Yeah, another Troy Davis comment: The rules of the justice game

The scariest thing about cases such as Troy Davis’s: I bet this misdeed was done by people who believed he is guilty.

Georgia killed Troy Davis by lethal injection last night. He might have been innocent; he certainly should not have been executed. One thing seems clear to me regarding the Troy Davis case, the Cameron Todd Willingham case, and others: The fact that judges and others believe the defendant to be guilty allows them to overlook real problems with the way evidence is collected and cases are tried.

Such botched death penalty cases and wrongful executions bring the American public face-to-face with unpleasant realities of our criminal justice system we would rather not confront—realities that render our legal system utterly unprepared to make the kinds of decisions one needs to make in ending a human life.

Our federalist system gives local majorities great discretion—I believe too much discretion–to inflict injustices on genuine or merely alleged perpetrators of crime. For that very reason, it provides people with an opportunity to witness these injustices, and thus to learn from them and do better. I am convinced that public support for the death penalty will decline as increasing numbers of Americans perceive this reality.

The injustices are most pronounced and intolerable in the relative handful of capital cases. Many of these injustices are obviously more common in non-capital cases. Eyewitnesses prove surprisingly fallible. There is the mistreatment (in multiple senses) of mentally-ill and intellectually-disabled people. Tragedies result from incompetent or grossly under-resourced legal counsel. There is the sorry spectacle of elected officials tolerating or upholding visibly unjust outcomes when this seems politically expedient to them.

Perhaps most pernicious, there are the toxic consequences of he’s-probably-guilty-anyway jurisprudence, whose on-the-ground realities depart from (indeed sometimes invert) the version of due process our children learned in school. It’s hard to understand how an apparently innocent defendant might be railroaded unless you place yourself into the mindset of the police, prosecutors, attorneys, judges, and other human beings who cut some legal corners in the sincere belief that this defendant was probably guilty.

Long ago, Alan Dershowitz noted this last reality in what he called thirteen rules of the justice game. Rule XIII is way too cynical for me. Yet rules I-XII have uncomfortable validity. With Professor Dershowitz’s permission, I’ve reproduced these rules below. The more one ponders the environment that gives rise to these rules, the easier it becomes to understand how tragedies emerge from the normal workings of our justice system.

There is no silver lining to Troy Davis’s death. There is, however, one potential redemptive element. If his wrongful execution and others lead us to take a long hard look at the real operation of our criminal justice system, some good may come of it.

Rules of the Justice Game

I. ALMOST ALL CRIMINAL DEFENDANTS ARE, IN FACT, GUILTY.

II. ALL CRIMINAL DEFENSE LAWYERS, PROSECUTORS AND JUDGES UNDERSTAND AND BELIEVE RULE I.

III. IT IS EASIER TO CONVICT GUILTY DEFENDANTS BY VIOLATING THE CONSTITUTION THAN BY COMPLYING WITH IT, AND IN SOME CASES IT IS IMPOSSIBLE TO CONVICT GUILTY DEFENDANTS WITHOUT VIOLATING THE CONSTITUTION.

IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV.

VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.

X. MOST JUDGES DISBELIEVE DEFENDANTS ABOUT WHETHER THEIR CONSTITUTIONAL RIGHTS HAVE BEEN VIOLATED, EVEN IF THEY ARE TELLING THE TRUTH.

XI. MOST JUDGES AND PROSECUTORS WOULD NOT KNOWINGLY CONVICT A DEFENDANT WHO THEY BELIEVE TO BE INNOCENT OF THE CRIME CHARGED (OR A CLOSELY RELATED CRIME).

XII. RULE XI DOES NOT APPLY TO MEMBERS OF ORGANIZED CRIME, DRUG DEALERS, CAREER CRIMINALS, OR POTENTIAL INFORMANTS.

XIII. NOBODY REALLY WANTS JUSTICE.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect, tnr.com, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

18 thoughts on “Yeah, another Troy Davis comment: The rules of the justice game”

  1. I think the error rate is much larger than this implies. I know one probably innocent person in jail, and one person unjustly arrested, and I hardly ever leave the house.

    Both people of color, natch.

  2. Besides just being against the death penalty, we should be pushing for an innocence project in every single county. Someone who actively looks for the errors.

