Sunday, February 03, 2013

A call to the judiciary

There was an article in the NY Times this weekend about why cops lie.  It's a nice piece, but nothing really new.  Professor Dershowitz has been writing about lying police officers for a long time, and here are some of his rules of the "justice game" from The Best Defense:
IV. ALMOST ALL POLICE LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DFEENDANTS.

V. ALL PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS ARE AWARE OF RULE IV. 
Those are interesting concepts, but the following 4 statements will encourage more discussion:
VI. MANY PROSECUTORS IMPLICITLY ENCOURAGE POLICE TO LIE ABOUT WHETHER THEY VIOLATED THE CONSTITUTION IN ORDER TO CONVICT GUILTY DEFENDANTS.

VII. ALL JUDGES ARE AWARE OF RULE VI.

VIII. MOST TRIAL JUDGES PRETEND TO BELIEVE POLICE OFFICERS WHO THEY KNOW ARE LYING

IX. ALL APPELLATE JUDGES ARE AWARE OF RULE VIII, YET MANY PRETEND TO BELIEVE THE TRIAL JUDGES WHO PRETEND TO BELIEVE THE POLICE OFFICERS.


So what is to be done about lying police officers?  We need to change rules 8 and 9.  Judges need to start calling them on it.  And of course, lying officers aren't the only problem with the criminal justice system that people have been writing about for years. 

There has been a lot said about prosecutors overcharging, the trial tax, and the Sentencing Guidelines just to name a few of the problems.

What can be done?  Article III judges, with life-time appointments, need to start speaking up and checking the executive branch with more vigor. 

--Dismiss more cases.  (See, e.g., Judge Scola in the "Pakistan terror" case by granting a judgment of acquittal; Judge Cooke in Ben Kuehne's case).   

--Grant more and longer variances. Judges are starting to grant more and more variances, but they are of the 6-12 month variety.  There are too many people in jail for too long because of the Sentencing Guidelines.  A federal conviction ruins people's lives.  Not every case necessitates lengthy sentences and many don't require jail at all.  The Guidelines are made up numbers without any real data to back them up.  I trust judges more than I do the grid. 

--Don't punish defendants for going to trial.  There are too few trials, mostly because the consequences of going to trial versus pleading are way too severe.  Going to trial doesn't mean that every enhancement applies or that variances are off the table.      

--Grant some pretrial motions and require prosecutors to turn over evidence.  I know that judges hate dealing with pretrial motions, especially those dealing with discovery.  But instead of denying them all, it's time to hold prosecutors' feet to the fire a little more.  The feeling out there right now is that each prosecutor decides for him or herself what to turn over and when and that judges aren't going to get involved.  It's also OK to throw out counts (yes, prosecutors overcharge) or to sever a case or to give teeth to any of the other Rules of Criminal Procedure.

--Grant motions to suppress when the officer is lying.  This goes to the NY Times article and Dershowitz's rules.

A big part of all of this goes to the court of appeals.  The 11th Circuit rules for the government even more than the district court does.  This has been the culture for a long time.  (When is the last time the court reversed a sentence within or above the guidelines?) But there is new blood on the 11th.  And three new open spots (two now, and one more this summer) will really change the court.

See what happens when there is a blackout during the Super Bowl.  The game is now back on, so I'll get off the soapbox. 

6 comments:

Anonymous said...

SO you expect judges who view their dockets as extremely overloaded to do things that will add to that load? I don't think so. But I like your naive optimism.

Anonymous said...

Any time anyone talks in sweeping generalizations like "All Judges," . . . "All prosecutors" ... "All cops" . . . I would express some healthy (and necessary) skepticism. I like The Dersh but he has a proclivity for hyperbole.

Bob Becerra said...

Ultimately, the only barrier to unbridled executive power, including that of law enforcement, is an active and courageous judiciary.

Donald Sheldon said...

Donald Sheldon
Libertarian Party Chairman
Broward County Florida.

Thank goodness for the "lights out at the Supper Bowl" High time the Barr started to acknowledge some of the horror that is our current "criminal justice system". The very idea that cops lie to convict and prosecutors and judges give it a wink and a nod is so outrageous that society needs to be alerted and change MUST FOLLOW.

Punishment for going to trial is also completely unacceptable. Come on Barr Association! What are you thinking or are you thinking at all? Have we simply become numb to any outrage over words like "Fairness" and "Justice"?

The "War on Drugs" seems to have eliminated the "Speedy trial" and the whole "Bill of Rights" from the Constitution in the Federal Court especially for young minorities. Attorney "Have you no shame"? What have we allowed ourselves to become as a society? Are we a Nation of LAW? and we have gone to sleep passing so many laws that we simply ignore or worse enforce separately and with predigest and/or complete randomness.

Donald Sheldon said...

Donald Sheldon
Libertarian Party Chairman
Broward County Florida.

Thank goodness for the "lights out at the Supper Bowl" High time the Barr started to acknowledge some of the horror that is our current "criminal justice system". The very idea that cops lie to convict and prosecutors and judges give it a wink and a nod is so outrageous that society needs to be alerted and change MUST FOLLOW.

Punishment for going to trial is also completely unacceptable. Come on Barr Association! What are you thinking or are you thinking at all? Have we simply become numb to any outrage over words like "Fairness" and "Justice"?

The "War on Drugs" seems to have eliminated the "Speedy trial" and the whole "Bill of Rights" from the Constitution in the Federal Court especially for young minorities. Attorney "Have you no shame"? What have we allowed ourselves to become as a society? Are we a Nation of LAW? and we have gone to sleep passing so many laws that we simply ignore or worse enforce separately and with predigest and/or complete randomness.

Anonymous said...

It is beyond disturbing to know so many realize and subscribe to all of this. I have read over and over the gaping differences in sentencing for those who plea out versus those who fight for their lives and innocence. It is as if people are simply punished for enabling the justice system participants to actually do the very job they were hired by taxpayers dollars (some of which the accused/convicted contributed toward) to do. Coupled with the Grand Jury circus/master of ceremonies shenanigans, and the potential lack of funds due to seizure of assets, how is any of this system fair to someone in the potential hot seat? These are people's lives.