the beginnings of solutions to America’s injustice problem

It’s easier to point out the problems than to find solutions.  In the American injustice system, I pointed out the problems, and I have documented them in Law: See Also, a collection of links to articles on injustices, usually systemic in nature, perpetrated by our justice system.  In this post, I begin collecting and discussing possible solutions to what I consider America’s biggest domestic problem.

The Innocence Project (from their own statement)

The Innocence Project’s groundbreaking use of DNA technology to free innocent people has provided irrefutable proof that wrongful convictions are not isolated or rare events but instead arise from systemic defects. Now an independent nonprofit organization closely affiliated with Cardozo School of Law at Yeshiva University, the Innocence Project’s mission is nothing less than to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment

Radley Balko and Roger Koppl make five suggestions for reform:

Forensic counsel for the indigent. In many jurisdictions, indigent defendants aren’t given access to their own forensic experts. As a result, the only expert witnesses are often testifying for the prosecution …

Expert independence. Crime labs, DNA labs, and medical examiners shouldn’t serve under the same bureaucracy as district attorneys and police agencies. If these experts must work for the government, they should report to an independent state agency, if not the courts themselves. There should be a wall of separation between analysis and interpretation. Thus, an independent medical examiner would, for instance, perform and videotape the actual procedure in an autopsy. The prosecution and defense would then each bring in their own experts to interpret the results in court. When the same expert performs both the analysis and interpretation, defense experts are often at a disadvantage, having to rely on the notes and photos of the same expert whose testimony they’re disputing.

Rivalrous redudancy. Whether the state uses its own labs or contracts out to private labs, evidence should periodically and systematically be sent out to yet another competing lab for verification. The state’s labs should be made aware that their work will occasionally be checked but not told when. …

Statistical analysis. The results from forensic labs should be regularly analyzed for statistical anomalies. Labs producing unusually high match rates should throw up red flags for further examination. For example, in 2004 Houston medical examiner Patricia Moore was found to have diagnosed shaken-baby syndrome in infant autopsies at a rate several times higher than the national average. This led to an investigation—and the reopening of several convictions that had relied on Moore’s testimony.

Mask the evidence. A 2006 U.K. study by researchers at the University of Southampton found that the error rate of fingerprint analysts doubled when they were first told the circumstances of the case they were working on. Crime lab technicians and medical examiners should never be permitted to consult with police or prosecutors before performing their analysis. …

This is just the beginning of this discussion.

more examples of the American injustice system

Radley Balko and Roger Kopple have an excellent article on the use of science in the courtroom, and how the current system biases supposedly scientific results toward conviction.  They make five suggestions for correcting the situation.

In 2007, Balko published an article about expert testimony gone very wrong:

During the last two decades, there have been more than a dozen high-profile cases in which dubious forensic witnesses conned state and federal courts, sometimes for many years and in hundreds of cases. The most famous example is probably the West Virginia crime lab worker Fred Zain, who from 1979 to 1989 tainted so many trials with false testimony about blood, semen, and hair evidence that the state’s Supreme Court ordered a review of every case in which he’d ever testified. It turned out he had introduced deliberately falsified evidence in at least 134 cases.

However, he really profiles one Steven Hayne, who from this article seems utterly unqualified to do forensic medicine and yet has provided expert testimony that has sent many to prison and possibly some to death row.

According to NAME [National Association of Medical Examiners], a single medical examiner should perform no more than 250 autopsies per year. At 325, the group considers a doctor to have a “Phase II deficiency”; at that point, it will not accredit a practice, regardless of any other criteria.

Hayne has repeatedly testified under oath that he performs more than 1,500 autopsies per year—a staggering number that dwarfs even the output of the prolific Dr. Erdmann. That’s more than four per day, every day of the year, for the 20 years Hayne’s been in Mississippi. In a 2002 deposition, Hayne put the estimate at 1,800.

The article doesn’t get any better from there.

Here’s an Orange County travesty:

Veteran forensic specialist Danielle G. Wieland made the charge last month during a civil deposition related to the December 2005 wrongful conviction and imprisonment of James Ochoa, according to documents obtained by the Weekly.

