Either way, it’s your choice, and I have difficulty understand how it could be inferior to a system where you’re deprived of the choice and subjected solely to the judgement of an unelected permanent bureaucracy.
I can assure people that years of legal dedication and training and the connections to get a judgeship does not by any means mean that someone is a good judge, and I’m becoming increasing convinced it has a pernicious impact on the legal system as a whole.
But professional judges oversee jury trials. I sat on an 8 week trial and the judge very tightly controls prosecutorial conduct, with usually the defense raising objections.
Also just from the plot summary I fail to see how it could even be relevant.
(Also: Like Camus' The Stranger, Kafka's Metamorphosis is an extended metaphor, so a plot summary won't help much.)
There were acquittals in 3/5, mostly on the basis of the prosecution doing a poor job of questioning their police, or the police playing dumb for reasons unknown. In one case it was hard to acquit as I think the defendant committed a serious crime, but the prosecution case sucked.
I'd love to see the differences between counties and type of defense representation and jury selection. How much of this is due to awful public defender practices or other abusive practices?
The public defender is key as jury selection is critical.
Unfortunately, 99% of criminal cases are where IP address "science" (if you can call it that) typically follows the formulaic story where somebody starts downloading certain graphical images, agents working the pipe or the other end log the IP, the ISP identifies the IP account's subscriber (after the law enforcement agency compensates them for their time), and then a search of the corresponding premises is authorized. Luckily I'm not dealing with that.
But in that case, the IP address forms the Court's idea of probable cause. If the IP address is a single family home with a single computer and no wi-fi, seems pretty open-and-shut. If it's a Starbucks or a workplace, and that actually results in a team of agents descending on it and searching and seizing the occupants' computers, then I think most would agree it's an abuse of power.
The challenge the Courts have is that middle category. What if I told you with a straight face that I believe you did something illegal, I have an IP address that used to be yours connected with that act, though no proof it was yours at the time, no proof you were using that location's internet at that time or even there to use it, and no idea how many other people were using the wifi there?
That's good enough to convict until US courts rule otherwise.
I don't think it's that open and shut.
Unless you require every person who has an electronic device to be personally responsible for security bugs on such systems.
You can get owned even if you are careful given the right security holes.
That last point has never been argued ("look here's some malware"), at least in my reading of the caselaw. Most guys (it's always men) just usually confess or plead and then try to argue their way out of it unsuccessfully afterward.
Hitting and killing a kindergartener with your car carries lesser criminal penalties in this country than downloading and storing a GIF that millions of others have already downloaded and stored. Fixing the science discrepancy is only one of many things due for a reckoning in this country.
So say you do have WiFi but you leave it wide open to the public, does that mean you have plausible deniability in IP-address related cases?
"could have been my neighbor, could have been a guy walking down the street using my wifi, could have been anyone"
Law enforcement doesn't have to prove you did it before the search and seizure, merely establish "probable cause". Was it probable it was your computer doing the downloading?
At trial (in the unlikely event it goes to trial instead of a plea deal), then it's supposed to be "beyond a reasonable doubt", but by then everybody (except in the number of cases involving Brady violations) sees everybody's cards.
Except the Court believes the law enforcement officials as to what those cards say, even when it's not what they say. And that's the trouble: not in evidence gathering but in convictions.
Network routers and modems are really bad at logging who accessed what from what MAC address. Mandating that routers start logging would in practice probably aid civil liberties more than harm them, simply because of the presumptions out there.
It might save you in a criminal trial, if your devices show no evidence of what they were searching for, no signs of being tampered with, etc.
A couple had their house raided partially because some loose leaf tea in their rubbish bin field-tested positive as marijuana:
https://www.washingtonpost.com/news/the-watch/wp/2017/12/19/...
Police using unproven "drug recognition expert" training to "detect" marijuana use via body language:
https://www.11alive.com/article/news/investigations/the-drug...
More on faulty drug testing:
https://www.cacj.org/documents/sf_crime_lab/studies__misc_ma...
https://www.countable.us/articles/17230-kansas-supreme-court...
"The National Registry of Exonerations has documented 553 cases since 1989 in which someone was convicted on false or misleading forensic evidence and later cleared. The growing list of exonerations includes a Texas man whose 1987 murder conviction, based on bite-mark evidence, was thrown out in December, and an Illinois man declared innocent in January in the retrial of a murder case that hinged on dubious ballistics evidence.
