Thursday, July 07, 2011

The Presumption of Innocence and American Values

If you've attended law school, "I'm a law professor" loses much of its impact as an appeal to authority, but sometimes you just have to wonder.... A law professor at Fordham University, Thane Rosenbaum, has posted an editorial at the Huffington Post that leaves me scratching my head. The gist of it appears to be that jury verdicts should always make sense to laypersons, even if they did not attend the trial, and that we could better achieve that by eliminating our adversarial system in favor of an inquisitorial trial system modeled after some unnamed country (or countries) in continental Europe. To Mr. Rosenbaum, it appears that the biggest flaw of our system is that we presume innocence, and that too many people he believes are guilty are acquitted.

Rosenbaum cites a whopping four examples of the justice system gone wrong, inevitably mentioning the O.J. Simpson case, but also mentioning the Michael Jackson trial and the more recent rape trial of two New York City police officers. Rosenbaum complains that "As civics lessons and as tutorials on the justice system", these cases "were devastating failures", but does he take the time to provide the much-needed civics lesson? To explain how those verdicts were possible within our criminal justice system? How a jury can be outraged by a defendant's conduct, see a lot of smoke, but still find that there's not enough evidence to declare that the defendant is guilty beyond a reasonable doubt? Nope. He seems to instead propose that we simply take a "Where there's smoke, there's fire" approach to criminal justice and if a verdict doesn't resonate as just with the public it can only mean that the justice system is flawed:
Many of these same confounded citizens also threw up their hands with the O.J. Simpson trial: "There was blood in the Bronco, for God's sake, and he was running away from the police!" And there were those who wondered how the plain facts of the Michael Jackson pedophilia case resulted in an acquittal: "He was sleeping in his bed with children that weren't his own!"
Let's step back and look at his examples. The O.J. Simpson case. Let's admit it, the forensic evidence was overwhelming. Even if you believe that officer Mark Furhman planted evidence at O.J.'s house, or that there was a conspiracy to convict within the LAPD, there should have been enough evidence to achieve a conviction. Does this mean that Rosenbaum is correct? That the only lesson that can be drawn from the O.J. case is that our system is hopelessly flawed in favor of the defendant? Hardly.

First, the case was anything but a typical homicide trial, as instead of having an indigent defendant trying to scrape together a defense, or (much less likely) a middle class defendant bankrupting himself trying to scrape together a defense, you had an incredibly wealthy defendant sparing no expense on lawyers and forensic experts.

Second, you had two prosecutors of average skill who were by all appearances used to the overwhelming advantage they had over defendants, and did (or could not) adjust their tactics in the face of a defense that was as well-funded as the prosecution. (Better funded? I don't think so. A prosecutor can call upon state crime labs, police departments, in-house investigators, support staff, advice and support from other prosecutors, and similar resources, and in a case like O.J.'s I would venture that the sky was the limit.)

Third, you had the presentation of the forensic evidence in a manner that was more confusing than edifying. Had the prosecution treated the evidence as routine, the jury might have understood it. Instead they presented a multi-day lecture on DNA, likely both confusing the jury and taking away from how incriminating the evidence was. Was race a factor? Some say so, but I think the leading issues were that the prosecutors simply didn't present their case well, and made a number of other errors (e.g., having O.J. try on the bloody glove without knowing in advance that it would fit) that opened up unnecessary opportunities for the defense.

The Michael Jackson case highlights the wrongheadedness of Rosenbaum's approach. Under Rosenbaum's insinuation, there is only one reason an adult male would share a bed with someone else's child (and it ain't good). So let's go with that. We have parents who (like everybody else in the nation) knew of the first set of accusations against Michael Jackson, sought out Michael Jackson, insinuated themselves and their child into his life, and knew their child was sharing Jackson's bed. Even without assuming that "there can only be one reason...", you have to ask yourself, "What were they thinking?" If you accept Rosenbaum's insinuation, does it not follow that they were thinking, "There could be big money in this for us, just like there was for the first accuser"? And they consulted the same lawyer who helped negotiate the huge settlement from the first case? Rosenbaum is truly at a loss as to how the family ended up with a credibility problem that undermined the prosecutor's case?

