Law Enforcement, Race and the Gun Culture – IV

This is the fifth in this series if you count the Discussion post. I recommend that you read or re-read Part I here, Part II here, Part III here and the discussion here. 

While killings by police have been prominent in the news lately, it is but the tip of the iceberg. Brutality, and even simply disrespect, are equally unacceptable, and under the last mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly, respect for the law hit a low ebb.

This took many forms. The Civilian Review Board, set up as a body independent of the police to take complaints about the police, investigate them and then send them to the Commissioner, was frequently ignored.

According to the New York City ACLU:

Of the cases referred to an administrative trial during this period, consistent with the CCRB’s recommendation, 64 percent resulted in no disciplinary action. (Emphasis added)

But I think that what has happened is that there has been far too much emphasis on police officers as being the main problem.

Law enforcement policy is made at the top and the outrageous policy of "Stop and Frisk" in NYC came right from the top, the mayor and the police commissioner. It was denounced for its racial profiling, but that was not all that was wrong with it. It was an outrageous violation of our Constitutional protections, and had it not targeted men of color, I suspect it would have been challenged much sooner and much more vigorously.

Amendment IV of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I cannot think of a more egregious violation of that portion of the Bill of Rights then for a person to be stopped on the street without cause, entirely at random, and to be forced to submit to a body search.

This was not done by rogue police officers, but on the orders of the mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly.

But the media, and even civil rights and civil liberties groups, have spent far too much time on the misconduct of the police. There are far more egregious parts of our Law enforcement apparatus.

Among these are the offices of the District Attorneys. As I set forth in my post "Law Enforcement, Race and the Gun Culture – II," When a DA wants an indictment he gets one, but DAs, who by the nature of their work need the cooperation of the police, rarely want to indict a police officer, and so we see the charade of a presentation to a Grand Jury, which in accordance with the DAs wishes, fails to indict. The Abner Louima case was an exception, but that was so egregious that it could not be ignored, but nevertheless was to the credit of the Brooklyn DA, whose office handled it, and the prosecuting attorney, Loretta Lynch, who represented the people in court, and who has now been nominated for Attorney General of the US.

But it may be that this case was so egregious that it could not be ignored.

But District Attorney offices are a very large part of what is wrong with our Criminal Justice System, not just for their failure to prosecute police officers who commit crimes, but worse their putting the winning of convictions, over seeking justice. Thus under our system of law, a defense attorney only has the responsibility to present his clients case, while the DA’s office is charged with seeking justice.

Unfortunately, this is rarely the case, with DAs seeking convictions, rather than justice, and failing to turn over exculpatory evidence to the defense, as they are required to do by law. It is but the tip of the iceberg that is revealed in cases where convictions have been overturned, e.g. for every case overturned there are many false convictions that are not. I  quote from the Innocence Project: 

In 1985, John Thompson, a 22-year-old father of two, was wrongfully convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While facing his seventh execution date, a private investigator hired by his appellate attorneys discovered scientific evidence of Thompson’s innocence that had been concealed for 15 years by the New Orleans Parish District Attorney’s Office.

 Thompson was released and exonerated in 2003 after 18 years in prison, 14 of them isolated on death row. The state of Louisiana gave him $10 and a bus ticket upon his release. He sued the District Attorney’s Office. A jury awarded him $14 million, one for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. This spring, Justice Clarence Thomas issued the majority 5-4 decision in Connick v. Thompson that the prosecutor’s office could not be held liable.

The requirement that prosecutors must turn over exculpatory evidence to the defense was settled by the Supreme Court in 1963 (Brady v. Maryland, 373 U.S. 83), which held that:

… prosecutors (must) disclose materially exculpatory evidence in the government's possession to the defense. "Brady material" or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused-- evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.

 If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

But this requirement is observed more in the breach than in its observance. The Innocence Project has found and I quote: 

Such violations have led to an incalculable number of wrongful convictions. Because of the often covert nature of prosecutorial misconduct, it is impossible to estimate how many innocent people have been affected. Furthermore, the vast majority of felony cases are resolved through plea bargaining and never go to trial. Prosecutors may have engaged in misconduct in those cases as well.

 In at least 63 of the wrongful convictions later overturned through DNA testing, innocent defendants alleged prosecutorial misconduct in their appeals or civil trials. Examples of misconduct include eliciting perjured testimony; destroying, concealing or fabricating evidence; making improper and inflammatory statements and more.

 Recent studies of these and other cases have shown that prosecutors are rarely found at fault, and even when they are, they are very rarely disciplined for it. A USA Today investigation found that only one federal prosecutor has been disbarred, even temporarily, for misconduct in the past 12 years despite 201 documented cases of violated laws or ethics rules. The federal prosecutor in that one case was suspended from practicing law for just one year. A study conducted by the Northern California Innocence Project supports these findings. In that study, over 700 California prosecutors engaged in misconduct from 1997 to 2009 and only seven of them were disciplined.

With no penalties for deliberately seeking wrongful convictions is it any wonder that prosecuting attorneys build careers around getting as many convictions as possible, without regard to guilt or innocence.

Most of the cases where exonerations have been obtained have been through DNA evidence. How many innocent people may be incarcerated, though innocent, where DNA evidence cannot prove their innocence, is impossible to tell.

According to the Innocence Project: 

There have been 325 post-conviction DNA exonerations in United States history. These stories are becoming more familiar as more innocent people gain their freedom through post conviction testing. They are not proof, however, that our system is righting itself.

 The common themes that run through these cases — from global problems like poverty and racial issues to criminal justice issues like eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors and inept defense counsel — cannot be ignored and continue to plague our criminal justice system.

 •     Twenty people had been sentenced to death before DNA proved their innocence and led to their release.
•     The average sentence served by DNA exonerees has been 13.6 years.
•     About 70 percent of those exonerated by DNA testing are people of color.
•     In almost 50 percent of DNA exoneration cases, the actual perpetrator has been identified by DNA testing.
•    Exonerations have been won in 38 states and Washington, D.C.

For those who still think that justice is colorblind I call attention to the fact that with “people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned” and 70% of those wrongfully convicted. (See above)

But what makes it even worse is that Parole Boards expect prisoners to express remorse for their crimes, which is rather difficult for the innocent to do. This dilemma is dramatically illustrated in an Iowa Law Review article at pages 524 & 527, where the prisoner, being innocent, could not express remorse for something he did not do, but as the case unfolded, and again I quote:

Goodman had always maintained his innocence and continued to do so in the aftermath of his conviction. Still, more than a decade later, when appearing before the Utah State Board of Pardons and Parole in 2000, Goodman “admitted his culpability for the murder in order to curry favor with parole officials.

But much later:

… in discussing the case … in the weeks following the disclosure of the DNA test, lawyers from the Utah State Attorney General’s Office noted Goodman’s admission of guilt at his 2000 parole hearing as one reason for their hesitancy to declare his innocence.

Thus the convicted innocent found himself damned if he did, and damned if he didn’t, a common occurrence in our crazy quilt system of “justice”.

How Kafkaesque such situations are! But we take pride in our pretense of evenhanded justice.

We have long claimed to believe that:

"It is better that ten guilty persons escape than that one innocent suffer", and this is enshrined by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s, which we claim to adhere to.

But as I have set forth above, in practice it is far from true. In future posts I will illustrate just how we have come to practice the opposite.

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