Nothing is more damaging to a state than that cunning men pass for wise. – Francis Bacon
The advocate system which underlies the Western machinery of “justice” is, in a way, the exact opposite of science, though they both claim to have the same goal: discovering the truth. But while everyone in science is presumed to be on the same side, and an ethical scientist who has made a discovery wants others to share his information and to test his hypotheses by trying to prove them wrong, lawyers do things the other way around. Those who represent the accusatory side (the state or plaintiff) do everything in their power to find the defendant/respondent guilty of whatever it is he’s accused of, even if they know he isn’t, and those on the defense will similarly attempt to exonerate their client even if they know he’s guilty. Furthermore, either side is allowed to hide critical information from the other; it’s considered the responsibility of each side to demand that the other side turn over its information (a process called “discovery”), and if it fails to do so in exactly the right way the other side is allowed to hide that information, even if it results in an innocent man being imprisoned or executed. Furthermore, the United States Supreme Court recently ruled (in a case involving former New Orleans district attorney Harry Connick) that even if a prosecutor maliciously hides exculpatory evidence, and even if this monstrous act sends an innocent man to prison for 18 years (14 of them on death row), that said prosecutor hasn’t done anything wrong and is immune to lawsuits filed by his victim.
In short, the two systems are incompatible, and when they clash it is science which must lose because the scientist practices full disclosure, while the lawyer tells only those facts which are to his advantage. The result is that most of what passes for “science” in courtrooms is junk science at best, when it isn’t outright lying by hired guns posing as scientists to advance an agenda or simply to earn a paycheck. A large proportion of forensic “science” has long been attacked by legitimate scientists as undependable or totally bogus, but prosecutors like it because splatter or bite-mark analysis, dog behavior, and other highly subjective, error-prone “techniques” can be used to “prove” whatever the prosecutor wants proven; this may be acceptable to the moral cripples whose job is to cage as many humans as possible for as long as possible, but it isn’t “science” by any stretch of the imagination. In science, every possibility must be considered; in prosecution, the only one which is presented to a jury for consideration is the one which tends to make the defendant look guilty, whether it’s “shaken baby syndrome” or the mysterious “diseases” supposedly caused by silicone in the chest wall but not anywhere else in the body, or in any woman who isn’t American.
And despite what you may have seen on television, judges are downright hostile to science in the courtroom when it calls established procedures or the basis of laws into question:
[Dean] Boland, a Lakewood, Ohio, lawyer who specializes in technology cases, was ordered by a federal judge to pay [$300,000] to two unidentified minors whose stock photos Boland used to create…[artificial] images of children engaged in sexual conduct…[in order] to aid his testimony as an expert witness in courts in Ohio and Oklahoma. “The court concludes that a constitutionally effective defense to a child pornography charge does not include the right to victimize additional minors by creating new child pornography in the course of preparing and presenting a defense,” U.S. District Judge Dan Polster in Cleveland said in an opinion, rejecting Boland’s claim that his use of the images was constitutionally protected. Boland used the morphed images to show how difficult it is for people possessing child pornography to determine whether the images depict real children or were created artificially…Boland said he plans to appeal the judgment. “This ruling has the potential to affect the ability of people to get fair trials across the country,” [he] said…
…Boland used the images to aid his expert testimony in three criminal prosecutions for possession of child pornography. In one hearing, prosecutors questioned whether Boland’s use of the images violated the law against possession of child pornography. In 2007, Boland entered into a deferred prosecution agreement with prosecutors in Cleveland, avoiding a criminal conviction. As part of the agreement, Boland apologized in a local legal publication and admitted the images violated federal law, according to an appeals court decision. That same year, the guardians of the children whose photographs were used sued Boland for digitally altering the stock shots. Polster [originally] dismissed the claims, calling it a “difficult and troubling case.” That decision was reversed on appeal and the case was returned to Polster, who granted summary judgment for the two children…awarding $150,000 to each.
