Collateral damage

Convicting the innocent, and preventing their exoneration by opposing post-conviction forensic testing, leaves the guilty at liberty to strike again.

When police and prosecutors suppress evidence of innocence in order to obtain and protect a conviction, the innocent defendant isn’t the only victim. The guilty party is left at liberty to strike again. What’s really shocking about the Michael Morton case is the long struggle of the DA’s office to prevent the post-conviction DNA tests that apparently have now identified a double murderer.

American law schools teach the superiority of the common-law adversary system as an article of faith. That’s appropriate. If you had to rely on logic or evidence, you might wind up doubting that competing attempts at flim-flam lead to the truth.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

8 thoughts on “Collateral damage”

  1. In Germany, “unlike in America, the prosecutor is not on the side of the state. Like a judge, he is obliged to be impartial; he must also ascertain if there is evidence that can be used in the defense of the accused, and he must move for acquittal if the guilt of the defendant is not proved. Only the defense attorney takes one side against the other; he may act only in the interests of his client.” I quote the afterword of CRIME: STORIES, by Ferdinand von Schirach, a German criminal defense attorney.

    The U.S. is obviously not going to adopt the German system, but there are two things that we could do: (1) make DNA tests mandatory when requested, and (2) make a prosecutor’s withholding of evidence a felony.

    1. I agree fully with your suggestions. There is little reason to oppose DNA testing. And prosecutors have entirely too many incentives to get convictions. Let’s give them some to behave honestly.

      1. I knew someone who went absolutely, literally mad. Eventually, in the grip of powerful delusions, they came very close to killing a family member. They needed treatment, and got it, and (to the best of my knowledge) are doing extremely well today.
        But the prosecutor who made it possible for this terrible situation to be resolved through treatment – remember that part about almost killing a family member? – couldn’t sign off on a ruling of incapacity the case until after the next election, leaving the case in limbo for almost a year. Not when an opportunistic opponent might twist such apparent leniency to ruin the prosecutor’s career. In some jurisdictions, a judge would have similar fears. The incentives are all fouled up.

    2. Sadly, Henry, this is how our system is supposed to work. Our District Attorneys and U.S. Attorneys have prosecutorial discretion: they need not bring charges in any particular case. Especially, they are not supposed to bring charges when they believe no crime was committed.

      The pretrial discovery process is (theoretically) a one-way street: exonerating evidence found by the prosecutor (or her subordinates or the police) is legally supposed to be provided to the defense counsel.

      I had the good fortune to meet Vincent Bugliosi when I was in high school. I have never forgotten the things he told us about the way the legal system was intended to work. It is very unfortunate that our adversary system has become a contest between two con-artists instead of a search for the truth and justice.

  2. “American law schools teach the superiority of the common-law adversary system as an article of faith. ”

    Let me make, once again, a plea. I find it impossible to believe that no-one has ever done a study of the comparative effectiveness, in terms of CORRECT (as opposed to successful) convictions across different legal systems. One would think that with DNA evidence, over the past few decades, allowing a number of releases of the innocent in a number of societies, one would have the material needed for such a study. But I’ve yet to find one.

  3. Several years ago my mother was a foreperson on a jury for a trial that was a retrial of a rape conviction that was reversed on appeal. The defendant was a convict on a work release program who had not history of violence. The victime claimed to be a virgin who contracted gonorrhea as a result of the rape. This fact was withheld by the prosecutionfrom the defense, hence the reversal, as the defendant did not have gonorrhea.

    They were out for about an hour before they cme back with the verdict. My mom said that her first thought when she saw the victim’s reaction was “That poor woman just realized that the man who did this to her is still out there.”

  4. “The guilty party is left at liberty to strike again.” This needs to be hammered when the right wing opposes post-conviction DNA evidence – they are soft on crime, letting the guilty go free to strike again. There’s plenty of ammo out there that Republican leadership is soft on crime, and we need to use it.

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