A while back an old lawyer I know was quoting an even older lawyer, to the fanciful effect that obtaining a criminal conviction is a well-nigh impossible task, what with the insuperable burden of proof – beyond a reasonable doubt – and the requirement of convincing 12 people unanimously. The prosecution, it was concluded, should never win a case.
A sentiment contrary to observable fact, when one considers that prosecutors almost always win convictions.
Is this a problem? Why, yes indeed it is. There’s a fairly simple, though not entirely verifiable, statistical reality at the bottom of the criminal justice system in the United States: the input – that is, what the relevant ‘law enforcement’ agency sends in for ‘processing’ – is correct or substantially correct about 75-80% of the time. The whole purpose of the processing – that is, all the prosecutors, lawyers, judges, jurors, trials, appeals, post conviction collateral proceedings and so on – is to catch that other 20-25%. All of it.
The system does a terrible job of this. Absolutely terrible. Abysmal. And as a result, and other than war, this is the most immediately frightening and destructive thing the government does: prosecuting people for crimes.
Why? What’s wrong?
Let’s get back to that Department of Justice Grand Jury Manual thing. You know, the guide book for federal prosecutors presenting cases to Grand Juries, not to obtain convictions but to obtain indictments, which in general must precede a conviction, which in turn are readily obtained by prosecutors, nationwide. We talked about this before.
In 1983 the manual dealt in a rather cursory way with the “due process” problem of prosecutor misconduct in knowingly presenting perjured testimony to a Grand Jury. It was a cursory treatment because the mostly unambiguous instruction was that indictments obtained with such testimony would be dismissed, citing the 1974 case of United States v. Basurto, 497 F.2d 781 (9th Cir., 1974):
Importance: In Basurto, prosecutor did not become aware of perjury until after indictment (but before trial); indictment was still dismissed.
By 1991, though, the DOJ Grand Jury Manual said this:
A very few courts have dismissed indictments on due process grounds because of the knowing use of perjured testimony. However, the weight of authority in this area is that dismissal, if justified at all, is only justified in flagrant cases.
What happened between 1983 and 1991? Well, one thing that happened is that we elected Reagan POTUS and got Ed Meese as Attorney General. Then we got some very prosecutor-friendly Supreme Court Justices: O’Connor, Scalia, Kennedy.
But there’s more to it than that. After all, had the law changed?
No. Prosecutors don’t get to deliberately use perjury to obtain a conviction. I suppose you could respond that no one said they couldn’t deliberately use perjury to obtain an indictment, but what are they going to do with the indictment thus obtained? If they can’t get a conviction with it, the only thing to do is dismiss it, right?
But let’s back up a bit further, to the “due process revolution” of the Warren SCOTUS. By most accounts the revolution had run its course by 1969, but 45 years later it remains “controversial”. Wikipedia says so.
Why the controversy? “Conservatives” complained about “handcuffing the police” with all the procedural rigmarole. Did they have a point? Yeah, maybe.
A crumb, a morsel.
Nah. On to larger issues. Let me get too abstract for just a moment, because at the moment I can’t think of any entertaining or creative way to express the particular thought I am thinking.
We have procedures, but the procedures are not about themselves, obviously. They are about the “substance”. The substance-procedure distinction is one of those large ideas. You would think it doesn’t come up very much, but you’d be wrong. Thus one of the most contentious areas of the law is “substantive due process” which you may notice, based on what I just wrote, is something of a contradiction in terms (Justice Scalia specifically called it an “oxymoron”) because substance can’t be procedure and vice versa, but “substantive” = substance and “process” = procedures, so substantive due process ought to prompt nothing but eye rolls, but it doesn’t. And it shouldn’t.
Why do I say that?
The show trial courts of Stalin’s Russia followed their procedures pretty well, by many accounts. But there was no “there”, there. No substance.
I guess one way of putting it is that the purpose of procedures is to make the substance intelligible and orderly, but if the substance can’t be made intelligible in the first place because, say, it’s all phony made up crap then crossing all the procedural ‘t’s and dotting all the procedural ‘i’s doesn’t matter.
Or, put another way, the procedures serve the substance and are subordinate to it. You can have substance without the procedure, but you can’t have a meaningful procedure without the substance.
So what is the real and more thoughtful objection to the Warren Court “due process revolution” – more thoughtful, that is, than saying it “handcuffed” the police? Just this: that it inverted the natural, rational hierarchy and made procedure superior to substance. As I’ve said before, I’m not the only one who has pointed this out.
I recently came to Justice Scalia’s defense – not really, but it might have seemed that way – in a comment over on Turley’s blog, when another commenter was excoriating the apparent Scalia position that the execution of a factually innocent person who had received all the procedures the Constitution provided was okay with him. But I summed it up this way:
- People are justified in being appalled at the idea because ultimately Scalia is wrong, and wrong in a serious matter. But it’s also a symptom of the larger problem that the justice system has been too good at abdicating its essential functions, one of the most prominent of which is to ensure the innocent are not punished. The reason a meritorious innocence claim winds up in federal court on habeas corpus in the first place is that the state courts have failed in this essential function. The idea that the federal court should just punt it back to the state that has already failed is fatuous. Somebody has to be responsible in the end, and in the end on a matter like this the federal system must act as the failsafe. That’s my opinion, probably not Scalia’s, although he wasn’t directly confronting the question there. As far as it goes, he was merely stating a fact: the SCOTUS has never ruled that the constitution forbids the execution of a ‘legally” guilty, but factually innocent person.
