Randomly Review Criminal Cases

This Slate article suggests that prosecutor Mike Nifong’s unethical actions in the Duke Lacrosse case might not be that unusual among prosecutors.  The article argues that the only reason Nifong’s unethical behavior was uncovered was because the Duke case generated an extraordinary amount of scrutiny.

I propose that we randomly select a few criminal cases for intensive review.  The review would give us an indication of how honest prosecutors are and would provide some deterrence against unethical prosecutorial conduct.

Over 90% of criminal cases settle through plea bargaining.  These cases never reach trial.  So, as the Slate article points out, any prosecutorial misconduct that might have occurred in these cases would almost certainly go undetected.  For my proposal to succeed plea bargained cases would have to be eligible for random intensive review.

Ideally, at least one person participating in the review would have subpoena power.  But if the government was unwilling to go along with my random review idea, private organizations could conduct it by themselves.  Each year, for example, law schools could randomly select, say, 30 criminal cases that were concluded in the past year.  These schools could then have their students investigate every aspect of the case to determine if justice was done.

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  • I’d go much further and suggest that we randomly audit all sorts of behavior that could potentially hide foul play.

  • Pseudonymous

    If we want to make the claim that the criminal justice system is trustworthy, it would seem a good idea to test it now and again.

    Although I doubt the system will be enthusiastic about this idea.

    By the same argument, we should also include a sample of cases where the defendant was found not guilty. Wrongful acquittals may be quite as big a problem as wrongful convictions.

    Perhaps someone should tell the papers what a great source of scandals this would be.

  • We already have some of this with The Centurion project. In addition, among cases that went to trial I would suggest focusing on those with a public defender.

  • The grand jury system is so vulnerable to abuse that it is commonplace in the legal profession to assert that any prosecutor could indict a ham sandwich.

  • The administration of justice ostensibly overcomes bias by allowing an open contest before a neutral arbiter. By long practice, it has been decided that truth is revealed from the conflagration between defense counsel and prosecution, umpired by a judge and adjudicated by 12 jurors.

    Of course, the system breaks down if one side has nearly unlimited funds for investigation, transporting witnesses, hiring experts and the other side has none of that.
    With the contest skewed their way, DAs, prosecutors and enforcement officers use, understandably, their advantages to bludgeoning underrepresented defendants into unfavorable plea deals. Those defendants who forced their public defender to trial faced an unfair contest when it came to experts, investigations, and quality of representation. All the money is on the prosecution side (including their salaries and loan-forgiveness), all the investigative power, power to trade for testimony, etc. Without a fair contest, you don’t overcome bias and the administration of justice is susceptible to prosecutorial bias.

    The case studies you seek are those where the defendants have money. Both the Duke case and the OJ Simpson case pitted talented and well funded defense teams against prosecutors overly reliant on leveraging money and manpower to get a plea or conviction. As a law student, I was hired to read every bit of trial transcript from the OJ trial and it was clear that the police manipulated, created and moved evidence to spruce up their case. The DA knew, but still presented the evidence. A normal public defender would have been overwhelmed and plead out. But the all star defense team exposed all the manipulation and lies and the DA’s complicity. The jury very reasonably concluded that if much the evidence was clearly tainted and much of the prosecution’s team and investigators complicit, then they could not be believed at all.

    I believe that your study can be conducted by simply picking random indictments and hiring some great defense lawyers top defend it. By intensive examination of evidence and testimony permitted under our evidence rules, your lawyers will uncover all sorts of biases, although most injustice arrives from plain laziness, cutting corners, confirmation bias once a suspect is identified and other not necessarily immoral biases).

  • Criminal justice outcomes are a function of both prosecutorial and judicial discretion, and the recent trend in the US has been to increase the former at the expense of the latter. Penalties are higher than they have ever been and as a result, fewer cases are going to trial than ever before. In the rare case where a COURT actually decides the outcome of a case, that decision is reviewable on appeal, subject to public scrutiny and, in recent years, increasingly constrained by sentencing guidelines and mandatory minimum sentences. There are reasons to believe that judges and juries might be better decisionmakers than prosecutors, but Americans vote and legislate as if they trust the prosecutors much more. 90% of cases are resolved through prosecutorial plea bargain, induced under threat of draconian punishment. The supposed ‘right to trial’ in the US is, for most criminal defendants, pure window dressing.

    Of course, this is not to say that everyone is convicted. Indeed, the modern administration of the Fourth Amendment may actually upped the ante for ‘actually innocent’ defendants by making convictions of ‘actually guilty’ defendants more difficult to obtain. Heightened penalties and fewer trials are the hidden cost of the uncertainty that the Exclusionary Rule has brought to the game. Prosecutors jaded by defendants who walk ‘on a technicality’ are less inclined to listen to the actually innocent. For BOTH sides, this game is much more unpredictable, and the stakes are much higher than they once were.

    It is this uncertainty, more than anything else, that give wealthy defendants such an advantage in the modern criminal justice system. Egalitarians tend to be vocal advocates for the Fourth Amendment, but I would argue that its impact is a regressive burden on the poor. For the average petty urban street criminal, a system with less Fourth Amendment protection (and more lenience) might end up being a better deal in the long run.

  • Janet Whipple

    I have the perfect case and would like to know what organization would help with a review of the case.