We all think railroading good people into prison takes place in other far away countries – Iran, Russia, China, but here we have justice and get to the bottom of things. But some very recent examples illustrate the weaknesses of our system.
The latest twist in Banks v. Dretke, after the U.S. Supreme Court rebuked a prosecutor for hiding evidence, is the same prosecutor just announced that he is going make sure the defendant gets the death penalty, instead of a new trial.
In Connick v. Thompson, even though a Louisiana prosecutor deliberately hid evidence that robbed another defendant of decades of his life, the U.S. Supreme Court has just decided that there is no penalty for prosecutorial misbehavior.
In the Troy Davis case, most of the witnesses recanted their testimony but Georgia is about to execute the anyway.
In Hurrell-Harring v. New York an appellate court just held that a class action was proper in a case challenging the failure of this state to provide proper counsel so that defendants might be able to show the courts their innocence.
Justice, real justice costs money. But the cheap version is very expensive too; it makes us all vulnerable to the authorities and vulnerable to the real criminals they didn’t find. And for our tough-on-crime judges, almost anything goes in the name of convictions.
The dirty secret is that our system is based on bribery. Of course there is a law against bribing a witness. But the courts have decided that law is only for defense counsel. A few years ago a very courageous federal appellate panel out west called bribery “bribery” when a prosecutor offers benefits in exchange for testimony leading to a conviction. That was U.S. v. Singleton, but the full Court of Appeals pulled the panel opinion out of the records, hid the fact that some of their courageous brethren objected to the bribery of witnesses.
In reality the more notorious the crime, the more likely someone will successfully finger someone else. The prosecutor says we won’t prosecute you for the things we’ve caught you at if you’ll just bring us incriminating evidence on so-and-so. Then they swear to the court that they’re telling the whole truth, and either deny that the prosecutor did anything for them, as in the Banks case, or claim that what the prosecutor has done for them hasn’t influenced them a bit, so the jury should believe them. That’s the string of stings against Muslim clerics that the government has been trying to impress the public with. It’s that kind of [quote] “reliable” testimony that results in so many false convictions that lawyers struggle to overturn. Without some crucial piece of DNA evidence, good luck. Because, as in the Troy Davis case, when the same people that the prosecutor vouched for, when the same people testify that they lied at the previous trial, the prosecutor tells the court it shouldn’t believe them because now they aren’t being paid.
You need to understand what those “tough-on-crime” judges are doing. Like the U.S. Supreme Court when it says innocence doesn’t necessarily matter and prosecutors aren’t liable for concealing evidence and throwing away decades of someone’s life – that is, if they weren’t executed. Judges like Scalia and Thomas are so “tough-on-crime” they don’t seem to care about the most fundamental kind of freedom – freedom to walk around as a free man.
— This commentary was broadcast on WAMC Northeast Report, May 10, 2011.