As he brings up the Jackson case and that of the two police detectives, perhaps Rosenbaum should be offering a civics lesson in the importance of witness credibility, and within that context also bringing up the DSK rape accusation, a case that is in many ways analogous to the accusations against Jackson. He may want to take a look at the Feministe blog post, "There Are No Perfect Accusers". Both the Jackson and DSK cases involve defendants with a history of being accused of similar sexual impropriety, defendants who claimed that people were trying to set them up (not just in the specific case, but in general), and whose defenses rest primarily upon the impression that the accuser is a grifter.
Only three weeks ago, Strauss-Kahn evoked such a possibility in an interview with French newspaper Libération when he said he thought he was under surveillance and named the three principal difficulties he foresaw if he was to stand for the presidential elections.

"Money, women and the fact I am Jewish." He added: "Yes, I like women ... so what?" He said he could see himself becoming the victim of a honey trap: "a woman raped in a car park and who's been promised 500,000 or a million euros to invent such a story ..."
If we apply Rosenbaum's, "If there's smoke, there's fire" test to that claim, would it not be reasonable to infer that DSK was worried not so much about being set up, but about proactively laying a defense against accusations that might flow from his actual past conduct? Wouldn't a man who was seriously concerned about being set up take much better precautions against such a set-up? When you have an accuser and a victim, both of whom have serious credibility issues, how do you determine which side is "glaringly right"? And given his believe in the importance of public perceptions of justice, shouldn't Rosenbaum be comparing and constrasting those in the media who argue that DSK's rather incredible account of the events in his hotel room is "glaringly right" with those who argue that the final version of events described by the alleged victim is "glaringly right"? Under Rosenbaum's standard, is justice even possible in such a case? Whatever the outcome, some number of people will be offended by the disposition and believe that it represents a travesty of justice.

What is Rosenbaum's explanation for the difference between what occasionally happens in court - a defendant everybody "knows" is guilty is acquitted - and the court of public opinion?
There is an altered reality inside courtrooms. Everyone is breathing a different kind of air. Insulated by all that marble and mahogany, the talking head noise of cable TV and the common sense word of mouth on the street are blocked out by a mute button. What makes complete sense outside of the courtroom has no bearing on the legalistic jury instructions, the narrowed presentation of evidence, the presumptions of innocence and the burdens of proof that guide criminal trials no matter how simple and plain the facts appear and how indisputable the outcome.

From outside the courtroom, the legal system often looks as if it has no grip on the truth, or even worse, any concern or respect for the truth. But, of course, legal trials are, in fact, less interested in what is true than what can be proven.
On the whole that's true, but note how Rosenbaum's language suggests that the courtroom is some sort of ivory tower, while people passively watching news coverage and forming opinions based upon meta-analysis somehow know the "real truth". Note the absence of any sense of history, or explanation of why we have constructed a justice system in which the prosecutor must prove a defendant guilty, why justice is served by rules of evidence and by allowing the defendant to confront witnesses and challenge the evidence, and in which, no matter how heated the public reaction, it is desirable that cooler heads decide the case in court. Instead, Rosenbaum complains that while "legal experts "have lectured us" on the difference between a "not guilty" verdict and a declaration of innocence, "most reasonable, sensible, decent people are still left morally outraged by this purportedly correct legal outcome, and they won't easily be persuaded to appreciate the difference -- nor should they." Note the implicit accusation: If you disagree with Rosenbaum, you probably aren't a "reasonable, sensible, decent" person.

I'm not certain if, when Rosenbaum argues, "nor should they", he is trying to suggest that people should not be "easily be persuaded to appreciate the difference" between a finding of "not guilty" and a proclamation of innocence, or if he is arguing that people simply should not accept such a distinction. If it were the former, rather than complaining about "legal experts" attempting to explain how the justice system works, he should be attempting to do a better job of educating his readers. It thus appears to be the latter. Rosenbaum appears to be arguing that we should do away with the presumption of innocence and the legal standard of "guilt beyond a reasonable doubt", and perhaps even require that criminal defendants prove their innocence. To Rosenbaum, there appears to be only one form of miscarriage of justice - the type that occurs when somebody is acquitted despite a public perception of guilt.
It bears noting that such travesties of justice happen less frequently in other western nations.
Again, this guy is a law professor? If we're talking about countries that follow the common law tradition, which roughly translates into the English speaking world, the criminal justice system is very similar to ours, save for a slightly expanded opportunity for appeals by a prosecutor, made possible by the absence of constitutional language analogous to our Fifth Amendment. At the same time those nations don't have the U.S. notion of dual sovereignty, such that a federal prosecution can sometimes follow a state court acquittal. Either way, in most cases the prosecutor only gets one bite at the apple.