But the exonerations likely represent only a fraction of the cases in which faulty forensics sent innocent people to prison, researchers say."
Is there any research estimating how many wrongly convicted people may be incarcerated? How could that even be estimated?
Even after you’ve filtered for all the cases you could want, you’re probably going to end up with a large number. Rechecking all of the evidence in each case to either reaffirm or exonerate the people in prison because of that evidence is a labor intensive task.
I mention this because often on this topics people say "eyewitnesses testimony is always unreliable!" when actually it's a bit more complicated than that.
> Clark's first son died suddenly in December 1996 within a few weeks of his birth, and in January 1998 her second died in a similar manner. A month later, she was arrested and tried for both of the deaths. The prosecution case relied on significantly flawed statistical evidence presented by paediatrician Professor Sir Roy Meadow, who testified that the chance of two children from an affluent family suffering sudden infant death syndrome was 1 in 73 million. He had arrived at this figure erroneously by squaring 1 in 8500, as being the likelihood of a cot death in similar circumstances. The Royal Statistical Society later issued a statement arguing that there was "no statistical basis" for Meadow's claim, and expressing its concern at the "misuse of statistics in the courts".
Even if he's wrong, using just the wrong stats says, well, in a country of >300 million (such as the U. S.) that's going to happen once in a while. Even a smaller country like the U. K., my response would be, "so it could happen, and it wouldn’t be all that outlandish for a case to crop over the course of, say, decades?"
OTOH, I don't care if the odds are 1 in 73 gazillionbillion, it could happen and the prosecution still needs to prove otherwise. We're not playing craps here.
It's like insurance. You might be a really safe cautious driver, and your friend a nutcase. But your insurance doesn't really know who is a nutjob predisposed to accidents ahead of time.
But it's not a mathematical proof. They only have to convince a jury, which is often not that hard.
It occurred to me that they could just have the dogs alert basically whenever they wanted them to.
In practice, they seemed to bring the dogs out when the driver of a vehicle was very obviously high, so it seems like they may have had probable cause anyway, but it still seemed alarming that a dog that can so easily be manipulated is an appropriate way to get into someone’s car.
> The troopers told the pair that VanderWiel’s dog “alerted” on the vehicle’s back side. However, the spot where the dog alerted was out of the frame of the video from [the troopers'] vehicle, the lawsuit said. Convenient. And not at all uncommon. And drug dogs are notorious for false alerts in the field.
https://www.washingtonpost.com/news/the-watch/wp/2014/10/03/...
>Florida v. Harris, 568 U.S. 237 (2013),[1] was a case in which the United States Supreme Court addressed the reliability of a dog sniff by a detection dog trained to identify narcotics, under the specific context of whether law enforcement's assertions that the dog is trained or certified is sufficient to establish probable cause for a search of a vehicle under the Fourth Amendment to the United States Constitution.[2] Harris was the first Supreme Court case to challenge the dog's reliability, backed by data that asserts that on average, up to 80% of a dog's alerts are wrong.
(Also, "up to" should be unpacked; a 95% confidence interval is a lot more informative than a rough upper bound.)
Yes. The dog will pick up on the small (sometimes entirely unconscious) cues that their handler is really, really hoping for an alert.
https://en.wikipedia.org/wiki/Clever_Hans
" horse was not actually performing these mental tasks, but was watching the reactions of his trainer"
In practice, they bring out the dog whenever they don't get consent to search.
This is how street policing works:
1) Have a feeling about a car.
2) Tailgate that car.
3a) If there is an obvious visual justification for a stop, like a broken taillight, unlit license plate, temporary tags in the window, or tinted windows, attempt to pull that car over.
3b) If there isn't an obvious visual justification for a stop, follow very closely for an extended period time until a minor traffic law is broken, or you get a call over the radio to go somewhere else (in which case, end.) When someone "rolls past a stop" or forgets to use their turn signal when switching lanes, speeds by a few mph, or stops short causing you to brake (because you are half a car-length behind them), pull them over.
3c) If they do nothing, pull them over once you get bored with following them and say they were driving erratically.
4) Mention to the driver your pretense for pulling them over while looking them over. If they look poor, give you attitude, or you just don't like them, ask them for consent to search.