Note the sleaziness of the prosecutors’ circumvention of Boland’s defense tactic by attempting to charge him with a felony, despite the fact that they knew with certainty that the child porn was artificial. Personally, I think he was most unwise in creating artificial child porn images; his point could have been made by “morphing” adult photographs in the same way. But the fact remains that the prosecutors’ desire to “win” inspired them to call attention away from Boland’s undoubtedly effective defense tactic with the legal equivalent of an ad hominem attack. “Difficult and troubling” indeed; the message being sent here is that a mere image can be illegal even if its creation hurt nobody, but that creating artificial child porn is apparently acceptable to the court as long as the models are paid outrageous sums. Judges and prosecutors don’t want to be confused with facts that point out the absurdity of the laws; to them, facts are only acceptable when they can be bent to fit their own legalistic purposes, and lies dressed up as science will do just as well.
One Year Ago Today
“Drama Queens” refutes the neofeminist claims that prostitution is “humiliating” by pointing out that if anything, many whores’ self-esteem is too high, and that there are far more prima donnas among us than beaten-down victims. The column also contains a couple of news items and a humorous criticism of clients from a rather bitter escort.
On the one hand, something inside me is sympathetic to this guy’s plight – he was wrongly convicted – and nearly executed.
But … on the other hand … something else tells me that a Democracy as big as ours is going to be complicated and it’s best to “figure out and work with the system” than to “shake one’s fist at the sky”.
The question that actually reached the SCOTUS on this was limited solely to Thompson’s claim that the municipality was guilty of failing to train their prosecutors on the disclosure rules mandated by Brady. Thompson alleges, that the failure of the municipality (the DA’s office) is apparent since his conviction proves that a need for training existed. He was unable to cite other violations of Brady by the department – and therefore, could not prove a pattern here. He was relying on his one single incident that the DA failed to “properly train” it’s prosecutors.
So the SCOTUS had one question to decide … “Does one Brady violation prove that training was needed in this case?”
They decided … that Thompson’s lawyers hadn’t proven that training was the root cause of this false conviction.
Again … I have a tiny mind … and it’s hard for me to read SCOTUS opinions but I read most of this one and I find this footnote (which Justice Thomas lists in his court findings – it’s the very first footnote) …
“After Thompson discovered the crime lab report, former assistant district attorney Michael Riehlmann revealed that Deegan had confessed to him in 1994 that he had “intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated the defendant.” Record EX583; see also id., at 2677. Deegan apparently had been recently diagnosed with terminal cancer when he made his confession. Following a disciplinary complaint by the district attorney’s office, the Supreme Court of Louisiana reprimanded Riehlmann for failing to disclose Deegan’s admission earlier.”
I don’t know who this “Deegan” is – but apparently he worked for the DA – and apparently he made a death-bed confession that he had withheld the evidence intentionally – and that he knew that evidence, to some extent, vindicated the defendant.
If THAT’s true – THAT is deliberate, AND OUTRAGEOUSLY dishonorable and unlawful conduct. But what are you going to do about a dead man’s sins? Only hope that he burns in hell for them.
If that’s true – then clearly – this wasn’t a training issue and that is what Thompson was attempting to hold the DA’s office liable for. If that’s true – then the SCOTUS made the correct decision here.
Now – that doesn’t excuse the injustice done to Thompson – but how would we correct that if the man responsible for this is … dead?
Krulac,
The reason the wronged man had to sue on the basis of Brady was because the prosecutor’s office has absolute immunity – they can neither be sued nor charged in their own persons for harm done to the defendant by their actions even if malicious and egregious. (Look at Mike Nifong as the quintessential example – he spent one night in jail for contempt of court, not for withholding evidence.) Using Brady was an end-around trying to get some justice and compensation for the the wrongfully convicted. The solution for this problem is to revoke immunity for government actors in the same way that the corporate shield law is revoked – criminal activity always removes the corporate shield from bad actors. The same should hold true for prosecutors and their offices just as corporate assets can be used to make good the harm done by bad corporate actors, so too should the assets of the prosecutor’s office be available to make good the harm done by malicious prosecutors.