The allegation is just the latest in a series of sensationally callous screw-ups by law enforcement—police, prosecutors and judges—that aligned to raid Ochoa’s house, arrest him and steal his freedom. He spent 16 months in the Orange County Jail and a California prison. Later, DNA evidence fingered the real bandit, a career criminal in Los Angeles.

The Ochoa travesty didn’t happen merely because the Orange County district attorney’s office repeatedly ignored exculpatory facts. According to Wieland’s testimony, they actively sought to convict Ochoa as mounting evidence pointed to his innocence.

More from Orange County on fake evidence presented by prosecutors.

This is just a few minutes searching.  It’s not getting better.

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Cf. American Injustice System, Collection of related links

the war on drugs

In response to this post on a no-knock gone wrong: Live hand grenades — best self-defense weapon EVER for protection from drug dealers AND police entry teams. After Claymore mines, but those are a bit much for home defense. Of course, that depends on where your home is.

On the WOD. Clearly it’s gone WAY too far, including no-knock and property seizure. I think we should apply the alcohol rule to drug legalization: If it’s no more harmful than alcohol, legalize it. There do need to be case-by-case provisions. E.g., you can’t get a contact buzz from sitting next to someone drinking whiskey, but you can from someone smoking cannabis, so laws need to take things like that into account. I also think, at least initially, only domestically produced recreational drugs should be legal; we need to cut the money going to criminal and terrorist organizations.

However.

The failure of the WOD to eliminate illegal drug use in America means . . . What? We should legalize murder? I mean, laws against murder have failed for millenia; when do we give up and say, ya know, it’s cool?

Tax it big time! Yeah! Oh, so these people who are happy to support murderous drug dealers, terrorists, and drug lords who destabilize weak nations, just to have a little fun on Saturday night, are now going to become good little citizens and pay really high taxes to get their kicks? No. Really high taxes are just going to result in the continuing criminal trade in drugs.

Lastly, these people are financing murder and mayhem here at home, FARC et al abroad, and heroin buyers specifically are very possibly supporting the Taliban in their drive to kill American soldiers and return Afghanistan to a state of wretched tyranny. And, they are doing this for FUN, not for any greater principle or for FREEDOM!!!!!! They are vermin. Destroy their lives. Throw them in small cages and let them rot.

Or, consider it treason in a time of war and off ‘em. If you’re sending cash to the Taliban, or to FARC, or to any number of other criminal / terrorist organizations that buys their bullets and bombs with drug money, you are as much a traitor as if you were buying war bonds from Hitler in 1944.

Naturally, due process should be observed, dogs should not be shot senselessly, and people who are addicted should be treated, not hung. And for the rest of us, grenades. I’m telling you, a live grenade on the floor is a great and immediate disincentive to shoot dogs, harass old men in underwear, etc. It also gives the missus an excuse to redecorate.*

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*If you’re married. Hmm, maybe my reliance on hand grenades as a form of self-defense is why I’m still single . . . Nah, that’s silly. Women love a man in hand grenades, right? Right?

the danger of the UN, part 2

Sudan is free to commit genocide because it supplies China with oil.  As a permanent UNSC member, China has veto power over all UNSC resolutions, so actually doing anything to stop the genocide in Sudan would be impossible to do legally.

In a similar way, the UN system is responsible for supporting tyrants and oppression around the world.

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part 1

Law: See Also

Some related links to my post on the American justice system (more to be added as we go):

Dumb Laws Blog

FBI breaks law

US Supreme Court gives rights in excess of Geneva Convention to illegal combatants

An ex-FBI agent outlines the mistakes the agency made in a key investigation

Rachel Lucas on a no-knock entry that shouldn’t have been

Overkill: The Rise of Paramilitary Police Raids in America

Misuse of science and the bias of expert witnesses in the courtroom

Pathetically unqualified medical examiner loved by prosecutors

Orange County prosecutors want convictions, not trut

American (In)Justice System

My main contention is that the American justice system has become a form of tyranny.

