10/26/2010

Casino Justice

“Eppur si muove” meaning “and yet it moves.”
- Galileo’s final statement when condemned by the Catholic church at his 17th Century heresy trial--referring to the Earth moving.
In 1990, Pope Benedict called the trial, "Rational and just.”

I am going to tell you the dirtiest little secret of the criminal justice system: there ain’t no “justice” in it at all. Despite the lofty statement of Justice Peters of the California Supreme Court in 1970, that “[o]ur courts are not gambling halls, but forums for the discovery of truth,” the reality is that our courts are exactly gambling halls where the prosecution is more interested in winning than finding the “truth.” Every time I take a case to trial, my client is spinning that roulette wheel. I usually advise them to spin the wheel if they have nothing to lose or if the consequences of losing trial are no worse that the plea offer.

I first experienced this stunning realization when I was myself the criminal defendant in 1995. Charged with being under the influence of drugs, which usually gets a 90-day sentence, I decided to reject the prosecutors crappy offer of nine months and take my chances with a jury trial. Even though I was convicted, I received a 60 day sentence. What I quickly realized was that once arrested, everything that the cops said was presumed true. The charges were presumed by the jury to be true from the moment they entered the courtroom to decide my fate. In fact, the jurors looked at me and my attorney like we were both some specimen of insect. Instead of starting with the presumption of innocence, the jurors were thinking, “I wonder what he did,” even though they had not heard a shred of evidence. They naturally believed I was guilty simply because I was sitting at in the defendant’s chair.

In short, once arrested, the “justice system” in which I found myself was actually a high stakes casino where the odds were in the house’s favor and the cards were stacked against me from the minute I was arrested.

Sure, there are things that can tip the odds one way or another. Maybe the arresting officer lied in the police report, or maybe he or she told the truth and included facts in the report that supported my innocence. And is my attorney going to be a zealous advocate, or a dump truck? I had no funds to hire a private lawyer, but at least I got a public defender who was willing to take the case to jury trial. Some people think they can improve their odds by getting a high-priced defense lawyer, and many private attorneys try to “sell you” by suggesting all public defenders are incompetent. Bullshit. My brother is a public defender, and he is not only Yale-educated but also one of the smartest and most dedicated attorneys you could hope to have for any price. I also know there are several public defenders who are better than many private over-priced fast-talking charlatans who will take your money, do no work, and then plead you out.

As a criminal defendant, you are at the mercy of a potentially vindictive, racist, or just plain mean prosecutor whose decisions make a huge difference in the outcome of your case. For example, things such as whether you are obese or unattractive, whether you have a criminal record, and whether the prosecutor was bullied in school, an incest survivor, or a victim of any crime can make a huge difference in your case. In California, there have been over 4,000 cases of prosecutorial misconduct but only a small percentage of those documented cases of misconduct have led to a reversal of a conviction.

Don’t even imagine the odds beating the case are better if you happen to be a black man. The stark reality is that in the United States 25% of African American men are either incarcerated, on probation, or on parole, so it is pretty obvious to me that institutional racism plays a huge factor in how fairly you will be treated in the criminal system. OJ notwithstanding.

Lastly, the judge you get is the biggest gamble of all. I have seen judges who are truly fair, but you might get one of those judges who is an ex-prosecutor who also presumes you are guilty and will do horrendous things to convey to the jury that he or she personally believes in your guilt before hearing your side of the case.

The decision to take a case to trial is one of the biggest gambles a person can ever make because even if you are not guilty you can be convicted for a number of reasons that are beyond your control. If you don’t believe me, ask the approximately 200 people in California who have been convicted and sent to prison based upon eye witness identification who were later exonerated by DNA evidence that later absolutely excluded them as perpetrators.

Remember Galileo who had the un-mitigating gall to insist that the earth was not the center of our solar system, despite the fact that the “truth” as defined by the church, philosophers and scientists was that the earth stood still and the heavens moved around it. Amazingly, in 1990, Pope Benedict called the trial, “rational and just” even though Galileo was convicted and sentenced to ten years of house arrest. When you appeal your conviction, you have about a 98% chance the court of appeal will say the same thing about your conviction.

On the up side, even with all of the pitfalls of the legal system, I have still seen juries follow the law and acquit even when they disagree with the law that requires a not guilty verdict. I have also seen jurors hug my client after acquitting them. One juror even visited my client’s home to offer him support after acquitting him.

If you ever get arrested and charged with a crime, good luck!

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