June 19, 2001
Justice system that is short on justice?
Paul Craig Roberts
Justice has been squeezed out of the criminal justice system. Wrongful conviction has become routine as heartless prosecutors and police seek to close cases and mount up convictions. The system today is budget and career driven, justice be damned.
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An ever-growing number of books, innocence projects and overturned convictions speak to the unreliability of conviction. A surprising number of death row inmates have been discovered to be innocent of the capital offense for which they were convicted. A criminal justice system that convicts innocents on the serious charge of murder is certain to convict innocents on less serious charges as well.
The rate of wrongful conviction is high because of serious flaws in what passes as "evidence." For example, criminologists know that eyewitnesses are wrong 50 percent of the time. This means that half of inmates convicted by eyewitness testimony are innocent.
Junk science plays a large role in the conviction of innocents. Microscopic hair-comparison evidence has sent many an innocent person to jail. The weakness of hair analysis is well established. For example, it is a known fact that hairs from the same head often do not match. A test of 240 crime labs found error rates in hair analysis of 50 percent, 54 percent, 68 percent and 56 percent. Yet prosecutors desperate for convictions continue to use the junk science of hair comparison to send innocent people to prison.
Because of the activities of law professor Barry Scheck and various law school innocence projects, DNA analysis is bringing about the release of many victims of microscopic hair-comparison in cases where the evidence was kept.
Forensic fraud is another source of wrongful conviction. Believe it or not, crime labs have traditionally been dependent on police budgets and beholden to prosecutors. Consequently, crime labs have tended to be politically sensitive to the needs of police and prosecutors for evidence. Often the labs withhold caveats and present ambiguous results as compelling evidence. In some instances, the labs actually create the needed evidence.
A suspect´s confession usually convicts him. But in many cases the confession is false. There are various causes of false confessions. Some people with low IQs get through life by being agreeable and telling authority figures what they want to hear. In other cases, confession is propelled by a need, at least once in their life, to be the center of attention. Sometimes police claim a suspect confesses, knowing that people will tend to believe the police and not the suspect.
A growing number of wrongful convictions result from the disreputable practice of paying inmates and police informants with money or reduced prison time for testimony that either identifies a suspect in unsolved cases or convicts a suspect against whom there is no other evidence. In the vast majority of cases, "snitch" testimony is unreliable, and those convicted by it are innocent.
Bad lawyering also plays a role. Lawyers have been known to sleep through their client´s murder trial. Public defenders are often overwhelmed with cases and cannot prepare. Many lawyers are simply unaware of the junk character of much forensic evidence and do not know how to challenge it.
Misconduct by police and prosecutors is one of the main causes of wrongful conviction. Both police and prosecutors suppress exculpatory evidence that points to the suspect´s innocence. Once upon a time prosecutors presented the case for and against the suspect and left it to the jury. But today suspects do not receive the benefit of the doubt.
Police and prosecutors coerce witnesses and knowingly use false testimony. When this isn´t enough, they fabricate evidence. In an analysis of 62 known wrongful convictions, Mr. Scheck found that prosecutors suppressed exculpatory evidence in 43% of the cases, knowingly used false testimony in 22% of the cases, coerced witnesses in 13% and fabricated evidence in 3% of the cases.
Police suppressed evidence in 36% of the cases, fabricated evidence in 9%, and lied in other ways in 55% of the cases.
What can be done to halt the railroading of innocents? Reforms could be instituted, such as making crime labs independent and substituting DNA evidence for junk forensic science. Coercive plea bargains could be halted. Prosecutors and police could rededicate themselves to justice and restore the integrity of the criminal justice system.
The public could read books such as Mr. Scheck´s "Actual Innocence" and Donald Connery´s "Convicting the Innocent" and become aware that there is a high probability that the suspect on trial is an innocent person.
Until the system is reformed and the public becomes aware, we cannot presume a connection between conviction and guilt.