  3. Well, the errors are *supposed* to be found by the defense (actually, they are also
    supposed to be found by the prosecution, who then tell the defense: see Straus-Kahn for an example of this actually working, though in that case problems not errors).
    I suspect overall conviction rates would go down a lot if this part of the system
    worked as it should.

    The value of the innocence projects would then be the cases of new evidence: I suspect that, if the initial trials were done properly (and I am *not* saying that
    this now is the case: I agree with the post), new evidence would actually be pretty
    rare outside of the kind of technology change we have seen with DNA: and this kind of change is itself rare.

    So, I think the primary need is to get it right the first time.

  4. In “The Limits of the Criminal Sanction” (Stanford, 1968), Herbert Packer wrote about two models of the criminal justice system, the Crime Control Model and the Due Process Model. Those who can’t afford good legal counsel (see Jay Casper’s article “Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender”) are subject to the crime control model, where efficiency in throughput is the goal. As for Dershowitz’s Rule XIII, it may be cynical, but it’s pretty realistic.

  5. I’d add one more rule:

    XIV. Rules VIII, IX, and X do not apply if a prosecutor acts as if the judge is a rubber stamp, even though the judge usually is a rubber stamp.

    This explains why courts are quite active about policing Brady violations, even if they believe that the defendant is, in fact, guilty. If Brady becomes irrelevant, so does the court. (Brady, for you nonlawyers, is the Supreme Court case that demands that prosecutors turn all potentially exculpatory evidence over to the defense.) It also explains why the federal courts have taken sentencing discretion back from the prosecutors.

  6. While Rule XIII may be true of those in the law enforcement system, for most of us not involved, Rule XIII is the antithesis of what we want. And perhaps that explains why we tend to tolerate Rules I- XII.

    To the extent these rules are true, they highlight the hypocrisy inherent in our justice system. I’ve served on two criminal juries, and in both cases we were told, “The filing of a letter of information has no evidentiary value regarding the guilt of the defendent,” and “the Grand Jury’s indictment of the accused has no evidentiary value in this case.”

    What surprised me was that I seemed nearly alone on the juries in believing the judge when he said those things. On one case, one of the jurors said that we wouldn’t be sitting here (in the jury room) if the defendant were not guilty.

  7. The bottom line is that judicial and especially prosecutorial immunity from even notorious misconduct makes all these rules operative, most critically when heinous crimes are alleged, which is precisely when the system should be most careful to cool the ardor for convictions at any cost.

    Until we can become civilized enough to abolish the death penalty, we should at least remove prosecutorial and judicial immunity for disbarment and even prosecution for negligence or willful errors occurring in capital trials. After all, these worthies have such high confidence in the infallibility of the system that they surely would not fear that error would creep in and harm them? After all, the system is so perfect that we are all supposed to deem it justice when yet another black male meets his end at the hands of the system. The overwhelmingly white and affluent bench and bar surely would welcome the opportunity to demonstrate their confidence in the system by giving up their own immunity for misconduct and testilying, which never occurs, and which never determines the verdict.

  8. In the 1970s and 1980s, the UK justice system went through a paroxysm of IRA-related cases for terrorists offences like pub-bombings, where large numbers of innocent people were killed. In two of these famous cases, there were gross miscarriages of justice. Refusing one appeal, a Law Lord (Denning) said he could not find for the defendants because it opened the “apalling vista” of complicity between police, prosecution and the judiciary to obtain convictions.

    At the same time, the British Parliament voted against the Thatcher Government’s attempt to re-introduce the death penalty for terrorist offences. And the struggle to free the Birmingham Six and Guildford Four was led by British lawyers and British Members of Parliament. In the UK, at least, there seemed to enough determined men and women intent on seeing the justice system operated as due process.

    Eventually, the “apalling vista” was accepted and the innocent men were freed, but only after great damage to their mental health. I believe the British justice system has been the better for it – though no policeman or lawyer was ever accused of twisting evidence to obtain convictions.

    What is baffling about the American cases is that instance after instance of innocent men and women being imprisioned or executed seems to have no effect on public opinion.

