"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, January 21, 2009

Is "The System" Broken?

Crim defense lawyer Mark Bennett takes some exception to prosecutor Ken Lammers' suggestion that aspiring lawyers consider practicing on both sides of the divide before choosing a permanent roost. I think it's a pretty practical suggestion, not just for criminal law practice, but for any type of practice, because if nothing else, seeing what happens from the opposing side can only help make one a better advocate for the side you ultimately choose.

But what struck me was Bennett's rationale for declining the invitation. See, he thinks "The System" is "broken" and therefore no one should cooperate in its process of convicting and imprisoning offenders. He thinks:
the system doesn’t work, period. Even with zealous advocates on both sides, innocent people — that is, factually-innocent people — get convicted of crimes and sent to prison. No system that sends a single innocent person to prison deserves our loyalty. No system that sends a guilty person to prison for a day longer than necessary deserves our loyalty. Let the prosecutors, cops, and judges try to maintain this broken system. Your duty to do right trumps your duty toward the system. We criminal defense lawyers, at least, should be looking for ways to change it for the better or, failing that, to burn it down and start afresh.

What's truly remarkable about this oft-encountered sentiment (encountered amongst defense-oriented blogs, anyway) is how little understanding it reveals of what the system IS (never mind the mastubatory, self-congratulatory, revolutionary chic rhetoric).

News flash: we live in a world full of imperfection and sin. This encompasses both the criminals and the flawed people who run "The System."

Nevertheless some way of identifying criminals, trying them, and punishing them must be established, unless one advocates simple anarchy. Given this task, our Western justice system, which even Bennett admits is "the best," has come up with this rough approach:

We have public officials who investigate crimes and arrest the offenders they believe are responsible. These offenders have a right to be represented in their trial by well-educated and professionally certified lawyers whose only duty is zealously to represent their interests in the case. The government is also represented by the same class of lawyer, whose duty is not to obtain convictions, but to ensure that justice is done; and there are judges (or a jury) who decide whether the government, upon whom the burden of proof rests, has proven its case beyond a reasonable doubt. Then, and only then may an accused be convicted and sentenced. After that, the accused has a right to several varieties of direct appeals depending on the jurisdiction, and after that, to habeas corpus review, ordinarily directed to whether his trial attorney did an adequate job representing him.

Now where I suspect the rub is for many defenders, is that pesky "beyond a reasonable doubt" part. This is primarily (but not exclusively) where the potential exists for a factually innocent person to be convicted.

But if one understands that the system itself impliedly allows for the potential of a certain number of innocent people being convicted (by not demanding a standard of "absolute proof" or "proof to a metaphysical certitude") then it can be understood that the system is no way broken simply because some very small number of mistaken convictions occur.

In sum, we do not, and have never had, a system that adopts the old saying of Blackstone, "better that ten guilty persons escape than that one innocent suffer" in the sense that we fashion our system to be absolutely infallible in assigning guilt. There is, in effect, a built-in error rate inherent in the process.

I'm interested in the alternative that Bennett and others would have us adopt and how it would avoid the pitfalls of laziness, incompetence, and indifference inherent in any system peopled by... people. In recent times, after all, the courts have created out of whole cloth many new obstacles for conviction, such as the exclusionary rule, "Miranda" warnings, and the erosion of peremptory jury strikes, which defendants and clever lawyers like Bennett exploit in avoiding conviction.

While no one wants to see an innocent person convicted (and thankfully the error rate is extremely low), society has seen fit for a very long time to risk the small error rate, rather than create a system that would release many more factually guilty offenders and create very little deterrence for criminals. That there is much dissatisfaction with "The System" among defense lawyers is not surprising... no one likes losing alot, and defense attorneys frankly lose alot.

What is more disturbing is the approaching loss of public confidence that "The System" convicts and adequately incarcerates enough of the guilty (OJ, anyone? And see examples here).

2 comments:

Anonymous said...

The Criminal Justice system is suppose to decide if the offender is innocent or guilty, period; Instead it has become mockery by 'games' played on both sides and society suffers.

Targeted citizens' rights and due process of law are denied, is this Justice?

John in Nashville said...

Actually, the criminal justice system is supposed to decide whether the guilt of the accused has or has not been proven beyond a reasonable doubt. A trial is not a search for truth; it is a test of the government's evidence.

That having been said, I suspect that I could be a prosecutor if I put my mind and attention to it. I have no desire, though, to have that stick implanted up my butt.