Adversarial Justice, Sort Of: The Warts

Allow me a few thoughts on our adversarial system of criminal justice, and its warts.

The problem with the adversarial system is that it is adversarial. In principle the focus in a trial should be on finding the truth. In practice it quickly shifts to winning the trial by any means that will not actually get the lawyers put in jail themselves.

Think about it. In any trial whatsoever, the prosecutor will say that the defendant is guilty. Otherwise he must confess to knowingly prosecuting an innocent man, or admit that he has a reasonable doubt. He can do neither and continue with the case.

In almost any trial the defense attorney will say that the defendant is innocent. (An exception comes when the evidence is incontrovertible; then the defense attorney says that society made his client do it, or too much sugar, or he really thought he was doing something else.)

If the prosecutor always says the guy is guilty, and the defense usually says he’s innocent, then half of them are usually wrong — which means they are lying, honestly mistaken, guessing, or seeking professional advantage. Is this reassuring, or what?

Defense attorneys in honest moments admit that their job usually is to free the guilty. A friend of mine, lawyer variety, told me of his client who, reeking drunk, ran off the road, wrecked, stumbled from the car, and passed out on the ground. In the particular jurisdiction, the cop has to see the drunk actually driving to convict him. The attorney used this to get the guy off, which means, since the driver was a lush, back on the road with you and me.

This is what is wrong with adversarial system. Everybody involved knew the man was guilty, and knew he was dangerous to the public. Truth takes a back seat to winning.

Why would a prosecutor knowingly imprison an innocent man? If he’s assigned a case, he’s expected to prosecute it. He in all likelihood won’t know the guy to be innocent, though he may have doubts. (Can he possibly believe that every case assigned to him over decades will always involve a guilty defendant?) As the case proceeds, he may have graver doubts. His choice is to prosecute anyway, or to say, “Come to think of it, this case is kind of weak. I think I’ll drop the whole thing.” Not good for the career, or for the ego, which has a lot to do with it.

If the jury finds the guy not guilty, which is to say finds a reasonable doubt, then it follows that either the prosecutor was not competent to see a reasonable doubt when there was one, or that he saw a reasonable doubt and prosecuted anyway. Which inspires more confidence?

Self-interest has much to do with decisions that should be made disinterestedly. Actual example: A couple of weeks ago I wrote about a guy in Loudoun County who was convicted of molesting his children and got thirteen years. The social-services people for Virginia reviewed the findings of Child Protective Services, on which the conviction was based, decided the children’s testimony had been manipulated, and determined the charges to be unfounded.

Now, you or I would think this reason enough to get un-manipulated testimony from the kids. Thirteen years is a lot of a guy’s life to take when things aren’t clear. The prosecutor wants to let the conviction stand. Why?

Human nature is a real good guess. (I don’t know the guy.) Would you want to tell the world that, yes, you falsely sent an innocent man to prison for thirteen years? Would you even want to admit to yourself that you had done it? What would it suggest to people about your suitability as a prosecutor? Imprisoning the innocent is not part of the job description.

Prosecutors are promoted for winning cases, not for embarrassing the state. Many have political ambitions, which is fair enough. But an opponent in an election would make much of highly publicized professional mistakes. It’s easier to say, well, he’s probably guilty, and hang tough.

I’m not sure how to fix things. But I do know that too many influences come into play that have nothing to do with finding the truth: vanity, combativeness, desire for promotion, and other forms of self- interest. Above all else, the problem is the failure to separate winning from accuracy of verdict. I shudder to think how many people are behind bars who don’t belong there.

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