  9. These “Dershowitz Rules” seem sadly accurate to me.
    Dennis’ reference to the juror who believed the defendant must be guilty or he wouldn’t be on trail is, I think a common idea held by many people. It is often implicit in the attitude that it is wrong to question the honesty or motives of police.
    When issues of grave injustice are raised I think of the few seperate occassions when TV investigative reports have exposed cases of gross prosecutorial misconduct/incompetence and listened to prosecutors insist that the obviously horrid judgement must stand or the criminal justice system would crumble. Basically it seems to come down to, “I got the conviction fair and square and nobody’s going to take it away from me.”
    It is “The Justice Game” indeed and there seems to be no sense of shame.

  10. “XI. MOST JUDGES AND PROSECUTORS WOULD NOT KNOWINGLY CONVICT A DEFENDANT WHO THEY BELIEVE TO BE INNOCENT OF THE CRIME CHARGED (OR A CLOSELY RELATED CRIME).”

    I’d believe ‘many’, but ‘most’?

  11. The budget for every jurisdiction’s Public Defender’s office should be AT LEAST equal to that of the D.A. or other prosecutorial authority’s budget. If we believed in fair trials, they would be. But we don’t.

  12. What NCG says. Dershowitz must count himself among all defence attorneys. I used to agree with him, but there are too many known cases of convicts whose innocence has been proven beyond reasonable doubt. Also there were the amazingly criminal NY transit police who made up 100 crimes (no crime had been committed) and arrested 100 people knowing that there was no trace of justification(sounds like kidnapping to me). 50 of the defendents charged with nonexistent crimes plead guilty. 20 more plead innocent and were convicted. In the end prosecutors figured out what had happened and had the victims freed (but as far as I know didn’t charge the serial kidnappers).

    I think the point is that police, defence attorneys prosecutors and judges almost always believe that the defendant is almost certainly guilty. But they are often wrong.

    I find it impossible to doubt that the cases of proven innocence of convicts is the tip of an iceberg. Innocence projects are few and have low budgets. Proof is usually not available (which is why most crimes are not punished).

    I think the discovery of DNA fingerprinting revealed a fact which would not otherwise have been discovered. I would guess that Dershowitz has changed his mind on point 1 some time since long ago. I also guess that pigs will fly before he admits he now thinks that anything he ever said was incorrect.

  13. As far as juries go, meanwhile, the death penalty is particularly problematic because by excluding people opposed to capital punishment you tilt the pool toward people who believe Rule I.

  14. XI. MOST JUDGES AND PROSECUTORS WOULD NOT KNOWINGLY CONVICT A DEFENDANT WHO THEY BELIEVE TO BE INNOCENT OF THE CRIME CHARGED (OR A CLOSELY RELATED CRIME).

    How could a judge or prosecutor unknowingly convict a defendant? Is this just clumsily written, or am I missing something?

  15. Swift, you’re right. The word “knowingly” should be dropped from the sentence. Also, “who” should be “whom.”

  16. No, I beg to differ. Knowingly belongs there. They can unknowingly convict an innocent defendant if the policing agency and/or the prosecutor’s investigative staff frame the defendant or withhold exculpatory evidence from the prosecutor. Perhaps whom they believe should be stricken, though.

    I think that what Dershowitz is getting at here is the matter of prosecutorial and judicial discretion. The prosecutor doesn’t have to bring charges if she believes no crime was committed. Similarly, a judge has the power to dismiss a case if he believes the evidence proffered is insufficient to support the charges. So if either the judge (later in the process) or the prosecutor (earlier in the process) believe the case is an Oakland case (there’s no there there) the charges are dismissed.

  17. Dennis,

    No, I beg to differ with you. It does not make sense to say that prosecutors and judges can unknowingly convict a defendant whom they believe to be innocent. One must, not merely may “perhaps,” strike “whom they believe.” To strike “whom they believe” would leave Rule XI as saying that prosecutors and judges might unknowingly convict a defendant who is innocent (whether or not the prosecutor’s investigative staff knows and conceals the fact that he is innocent). True, but trivially so, and entirely changing the point of Rule XI.

    Henry (inadvertently “Anonymous” above)

  18. But what about the quantifier Most? That makes it non-trivially true, because it implies the existence of prosecutors and judges who would knowingly convict an innocent person, probably pour encourager de les autres.

    But I still think Dershowitz’s point here is prosecutorial and judicial discretion.

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