This has two salutary effects: 1. The wrongfully convicted get compensation. 2. The negative impact on prosecutor’s budgets will do more to get them to act appropriately than any other motive short of prison time.
Ancillary note: The settlement in favor of the wrongfully convicted should entail that no increase in the prosecutor’s budget should be follow on the loss of such a civil case.
Threaten prosecutors with loss of revenue. That will get their attention when such mundane things as justice and doing the right thing fail.
Those interested in reform of the American justice system should read Radley Balko’s article on forensic science reform.
One has to wonder, though, what system would be better than the advocate system. I can see plenty of reforms to the system, but replacing it with another system altogether… I’m nervous.
Were I the dictatrix, I’d establish a modified advocate system; leave things alone for the defense, but require the prosecution to share all information whether it is requested or not, and if it is discovered at any point that information has been hidden or distorted the verdict is automatically changed to “not guilty”. Better 1000 criminals go free than ONE innocent be convicted.
Works for me. The main thing in any rational system of law enforcement is that people not profit from committing crimes. If I steal your car, the most important thing isn’t how much time I spend in jail, it’s that I don’t get to keep the car. Punishment is there to make the price for any profit I do enjoy to be more than offset by the price I pay. To cause me, the next time I feel like stealing a car, to think to myself, “It’s not worth it.”
This works fairly well because, actually, most people are not thieves. Enough are that we have to have laws and enforcement of same, but most people are not thieves.
Prosecutors shouldn’t be able to profit (get credit for another convection) by playing these sneaky little games. The profit would be taken away by the instant “not guilty.” If he gets caught doing it more often, his ass is fired.
I thought the whole purpose of prohibiting child pornography was to protect children from being harmed. So what is the logic behind prohibiting images (like those created with 3D graphic systems) that don’t involve children?
The so-called “Justice” system is a sad joke. It’s most often a game of “let’s make a deal”.
My strategy, which has been successful for me before, is when arrested to admit nothing, to say nothing pertaining to the charges to any cop. Oh, they will try. They will lie outrageously, and threaten. But say nothing. Then get a good lawyer.
On many non-violent charges. the DA doesn’t have the time and budget to fight it, and if you put up a fight, they will often back down.
The excuse the American law uses for prohibiting fake or even animated “child” porn is that such items “create a demand” for the real thing and that in turn causes children to be hurt. This whole ridiculous notion that human beings are passive robots in whom “demand” has to be “created” by some outside agency should be familiar to anyone who reads this blog regularly. 🙁
If we really believe that, then we’d ban violent movies, thinking that they create a demand for murder.
I also read your “Drama Queens” article. Oh, how right you are. I had more than my fill of that. And the woman who wrote the “Thing You Need to Know” bit? She advertises herself as a GFE. And yet she doesn’t expect the men to want that? to cuddle, to kiss, all that sort of thing? Seriously? I suspect the number of women who advertise GFE is down to them thinking it’s easier. Possibly it is, at least physically. But then one has to expect what comes with all that.
Exactly; it’s another case of “sex makes everything different”. Sooner or later a culture will arise which is willing to enshrine in constitutional law the simple fact that inanimate things such as foods, drugs, pictures, weapons and words cannot force anyone do anything, and that laws therefore cannot be made against them but rather only against actions which harm an unwilling victim in a concrete and demonstrable fashion. What a Utopia that nation will be! Not a perfect world because humans are imperfect, but one in which collective imperfections are not heaped upon our already superabundant individual ones.
The “search for the truth” platitude is primarily of concern to zealots and non-lawyers, who believe it, and judges, who use it to shore up their rulings where a good platitude always comes in handy. To those of us who toil in the trenches, both as a pragmatic effort to change the system from within and to save as many lives as we can, it’s the sort of noise we make at cocktail parties.
You’ve picked a very big topic to cover, and one I have, perhaps painfully minute detail, written about many times. The big ideas are easily addressed with the platitudes and sweeping brushes, but it’s the tiny details, the boring nuts and bolts, the distinguish whether an innocent man is convicted in any particular case. And every case, every defendant, is unique when you’re in the trenches.
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