Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.He goes over all the doubts raised by scientists -- the unreliability of eye-witness testimony, the fallibility of memory, the problems with fingerprinting and other forensic methods, and so on. Arson investigators, he notes, are "little better than witch doctors," and "Cameron Todd Willingham may have lost his life over it." DNA may be a great technology, but tests have to be carried out in actual police crime labs, and "Real-life crime labs are a total mess."
To me real heart of the indictment is Kozinski's attack on the fairness and objectivity of prosecutors and the police. Stories about police fabricating evidence and extorting confessions are everywhere, he notes, and we simply have no idea how common such malfeasance is:
Just the other day, “the Just Department and FBI formally acknowledged that nearly every examiner in a elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Do they offer a class at Quantico called “Fudging Your Results to Get a Conviction” of “Lying On the Stand 101”? How can you trust the professionalism and objectivity of the police anywhere after an admission like that?As for prosecutors, the law insists that they are supposed to work for justice, not pursue convictions, but cases come up every day of prosecutors who cut corners or outright cheat in their zeal to put defendants behind bars:
…there are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices— engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.There is, says Kozinski, an "epidemic" of prosecutors violating the Brady law that says they must turn over exculpatory evidence to the defense. Because of a Supreme Court decision known as Imbler, prosecutors are effectively immunized against punishment for wrongdoing, and Kozinski calls on either the court or Congress to change the law.
Kozinski argues that given how difficult it is for convicts to question their convictions from prison, the record 125 exonerations in the US last year must be only the tip of the iceberg:
I think it’s fair to assume – thought there is no way of knowing – that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.The bottom line is that our prisons are full of innocent men. And not only that, says Kozinski, their sentences are probably much too long; we like to think that long sentences deter crime, but there is no evidence that this is so, and other countries that give out much shorter sentences have less crime than we do.
I think every word is true, and it bothers me a great deal that Americans don't care more about this.