This post could easily become a long, long essay, so I will simply outline my argument. Future posts will deal with some specifics, including a few ideas for how to repair the system. I am not a lawyer, nor do I play one on TV, so I fully recognize some of my arguments may be naive; I post this as a challenge, as an example of the frustrations of an American citizen, and welcome anyone more knowledgeable to correct me if I am wrong.

1. The system exacts a toll from every citizen, not for their good, but for the good of legal professionals (lawyers, judges, police of various kinds, etc.). No matter who else wins or loses, the legal professions always win, always gain power, always gain wealth. The fear of the legal system itself works in favor of the legal professions and hurts everyone else. This seems to me a form of extortion. Legal professionals themselves are often immune from prosecution, either by law or by practice.

2. The system is essentially impossible to change from within. Within the federal government there is a separation of powers between the judicial, legislative, and executive. However, the legal profession has subverted this separation. Two of the three branches are controlled by members of one social group: lawyers. These individuals cannot be counted on to change a system they’ve been indoctrinated in, that has provided them with prestige and wealth, and that continues to affirm their career decisions. We recognize this in other cases: We would not let any other group police itself, but rather the legal professions police all other groups, and themselves. There are times, e.g. during the Clinton administration, when lawyers control all three branches of government. Repeatedly we see that legal judgments never go against the legal profession. In order to make changes, it would be necessary to appeal to legal professionals to change their own profitable, prestigious system. I consider it essentially impossible.

3. The law itself is often contradictory and therefore essentially arbitrary. There is no difference between a tyrant who rules by whim and a massive system of contradictory laws that are impossible to wholly understand. For that matter, there is no difference between an arbitrary tyrant and a single law that the person it applies to cannot understand. Legalese is the enemy of the average citizen in a very real, and sometimes lethal, way. The power of judges is likewise arbitrary; every judge is a tyrant in his or her own courtroom, some benign, some not. In the case of truly tyrannical judges, the press and lawyers are well-advised not to publicize this fact if they may end up in that judge’s courtroom in any capacity whatsoever.

Example 1: I know of a case in which an elderly woman was ordered to appear before a judge at a certain time. She arrived in plenty of time, but mistook the courtroom and went to the wrong one. Realizing her mistake, she found the right courtroom and entered a few minutes late. The judge ruled her in contempt of court and she spent the night in jail. After her release, she contacted the press and a small story appeared. The judge then called her attorney demanding to know why he had advised her to go to the press. The elderly woman had no other recourse, the attorney needed to keep good relations with the judge, and nothing came of this.

Example 2: I know of another case in which a judge ordered a Department of Human Services caseworker to find a foster home for a child by midnight on a certain day. The caseworker failed and was jailed for contempt for several days. Upon being released, the caseworker quit DHS, leaving the section assigned responsibility for finding foster homes for abused children short one worker until a new one could be hired and trained.

There is a great deal more to write, but this will suffice as an introduction to the topic. In summary, the American legal system is essentially arbitrary, impossible to change, and extorts resources from the citizenry for the benefit of a small, powerful elite. It is a form of tyranny.

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Postscript: This post has been a long time coming. It is coincidentally on the same theme as Grim’s recent post, The Trust Issue, which references this article about Americans prosecuted by the US for violating Honduran laws that had been repealed before the Americans “broke” them. (Grim h/ts Southern Appeal, a blogging lawyer.)

The inspiration for this post came from Grim’s blog as well. In a post I can no longer find because I can’t find a link to his archives, if he has them, there was a discussion of Crito, which relates Socrates decision to die as sentenced by law instead of run off to a safe city. I had invited someone at Grim’s to write an opposing piece, which I would be happy to post here if I could remember the gentleman’s name and contact him.

Finally, there is probably someone who has done this better, but this will do for me. I’d be happy to get links to any posts on similar or contrary themes.

Update, 2008 June 21: Grim links an excellent post from his archives that should be read as background philosophy for this post. The comments are excellent and should be read as well.

Also, I will be collecting other related links here.