Rosenbaum limits his wistfulness to inquisitorial systems from continental Europe, apparently recognizing that systems of the sort he admires have a rather dismal record of achieving justice in the rest of the world. If you're charged with a crime in China, Burma, Turkey, Saudi Arabia, or any number of other countries that purportedly follow an inquisitorial model, you're pretty much guaranteed that you will be convicted at the end of your trial's search for the "truth". How does Rosenbaum describe the inquisitorial model?
Instead of having both sides fight a zero sum game, the winner-take-all, scorch the earth contests that make American trials similar to its sporting spectacles, other countries place a higher value on having both the prosecution and the defense work to uncover the truth. After all, everyone in society benefits when the truth is known and injustice is not allowed to prevail.
Rosenbaum's first mistake is in his belief that the only people who benefit from the outcome of a trial are the litigants. Our system of justice was constructed upon the assumption that there is a benefit to society in ensuring that defendants receive a fair trial, and upon Lord Blackstone's formulation that it is "Better that ten guilty persons escape than that one innocent suffer". Otto von Bismarck is alleged to have taken the opposite view - that it's better for ten innocents to suffer than for one guilty man to go free. Perhaps Rosenbaum would attempt to distance himself from that philosophy in his endorsement of the European inquisitorial model, but it's fair to note that he failed to tell us what country he believes offers the best interpretation of that model.

Which country in Europe "gets it right", and how much more accurate in Rosenbaum's measure is their system of justice than that of the United States? Perhaps he is thinking of Italy? Probably not Bulgaria. Perhaps he's taken in by the manner in which France shields Roman Polanski from prosecution by the U.S., or how the Swiss justice system managed to deny his extradition to the U.S. in a manner that didn't create even a hint of controversy in the United States. Does Rosenbaum actually know anything about the legal systems in the nations of Europe and their imperfecitons?
A French appeals court today overturned the conviction of six people accused of participating in a pedophilia ring in northern France five years ago, unraveling one of the most mismanaged cases in French judicial history and leaving the nation asking how the court system could have gone so awry....

The case was marred by deep doubts from the beginning, said Yves Jannier, France's attorney general, speaking to the appeals court on Wednesday. He noted that the investigative report by police in July 2002 found "more doubts than certainties" in the accusations, but said, "no one had enough critical sense to stop the machine."
Sure, but how might the public have reacted had they believed that the magistrate was emphasizing the need for stronger evidence instead of seeking convictions? The French, after all, have concerns about their own system. But if you're not concerned about wrongful convictions, the influence of the wealthy and powerful on a system dependent on magistrates, or abuses that occur at the hands of the magistrates, an inquisitorial system may well seem quite appealing.

Rosenbaum concludes by strongly implying in the specific context of the Casey Anthony case, "the truth is known and injustice is not allowed to prevail". It's thus fair to ask, what is the truth in the Anthony case? Is Rosenberg claiming that he was able to sit back in his recliner, watch Nancy Grace rant and rave, and come to a precise conclusion as to when and how Caylee Anthony died? I do have sympathy for the idea that in an inquisitorial system in which the defendant's silence could be weighed against her, and in which the verdict were reached by a preponderance of the evidence, on the weight of the evidence and the massive weight of her lies Casey Anthony would likely have been convicted of some act in relation to her child's death, but the question would still remain open of exactly how the death occurred. Although Rosenberg seems to believe otherwise, absent a confession, the essential facts of Caylee's death are and will remain known only to her mother.

Perhaps the public would be satisfied with an inquisitorial splitting of the baby - "We don't know what happened, but we're going to infer from the mother's lies that she committed some act of abuse or neglect against her child and thus convict of second degree murder or manslaughter" - but such a verdict falls far short of an outcome in which "the truth is known". The distinction thus appears to be that when the truth cannot be determined, Rosenbaum would err on the side of convicting.

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