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Trial by Jury

Most of us believe that to be tried by a jury of one’s peers is the cornerstone of our democracy. Most would be deeply concerned to find out that the jury system is no longer used in the United States. As well they should be.
So guess what? Unnoticed by all, the jury trial is gone. Depending which jurisdiction we are referring to, between 97% and 99% of convictions are from negotiated deals, not convictions at trial. The modes operandi is for a prosecutor to threaten something over the top such as a thirty year sentence if the defendant goes to trial. Instead, the defendant is told to plead guilty for a much lighter crime in return for a much lighter sentence. Thus, we bypass the jury trial. The only defendants who go to trial are those with a strong sense of principle who believe they are innocent. Unfortunately, these defendants who go to trial usually lose. With 97% of the charges bypassing the jury system, the state can put unlimited power against the remaining 3%. No wonder they are convicted.Most of us believe that to be tried by a jury of one’s peers is the cornerstone of our democracy. Most would be deeply concerned to find out that the jury system is no longer used in the United States. As well they should be.
So guess what? Unnoticed by all, the jury trial is gone. Depending which jurisdiction we are referring to, between 97% and 99% of convictions are from negotiated deals, not convictions at trial. The modes operandi is for a prosecutor to threaten something over the top such as a thirty year sentence if the defendant goes to trial. Instead, the defendant is told to plead guilty for a much lighter crime in return for a much lighter sentence. Thus, we bypass the jury trial. The only defendants who go to trial are those with a strong sense of principle who believe they are innocent. Unfortunately, these defendants who go to trial usually lose. With 97% of the charges bypassing the jury system, the state can put unlimited power against the remaining 3%. No wonder they are convicted.

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Admitting Guilt

Cameron Todd Willingham was convicted of the murder of his two little girls through arson. There was no real evidence Mr. Willingham set the fire. In fact, we now know he didn’t and it looks like the fire was a case of faulty wiring. He was convicted based on evidence which included the fact he had a Black Sabbath poster on the war. Black Sabbath was a famous rock bad in the 1960’s and 1970’s and its posters must have been on millions of walls, yet the prosecution claimed this proved Mr. Willingham was a Satan worshiper and so must have set the fire.
Significant evidence was produced by independent parties which supported Mr. Willingham’s innocence. Under pressure, the prosecutor offered to commute the death penalty to life in prison if Mr. Willingham confessed to killing his daughters through arson. He refused to do so out of moral repugnance. He was executed by the State of Texas.
As the facts came out after the execution, the prosecution’s position was that if Mr. Willingham had just confessed to killing his daughters, which he did not do, Mr. Willingham would now be alive and possibly free, now. In other words, it is Mr. Willingham’s fault he was executed for a crime which never happened. The prosecution had no responsibility. We have to ask ourselves: if we are good parents, we try to teach our children to accept responsibility. Then, why don’t we insist on such maturity from our prosecutors?

Legal Repercussions for Dishonest Prosecutors

What happens if a prosecutor cheats and lies to get an innocent person convicted? What happens if a prosecutor deliberately hides or destroys evidence which could exonerate an innocent defendant?  What happens if a dishonest prosecutor threatens a witness with prosecution unless the witness provides damaging false testimony to convict an innocent target?

If you think horrible things will happen to that prosecutor, you are in good company but you are wrong. Nothing happens. If discovered, the judge tells the prosecutor not to do that again but that is it. There are no repercussions. There is no incentive for the prosecutor to do the right thing; only to convict at all costs. With convictions come political capital which can be used to get a 3% raise. No downside and all upside.

How about if a prosecutor knowingly breaks the law to get an innocent convicted, she or he be given twice the same sentence?

Forensic “Science”

Applying modern science to the crime scene has been exciting because of the promise for making crime solving easy.

From matching bite marks to matching hair particles to matching the grooves on a bullet, science has promised to take the “work” out of crime work. Except science did not do that.

Many of the modern forensic sciences deployed were never rigorously tested. Outlandish testimony was made by “experts” such as claiming that the chance a  particular defendant did not commit a crime was one in 200 million. Obviously, juries convict when they hear this.

We now know this is not true. We now have rigorous testing which disproves a great deal of our forensic “science”. In fact, many of our exonerations are based on this. It seems there is no substitute for real crime work: interviewing neighbors, shoe leather, etc. Yes, work. So results take work! Who knew

Protecting Incumbent Judges

“As county chairman, I have two policies. One is that we will never encourage anyone to run against an incumbent judge. The other is that neither the party nor I as county chairman endorses (sic) anyone in a contested race.”

Former Dallas County Republican Chair.

To be sure, the quote above could have been said by any party chair. In Texas, we like to think we elect our judges but we really don’t. The party leaders of both parties make sure their incumbents remain in office. Whether or not a judge is honest or competent does not seem to matter. What matters is whether or not he or she supports the party in power.

