The American InJustice System Part II

I watched this A&E program "Another Man's Crime" about this guy Scott Hornoff, a wrongly imprisoned Rhode Island police officer. In this case there is no doubt he is innocent, the real criminal confessed to the crime and provided detail that only the true criminal could know. What is interesting to me is the parallels with the Scott Peterson trial. There was 100% no physical evidence, but the guy was cheating on his wife. In Scott Peterson's case he got the death penalty, so he 'only' has a decade to salvage his case while Scott Hornoff had life in prison so at least he didn't have a timer counting down. What really blew my mind was they interviewed a couple of jurors for the program and one of them stated with absolute conviction that she was certain that if they had to do it all over again they would still find him guilty. In the 'old days' of the US justice system judges would have simply thrown these sorts of cases out. No physical evidence, nothing to try, nothing for the jury to consider. Now people are tried and convicted not on any evidence, but because the jury doesn't like them. How in the hell can you, as a responsible juror, convict someone simply because you don't like them? What kind of moronic system have we built when a juror, as mentioned above, says she would vote to convict knowing that the guy was innocent! Woe betide any innocent caught in our system! Only the guilty have 'justice', the innocent have none.

For those of you who wonder how a police officer can wind up convicted for a crime he didn't commit, here is a bit of background. Because of the lag in time between when he (Hornoff) was questioned and the actual murder, he couldn't recall when he did certain things. He committed the cardinal sin of guessing and it turned out his guesses were not only wrong (creating suspicion) but left him with a wide open hole in his alibi that neatly covered the time of the murder. He said several times that he foolishly trusted the system (this from a police officer!) and not only went to the interview (interrogation, though he didn't consider it so at the time) without his attorney, but got involved in the guessing game he knew was so problematic. Had he simply kept his mouth shut he probably never would have gone to trial because he wouldn't have 'lied' to the interrogators and created the opening wedge. Basically, his inability to recall in detail a few hour time span after several years, coupled with his being a cheat on his wife, was what convicted him. No fingerprints, no blood evidence, no eye witnesses (though those are nearly worthless), no nothing except his foolishly guessing on some times after several years, and of course, being a not a very nice person.

Twelve Clewless People

A harsh commentary on our 'justice' system as am sure the original intent of the founding fathers was to have a check on the power of the legal system, but really, today what qualifies people for being chosen to sit on a jury? Basically the inability to come up with any excuse that will satisfy the judge that you are not going to act unbiased and last out the trial and deliberations to return a sentence. Thus, people who do _not_ want to be in a jury can easily create the impression that they are biased and that is all that is needed to get 'off'. The people who have formed biases and wish to act on them need only make rote answers to the boringly predictable questions and avoid being singled out for summary exclusion by the lawyers involved and bingo, you now get to decide the fate of someone. What heady power for a bored housewife! (Yes, sexist I know, but don't waste your vitriol complaining about this as it is merely to make a point; besides, how many families can even afford a stay-at-home-spouse any longer?) There is also the well-known bias against the accused and the lawyer representing the accused so the jury is already leaning well toward the prosecution before the trial has even begun. If you are the innocent caught in this trap and your public defender isn't feeling motivated (I heard through a friend recently that our mutual friend who is indeed a public defender is paid a whopping $3K to defend someone against capital charges. This is rationalized because the system expects a plea bargain thus our friend could get paid fairly to review some documents and 'talk sense' into the accused) then your lawyer fails to convince the jury that anything about the prosecution's case is subject to interpretation (or even plain wrong), why would anyone expect the jury to return anything but a guilty verdict? Because (in most cases) these twelve clewless people have no legal training whatsoever, they can't recognize crap when they step in it and uncritically ingest whatever the prosecution presents. Why is it that all lawyers are scum when they represent 'bad guys' (or corporate executives) but those same lawyers (well, they all come from the same schools taught by the same professors) are totally trustworthy when they are prosecuting?

Something to keep in mind when considering the actions of the founding fathers: at the time there was a very substantial poll tax in order to vote (and sit on juries). You had to be a male landowner (at that time, being black was irrelevant; if you owned land you were capable of participating in the government process). If you weren't a male landowner you had no opportunity to participate whatsoever, you were just an observer. Beyond the blatant unfairness to women, consider that these landowners have a vested interest in the government. These people are quite unlikely to suddenly move as they have roots in the area and they are likely to be fairly wealthy as they either inherited the land or had the green to purchase it and for the larger land owners, likely they were formally educated. Even if not formally educated, many landowners had to have substantial practical intelligence just to operate their assets, so probably weren't your routine dummies (not that being a lawyer who rents in-town is necessarily a dummy). Then, from the viewpoint of the founding fathers, it probably made really good sense to have juries populated by this rather select group of people as they are more likely to be following the sociopolitical situation and have a vested interest in justice and smooth functioning of the law. Contrast that with what happens today when the vast bulk of the jury pool is made up of people who likely have no comprehension of the point of the Constitution (heck, as interested as I am in the subject I haven't yet made time to read the whole thing) and very likely know nothing about the 'justice' system, rule of law, validity of evidence, etc. Couple with that they are mostly made up of transients (well, maybe my life in the DC Metro area has biased me in that regard) who have few long-term ties to the locality, you can see how radically different juries are today from when our country was assembled.

Twelve Clueful People

So do I have any solution? Well, to start let me say that I am biased toward code law vs. case law (the distinction, for those of you who don't know, is that code (Napoleonic) law is basically established formally and changes slowly while case (English Common) law is established haphazardly, relies on precedent and can change radically; the former lacks juries all together in almost all cases). I think that having an ignorant jury pool is a disservice to our justice system and that while there do need to be checks and balances against the justice system, I don't think they can be effective if the jury (acting as the final arbiter against injustice) is as ignorant as I believe they are. On the other hand, a 'professional' jury is subject to political influence and of course outright bribery (of course all jurors are, but if the pool of available jurors is small the opportunity for bribery increases), just read about the Floyd Landis case over at Trust But Verify and other commentary about how screwed up the doping prosecution system is. I suggest instead that prospective jurors have to pass an exam to qualify for the selection process and then only those who have passed be selected. Further, they be selected randomly such that while each member has an equal chance of appearing on any given jury, the selection process effectively guarantees that each member serve on an equal number of juries in the long run. Presuming the pool of jurors is large enough (no one would have to pay to take the exam, but it should be quite challenging and require extensive knowledge and comprehension of history in general and US history in particular) then it makes bribery before jury selection quite a challenge (nothing stops the potential for tampering after the jury has been selected, but at least they are easier to observe). This way you have a group of self selected people who have shown a strong enough interest in the justice system to study for it and clearly they are committed to sticking to the whole trial process because else why bother and most importantly, they are an educated group of people capable of recognizing when the prosecution is presenting crap and have nothing but inflammatory irrelevant BS. An issue might be getting enough jurors in small towns but that can be somewhat mitigated by requiring the combination of local jurisdictions until you have, say, at least 100 members of the pool. If you couple this with a nominal payment for being on a jury (more nominal than the quaint joke we have today; yes I understand it is part of our civic duty but by and large these are _not_ volunteers, they are conscripts) then you might expect a host of people might feel engaged enough to become part of the jury pool and possibly there might be a real balance against aggressive (sometimes criminal) prosecutors and judges.

Copyright 2009 by Keith Oxenrider