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THE DEFENSE NEVER RESTS
August, 19th, 2009
Republication of article written in 1995.
THE EIGHTH WONDER - THE HUMAN ASSEMBLY LINE
First published in 1995, I read this again and realize that many years ago I saw the fallacy of our legal system early on. Yes its a great system relative to the rest of the world but its greatest weakness is that it is run by men and women.
In business school we are told of an interesting lore of business where an American company orders 10,000 door panels from a Japanese manufacturer. The terms allow for a 3% defective rate. The order arrives with a neatly packaged aside with a note that reads "we do not know what you need these defective door panels for but here they are as you requested". In business it alerted Americans that we were looking at the assembly line askew.
In law, it is much more alarming. It can not be denied that our system is akin to an assembly line. The process begins on the street with a police officer. The arresting officers training vary from city to city and department to department. This is handed to a new judge who sets bond and usually a brand new prosecutor as such menial tasks as bond and charging the defendant is delegated to the lower echelons. Once charged the defendant meets his trial judge which in smaller jurisdictions is the same judge. A more experienced prosecutor then takes the case. Each case carries with it a vast array of differences involving human input. Most important is the variance of the human element involving evidence, whether it is the witness or the scientist. Credibility and ability to be accurate varies greatly amongst all humans. This amorphous body of facts in a case is sifted and shaped by a judge who has a varying level of character and ability. It is no surprise that some judges are conservative and some are liberal. Both may tend to skew, and I use 'tend' lightly, the evidence to conform to their beliefs.
This amorphous body of fact, which started at the hand of the sometimes unintelligent and sometimes intelligent officer, sculpted by the sitting judge, is then presented to twelve humans with varying degrees of character and ability. Each of these humans view on life is grotesquely shaped by an industry whose job it is is to keep that person shocked and stimulated. In a few short days the legal process attempts to shed jurors misconceptions of a lifetime of Perry Mason, CSI, and other shows which have little relation to reality.
This amorphous body of fact has narrators. In some instances those narrators are less then honorable. I should say in many instances. There is the prosecutor who hides evidence which will give the amorphous shape a truer ring. There is the defense lawyer who has hidden contempt for his client and is more then willing to see him down the river and thus fails to shed light on parts of the amorphous body of what is the animal which has been borne of this process.
Of course this is all reviewed on appeal. Many appellate courts have no experience in criminal matters. Many states do not have criminal appeals courts but have general courts which hear all cases. Add to that the very real fact the judges predisposition has a real effect. We see how political the appellate court may be every time a new supreme court justice is appointed. At a party of appellate court clerks, a story was overheard. The story was that on the clerks first case she wrote the opinion and the result favored the defendant. The judge turned the case away and informed the clerk she had done it wrong. Do it again. She did. The next draft came down on the side of the state. This is no surprise. It likely happens the other way too. Corbin and Willston have been discussing this dichotomy of judges effect on cases for decades.
This is the assembly line. What is the error rate of this assembly line? In Illinois 50% of death row were freed as being wrongfully convicted. Forget about that for a moment. If 50% is the error rate for death row what is the error rate for the armed robbery cases? for the sex cases? for drug cases? Death row cases get all the attention the court will allow. Either side needs more time to do some act it is granted. The evidence is poured through with great interest. Another expensive test? Done. The possession of 2 grams of cocaine? More time is needed to investigate? Denied.
If the machines generate 3% defective rate on a regular basis and have no personal interest, have no bias, no hidden agenda, do not tire, and did not have a family member fall victim to a similar crime what is the error rate for our system? Add to that 50% defective rate in death row cases what is the failure rate for the rest of the cases?
The overriding purpose of the law it seems is to reign in our spirit to effect the outcome. Like logic to someone who is passionate. It is the medicine for the illness. The human illness is the desire to view all one way or the other. Logic thru the law is the cure. Most all evidentiary rules are aimed at this cure.
ELEVEN YEARS LATER - IN RETROSPECT OF A COURAGEOUS PRISTINE EARTH
It occurred to
me that there are many very old maxims of law which have been "overturned"
or have been carved up to meet "societal demands". Often, sayings like
"traditional is not necessarily just" are developed to advance "better" and
more sound reasoning. In evidence we learn that "any competent attorney can
get evidence admitted under a hearsay exception". The rule which protected
the accused or the defendant is now riddled with holes such that classmates
exclaim "How idiotic, why do we even bother? If any competent attorney can
get in evidence under a hearsay exception why should we have or learn it?".
I am not claiming to have discovered that the hearsay rule is ineffective,
many law review articles have claimed just that. I am not trying to advocate
for the accused. Reasoning of courts have fallen by the wayside to achieve
their goal, their so called "agenda". What stood as a "sound" rule for so
many years is done away with in a relatively short period time.
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