So why do we have so many ineffective judges?

The Scientific Method

Anyone who has graduated from high school in the United States has been introduced to the scientific method. From the ancient Greeks, we learned that honest inquiry requires us to look at the evidence, then draw conclusions. It is part of the bedrock of Western Civilization and we know any other approach is invalid.

And yet, that is not how most prosecutors do it. Most prosecutors decide up front who they think the guilty party is, then look for, or interpret the evidence to support their position. Through sample bias, they often overlook evidence that would point them in a different direction. Unsurprisingly, they “find” evidence to support their position and another innocent party is convicted. This same approach even allows prosecutors to convict innocents for a crime that never happened for political reasons. Unfortunately, judges often don’t provide the oversight necessary to contain this approach.

Presumably, most prosecutors went to high school although we can see why some may not believe that.

Is Money Fungible?

Most people think it is. Fungibility is the ability to be easily swapped for other things. We can use money to hire people to save souls or slaughter sows; the money doesn’t care. Once it leaves our hands, there is no telling where it goes. We all know that (except some prosecutors).

Suppose you have a good friend named Aloysius, with whom you periodically exchange texts and phone calls. One day, he comes to you and asks to borrow a decent sum of money. He is a good friend and you wish to help but you ask him if you could pay him over time. He agrees and you continue to exchange texts and phones calls about birthday parties, spouses, politics, and sports.

Unknown to you, he uses the money to buy illegal drugs, makes a profit, and returns the money. Are you guilty? Any rational person would say you are not guilty and yet many people are found guilty based on just these circumstances. Somehow, in a court of law, people lose their rationality when the prosecutor tells them to. More and more, if authorities target someone, however innocent, and you can lead them to the conviction of the target, you can be targeted, also, until you give them the testimony they want. Joseph Stalin must be so proud!

  

Wrongful Imprisonment Compensation

Do you think wrongful imprisonment does not affect you? Are you a taxpayer? The June 26, 2017 Texas Tribune reported that Texas has paid almost $100 million in wrongful imprisonment compensation.

These payments are based on a law that did not exist until 2009 so we are talking about $100 million for recent events. Moreover, the law requires the court or prosecutor to declare the wrongfully imprisoned actually innocent instead of not guilty beyond a reasonable doubt before receiving payment. Our system is not designed for that. What this means is, if the judges and prosecutors are still in power when the wrongfully imprisoned are acquitted, compensation is not going to happen. This ensures that when dishonest prosecutors and their supportive judges engage in practices which lead to wrongful conviction, there will be no repercussions.

Clearly, having the prosecutor approve payments to the wrongfully convicted is placing the fox in charge of the henhouse.

Quashed

There is an old saying that a district attorney could get a ham sandwich indicted if he wisheQuashes Smalls.

When an indictment is issued, it is theoretically subject to being quashed, or voided. The judge is supposed to quash indictments that have serious flaws such as not being clear what the alleged illegal action is or being based on faulty law. If the defense has no idea what the actual crime being charge is, there is no way to mount a defense. The attack could be anything! This is very important because if the judge allows the faulty indictments to go to trial, no such trial could be fair. Improper indictments are supposed to be quashed (squashed) like the cockroaches they are to protect the rule of law and our society. This is what judges are paid for and it is their duty. This should not be ethically challenging for them.

And yet, for many judges, it is. Many judges take a political approach. Instead of quashing an obviously defective indictment, they let it go through in an effort the please a powerful local district attorney or connected power brokers. Accordingly, they preside over unfair trials and innocent people are found guilty. 

The Criminal Justice System Lying With Impunity

The public has a very poor understanding about how our courts and our criminal justice system work.  Although the system constantly denies this, there really is no oversight of the system. When a member says something was so, the system takes his or her word for it. This is an excellent vehicle for corruption.

Of course, not even our courts provide for consequences when we discover such behavior. To shorten a long story a jailor assaulted George Alvarez in jail. The jailor then accused Alvarez of assaulting him. The system lied to cover the jailor’s crime up. As is typical, Mr. Alvarez was threatened with a very lengthy sentence unless he confessed to the crime in return for a much lighter sentence. Mr. Alvarez did what 97% of the defendants do; he pled guilty and went to prison.

Later, evidence came forward which proved Mr. Alvarez’ innocence and the jailor’s crime. The Texas Court of Criminal Appeals declared Mr. Alvarez actually innocent.

Mr. Alvarez sued in federal court and was awarded $2 million. That would have sent a powerful message to our criminal justice system to clean up its act.

Unfortunately, the US Fifth Circuit District Court of Appeals reversed that award, stating that because Mr. Alvarez pled guilty, the criminal justice system did not have to tell the truth. This ignores that Mr. Alvarez had to plead guilty precisely because our government covered up the truth. In other words, because the government had gotten away with lying about this crime, there are no consequences.

And we wonder why we have so many wrongly convicted innocent people.