Everybody makes mistakes. But it’s a special type of mistake when we refuse to recognize it as being mistaken, even when it’s obvious.
I’m bringing all this up because there was a post the other day on SJ to the (also fanciful) effect that what ails the justice system is shitty defense lawyering. And so presumably this can be fixed by good defense lawyering, which means SHG and his friends and his spawn, if any such there be.
There may be some shitty defense lawyering out there. That was hardly the point of the article SHG cited – which had more to do with funding indigent defense, not lamenting its poor quality – but it’s SHG’s point all the time. Too often, really:
That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant. Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it. Sucks, I know, and a very heavy responsibility. It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.
“Jeff” didn’t single out defense lawyers for “blame”. That’s a distortion, and overall SHG’s take on the whole thing seems a bad case of confirmation bias.
But forget the article. The SJ post is just another variation on a very tired theme: SHG, or lawyers like him, are the solution to what ails the system. This is wildly implausible: the change in the DOJ Grand Jury Manual from the 1983 version to the 1991 version; the explosion of criminal prosecutions and the US prison population; the near certainty of conviction at trial with conviction rates exceeding 95%; the vanishing trial and ‘trial tax'; the futility of appeals and post conviction remedies; the Anti-Terrorism and Effective Death Penalty Act of 1996.
SHG probably started out practicing law right around 1983. Does he, and more specifically his professional self-concept, bear any responsibility for these deleterious systemic developments, all of which occurred on his watch? If he doesn’t bear at least some small share, who would?
Beyond that, is performing the same act over and over going to yield a different result?
Innocence does not matter.
Our job is only to defend.
We game the system to ‘win’, every single time.
There is no such thing as justice, or truth.
These are essentially a sales pitch (to potential clients), with a kernel of thoroughly impoverished pseudo-philosophy (“everything’s relative”) woven in. So you posture this way and maybe it gets you a few clients and you do a good job for them – although most of the time that doesn’t make much difference – but the result to the system as a whole is – well, what I just told you.
Has it been worth it? You have the occasional acquitted client, I’m sure. How many others have been convicted who otherwise would not have been, though? The statistics over the last 30 or so years suggest the numbers may be substantial, but ultimately that’s one of those questions we’ll never be able to really answer, but nevertheless deserves a little thought. Maybe more than a little.
The elevation of procedure over substance leads directly to institutional and systemic incoherence. Like war and pestilence, institutional incoherence can have short term benefits for some. But if you’re one of those few, don’t expect admiration and respect from the much larger group of people on the receiving end.
Not that that’s the main point. I don’t know. Let’s see if I can drive the point home, starting with a post from a few years ago on SJ:
True believers usually end up having problems as a criminal defense lawyer. When people push the “factual innocence” button, they almost always miss the boat. We don’t defend because our client’s are innocent. We defend because they are accused. Our job is to test the government, not to do justice…The prosecution side, including the police, exist to do justice, and justice means both substantive and procedural. They are equally responsible for keeping innocent people out of jail as putting the guilty in.
That’s the familiar little ditty played over and over on SJ. And elsewhere. But SHG and the SJ posse are keeping some dubious company:
Investigators believe Witherspoon then raped the girl who was not conscious enough to stop the attack. Witherspoon has hired well-known defense attorney John Parrinello to defend him.
Thursday, Parrinello revealed a potential line of defense in the case. He said prosecutors will have a hard time proving Witherspoon used Ambien to sedate the girl.
“None was found in her system,” said Parinello, “and if there were any sexual activity between the two, it was purely consensual.”
Livingston County District Attorney Tom Moran said, “Mr. Parrinello and I have totally different ethical responsibilities. Mine are to seek justice; his are to do everything humanly possible to get his client off.”
This is from a local Channel 13 news interview (scroll way down, about 7/8th of the way to the end, to see the actual story) dated September 30, 2004.
Notice how Moran – who’s a psychopath, by the way, but that’s another subject – is using the very same ideas – indeed the very same words – expressed by SHG to discredit another defense lawyer, and that lawyer’s case, and his client.
Multiply 10 thousand fold, since of course Tom Moran and SHG are not the only adherents to the dogma.
It goes without saying – or should – that this whole outlook is a fairly recent affectation in the profession. Consider this quote, dating from the 1940’s and obtained second-hand from a 1999 Fordham Law Review article:
The difference between the true lawyer and those men who consider the law merely a trade is that the latter seek to find ways to…violate the moral standards of society without overstepping the letter of the law, while the former look for principles.. within the limits of the spirit of the law in common moral standards.
Maybe that’s going too far in the other direction, but still: we’re left with the disturbing question of how much the more recent affectation has contributed to the widepread collapse or at least demoralization of criminal defense lawyering, and the cascade of prosecution friendly developments that have characterized the criminal justice system since, oh, about 1980.
Again, probably about the same year Scott Greenfield began his legal career.
It’s a big and important question, methinks.
I won’t be posting for a while. Busy.