The GOP’s jus­tice re­form op­por­tu­nity

The Washington Post Sunday - - SUNDAY OPINION - georgewill@wash­post.com ruth­mar­cus@wash­post.com

The Repub­li­can Party, like Sisyphus, is again putting its shoul­der to a boul­der, hop­ing to make mod­est but sig­nif­i­cant changes in the Elec­toral Col­lege arith­metic by win­ning per­haps 12 per­cent of the African Amer­i­can vote. To this end, Repub­li­cans need to hone a rhetoric of skep­ti­cism about, and an agenda for re­form of, the crim­i­nal jus­tice sys­tem. They can draw on the think­ing of a fed­eral ap­pel­late judge nom­i­nated by Ron­ald Rea­gan.

In an ar­ti­cle that has stirred con­sid­er­able dis­cus­sion since it ap­peared this past sum­mer in the Ge­orge­town Law Jour­nal, Alex Kozin­ski of the U.S. Court of Ap­peals for the 9th Cir­cuit pro­vides facts and judg­ments that should dis­turb ev­ery­one, but es­pe­cially African Amer­i­cans, whose en­coun­ters with the crim­i­nal jus­tice sys­tem are dis­may­ingly fre­quent and fre­quently dis­may­ing.

Eye­wit­ness tes­ti­mony is, Kozin­ski says, “highly un­re­li­able, es­pe­cially where the wit­ness and the per­pe­tra­tor are of dif­fer­ent races.” Mis­taken eye­wit­nesses fig­ured in 34 per­cent of wrong­ful con­vic­tions in the data­base of the Na­tional Registry of Ex­on­er­a­tions. Fin­ger­print ev­i­dence, too, has “a sig­nif­i­cant er­ror rate,” as does spec­tro­graphic voice iden­ti­fi­ca­tion (er­ror rates up to 63 per­cent) and hand­writ­ing iden­ti­fi­ca­tion (er­ror rates av­er­age 40 per­cent). Many de­fen­dants have spent years in pri­son “based on ev­i­dence by ar­son ex­perts who were later shown to be lit­tle bet­ter than witch doc­tors.” DNA ev­i­dence is re­li­able when prop­erly han­dled but is only as good as are the fal­li­ble test­ing labs.

“Much of what we do in the court­room re­lies,” Kozin­ski writes, “on hu­man mem­ory.” But the more we learn about the way mem­o­ries are “recorded, stored and re­trieved,” the less con­fi­dence we can have that mem­o­ries are undis­torted and un­em­bel­lished by the mind or ex­ter­nal in­flu­ences. And courts rarely al­low ex­pert tes­ti­mony on mem­ory.

The idea that at least con­fes­sions are re­li­able be­cause “in­no­cent peo­ple never con­fess” is re­futed by the in­dis­putable fact that they do “with sur­pris­ing reg­u­lar­ity.” They do for rea­sons rang­ing from a de­sire to end harsh in­ter­ro­ga­tions, to emo­tional and financial ex­haus­tion, and to co­er­cive charg­ing of mul­ti­ple of­fenses made pos­si­ble by the over­crim­i­nal­iza­tion of life.

Kozin­ski says we know “very lit­tle” about how ju­ries de­cide cases. “Do they as­sume that the pre­sump­tion [of in­no­cence] re­mains in place un­til it is over­come by per­sua­sive ev­i­dence or do they be­lieve it dis­ap­pears as soon as any ac­tual ev­i­dence is pre­sented?” Do they ac­tu­ally dis­tin­guish be­tween a “pre­pon­der­ance” of ev­i­dence, “clear and con­vinc­ing” ev­i­dence, and ev­i­dence “be­yond a rea­son­able doubt”? Re­search demon­strates that the per­son — the pros­e­cu­tor — mak­ing a first as­ser­tion has a sub­stan­tial ad­van­tage over those who sub­se­quently deny it. In the court­room, ju­ries first hear from prose­cu­tors.

Pros­e­cu­tions are pre­ceded by po­lice in­ves­ti­ga­tions. Po­lice, says Kozin­ski, have “vast dis­cre­tion” about, among many other things, which leads to pur­sue and wit­nesses to in­ter­view. They also have op­por­tu­ni­ties “to man­u­fac­ture or de­stroy ev­i­dence, in­flu­ence wit­nesses, ex­tract con­fes­sions” and oth­er­wise “stack the deck against peo­ple they think should be con­victed.” A woman spent 23 years on death row be­cause of an oral con­fes­sion she sup­pos­edly made dur­ing a 20-minute in­ter­ro­ga­tion by a de­tec­tive who Kozin­ski says was later shown “to be a se­rial liar.” The con­vic­tion of a man who spent 39 years in pri­son was based “en­tirely” on the eye­wit­ness tes­ti­mony of a 12-year-old who saw the crime from a dis­tance, failed to iden­tify the man in a lineup and was fed in­for­ma­tion by the po­lice.

Kozin­ski sug­gests many re­forms, in­clud­ing record­ing all in­ter­ro­ga­tions of sus­pects, strictly lim­it­ing uses of jail­house in­for­mants, al­low­ing ju­rors to take notes and ask ques­tions dur­ing the trial, and re­peal­ing three felony statutes a day for three years. He cites “dis­turb­ing in­di­ca­tions that a non-triv­ial num­ber of prose­cu­tors — and some­times en­tire pros­e­cu­to­rial of­fices — en­gage in mis­con­duct.” Be­cause a con­sci­en­tious FBI agent re­vealed that Jus­tice Depart­ment prose­cu­tors con­cealed ex­cul­pa­tory ev­i­dence, we know that Alaska’s Repub­li­can Sen. Ted Stevens was wrongly con­victed of cor­rup­tion. Kozin­ski, who rec­om­mends es­tab­lish­ing in­de­pen­dent pros­e­cu­to­rial in­tegrity units, thinks the Jus­tice Depart­ment’s unit “seems to view its mis­sion as clean­ing up the rep­u­ta­tion of prose­cu­tors who have got­ten them­selves into trou­ble.” Kozin­ski fa­vors ab­ro­gat­ing ab­so­lute pros­e­cu­to­rial im­mu­nity.

Fi­nally, he ad­vo­cates care­ful study of ex­on­er­a­tions, of which there have been 1,576 since 1989. And for ev­ery one “there may be dozens who are in­no­cent but can­not prove it.” If the er­ror rate is 1 per­cent, 22,000 in­no­cent peo­ple are in pri­son. If the rate is 5 per­cent, the num­ber is 110,000. What­ever the num­ber, it al­most cer­tainly is dis­pro­por­tion­ately African Amer­i­can.

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