5a) If they give you consent, search.
5b) If they don't give you consent, tell them that you have a reasonable suspicion because you smell something, and that if they don't give you consent, they will have to wait at the side of the road for 10-30 minutes for the dog to come. To avoid that wait, they can just give you consent now.
5b1) If they give you consent, search.
5b2) If they don't, wait for the dog (unless you get bored or get a call), when the dog comes, tell them the dog alerted. Search.
6a) If you find something, act accordingly.
6b) If you don't find anything, say you're going to let them off with a warning for the excuse you used to pull them over, get back into car and drive until you have a feeling about another car.
The pretty sad thing is that this process is pretty obvious on the cinema verité cop shows, it's such a standard practice that they don't mind doing it when you're looking. The shameful thing about it is that these shows edit out the 99% of the time that the person has nothing, and that the dog "alerts" and they don't find anything. A pretty cool thing with the new "Live PD" show is that you get to see the dog alerting every single time, and listen to the cop accusations that "you must have smoked earlier, or you must be letting someone drive your car, or else my dog that has never not alerted wouldn't have alerted."
5b) If they don't give you consent, tell them that you have a reasonable suspicion because you smell something, and that if they don't give you consent, they will have to wait at the side of the road for 10-30 minutes for the dog to come. To avoid that wait, they can just give you consent now.
If they have a reasonable suspicion due to smell, they don't need the dog to conduct a search. The point of using a dog is when there isn't a smell, to have the dog "alert" even in the absence of a detectable smell--generally by claiming that certain non-alert behaviors were actually alert behaviors indicating the dog detected the presence of drugs. (Police search dogs are trained to "alert" by barking and sitting once they detect drugs, but in most stops officers claim the dogs "alerted" them by sniffing continuously or pawing at a particular location.)
I’ve heard stories like this going back to the ‘60s. I suspect there are an order more incidents like this that never make a major news outlet, and probably an order beyond that which end up being citizens word against the cop’s because there is no video to back it up.
https://nypost.com/2014/02/21/cops-hit-my-car-then-arrested-...
From warrant to arrest to conviction, everything often happens on fabricated, bullshit "evidence". And of course, unless you're super rich, you won't be going to trial to defend yourself, innocent or not. If you're lucky enough to not get killed by the cops that arrest you, you can look forward to being tortured, and enslaved prison. Hell, even if you're just awaiting trial in jail you can be beaten and tortured. That's the American "justice" system in a nutshell.
> Investigators also found a witness who, after being hypnotized, a technique sometimes used by law enforcement to enhance memories, said he remembered seeing Johnston force the couple into a car.
Hypnosis is not a valid technique to "enhance memories." It is, however, a way to change memories and create false memories.
I understand the need to disqualify people if they have severe learning difficulties, have special knowledge that would disrupt the process, or if they are incapable of finding one of the possible verdicts, but otherwise the selection should be a random cross-section of society.
I hope you are aware of "jury nullification" and FIJA:
Now that you are aware - and assuming you are in the United States - you can tell the judge this during voir-dire and the selection process. You will be dismissed.
There's also a good chance you'll never be called by the system again for possible jury selection.
I did this once about 10 years ago where selection went to voir-dire; I let the court know I was in support of FIJA. I was dismissed, and I haven't been called back since (while my wife has been hit about 4-5 times since then; but it always has ended up either not going to voir-dire, or her group not being called in to come down to the court).
Yet another example of the failure of our legal and justice systems; by not fully informing the jury that "yes, Virginia, you can decide to not convict if you don't believe the law is just", they seek to strip away one of the many rights we have a jury members under the Constitution.
If you're interested in learning more, the book The Cadaver King and the Country Dentist[1] is a great in-depth dive into a couple specific cases where testimony from "experts" resulted in the conviction of innocent people. It also does a good job explaining the incentives and institutions that make it hard to stop this.
[1] https://www.goodreads.com/book/show/33296669-the-cadaver-kin...
Put a private detective on the prosecutor and their helpers, get some dirt on them. Catch a police officer or an agent of the court threatening you on a recording. Etc, etc.
Your lawyer won't like it, but they use the same tricks on you. Fuck 'em. Threaten to release the dirt (through your lawyer, in a legally vague way) and watch the charges go away.