Judge Kozinski: There's Very Little Justice In Our So-Called 'Justice System'

from the overrun-by-perverts-and-their-incentives dept

Judge Alex Kozinski has long been one of the few judges willing to speak up against our nation’s thoroughly corrupted justice system. It’s not the normal form of corruption, where juries and judges are openly bought and sold. It’s corrupted, as in bastardized. Or debased. What was set up to provide citizens with a fighting chance against accusations brought by those with vastly more power has instead become exactly the sort of system these checks and balances were meant to prevent. In many cases, prosecutions more resemble railroading than actual due process.

A few years back, Kozinski pointed out one of these contributing factors to this corruption: the deliberate withholding of exonerating evidence from defense lawyers.

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

This is the damning opening sentence of his dissent in a case where the government pursued a “thoughtcrime” prosecution. At the center of it were Google searches the government claimed supported its accusations that the accused had intended to use the ricin he’d developed in his lab as a biological weapon. Along the way, actual physical evidence was mishandled by investigators, leading to an investigation of the police lab — an investigation that was never disclosed to the defense team. But the panel let the prosecution walk away from its misdeeds and Kozinski called them out for it.

The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it’s best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here. A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence.

Due to the nature of a Brady violation, it’s highly unlikely wrongdoing will ever come to light in the first place. This creates a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice. In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset.

Professional discipline is rare, and violations seldom give rise to liability for money damages. Criminal liability for causing an innocent man to lose decades of his life behind bars is practically unheard of. If the violation is found to be material (a standard that will almost never be met under the panel’s construction), the prosecution gets a do-over, making it no worse off than if it had disclosed the evidence in the first place.

He has now published a new paper that attacks the weaknesses of the system, point-by-point, starting off with a harrowing opening paragraph:

Though we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial. Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

Kozinski points to several false assumptions jurors (and judges) make — unfounded beliefs that have been encouraged over the years by law enforcement and prosecutors.

The government tells us that eyewitnesses (at least, its eyewitnesses) are reliable. Any person with two eyes who can “corroborate” the prosecution’s narrative is treated as somewhere between George Washington and Jesus Christ in terms of reliability and honesty. (This deference suddenly disappears when the defense introduces its eyewitnesses. This hypocrisy extends to confidential informants — criminals whose honesty is always questioned by law enforcement unless their statements help them advance their investigations, in which case they’re suddenly upstanding citizens wholly unmotivated by the desire to remain unincarcerated.)

This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races… In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases… Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Other long-held assumptions are equally questionable. Every juror who has ever watched a TV crime procedural is having his or her head filled with questionable assertions about the trustworthiness of certain forms of evidence. This would be fine if it were limited to fictional representations of police work. But it isn’t. Prosecutors and courts remain equally credulous of this evidence, even after multiple issues with both have proven them more fallible than they’re portrayed.

Identifying fingerprints taken in controlled situations (i.e., bookings) can provide fairly decent ID matches. But those recovered in the field — latent prints found at crime scenes — are far less accurate. The same goes for DNA. While it can provide very close matches in controlled situations, most DNA evidence is recovered in less-than-ideal circumstances, and is far too often subject to speculative conclusions that are often guided by what investigators want to find, rather than what they’ve actually found. Just because a method is “scientific” doesn’t mean it isn’t subject to bias.

DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest. As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.

The same goes for almost every piece of forensic evidence the public and the courts have long accepted as being near-infallible.

Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).

Far too often, these forensic methods are treated as incorruptible science when they’re actually far from it.

Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.

And so it goes. A calamity of errors. A full-blown catastrophe masquerading as an equitable system. Human memories are particularly fallible but human testimony under oath is considered sacrosanct. Judges act as though juries are decent human beings who will follow specific instructions, rather than act like ordinary human beings and act on their preconceptions and biases instead. Prosecutors will supposedly follow the rules, even though they’re working from a supposed disadvantage (the presumption of innocence), rather than do whatever they can to rack up another “win.”

And the “presumption of innocence” is a joke. Far too many people still believe an indictment is an indicator of guilt. Defense lawyers are actually the ones working uphill, because the presumption of innocence is the ideal, rather than the baseline. “Beyond a reasonable doubt” isn’t much of a hurdle when jurors (and even some judges) view the accused as guilty before anyone even starts presenting evidence.

Human minds are terrible things and yet the justice system continues to operate on the fallacy that they’re efficient machines capable of determining innocence or guilt. Kozinski points out that something as far removed from the verdict as the opening statement can influence the entire trial.

Even more troubling are doubts raised by psychological research showing that “whoever makes the first assertion about something has a large advantage over everyone who denies it later.” The tendency is more pronounced for older people than for younger ones, and increases the longer the time-lapse between assertion and denial. So is it better to stand mute rather than deny an accusation? Apparently not, because “when accusations or assertions are met with silence, they are more likely to feel true.”

To the extent this psychological research is applicable to trials, it tends to refute the notion that the prosecution pulls the heavy oar in criminal cases. We believe that it does because we assume juries go about deciding cases by accurately remembering all the testimony and weighing each piece of evidence in a linear fashion, selecting which to believe based on assessment of its credibility or plausibility. The reality may be quite different. It may be that jurors start forming a mental picture of the events in question as soon as they first hear about them from the prosecution witnesses. Later-introduced evidence, even if pointing in the opposite direction, may not be capable of fundamentally altering that picture and may, in fact, reinforce it. And the effect may be worse the longer the prosecution’s case lasts and, thus, the longer it takes to bring the contrary evidence before the jury.

Trials in general, and longer trials in particular, may be heavily loaded in favor of whichever party gets to present its case first—the prosecution in a criminal case and the plaintiff in a civil case. If this is so, it substantially undermines the notion that we seldom convict an innocent man because guilt must be proven to a sufficient certainty.

So, the system is broken. And there is no easy remedy. The problem can only be made worse, if the system continues to operate as it has been. And every “tough on crime” initiative only adds to the flaws. Take mandatory sentencing, for example. What is meant to curb future criminal activity has really only insured that the government can wrongfully imprison innocent people for longer periods of time. Every exoneration stemming from these multiple systemic flaws is treated dismissively as some sort of fluke. Even as more evidence mounts that the system is openly abused, the level of credulity granted the abusers has remained relatively steady. And if you’re wrongfully imprisoned, you’re pretty much screwed. The logistical and legal obstacles standing between you and a reexamination of your case are close to insurmountable.

To begin with, they are in prison and thus unable to pursue leads the police might have missed; they have to rely on someone on the outside to do it, and that’s often difficult or impossible to accomplish. A prisoner’s access even to his counsel is severely restricted once he’s incarcerated. A loyal friend or relative might do it, but friends and even relatives often abandon defendants who are convicted, no matter how much they may protest their innocence. A few prisoners may obtain the help of an innocence project, but the work is labor-intensive, resources are scarce and manpower is limited, so innocence projects engage in triage, focusing on the most promising cases. Of course, it’s often difficult to tell whether a case is promising until you look closely at it, so a promising case can easily be overlooked.

But the biggest problem is that new evidence is hard—and often impossible—to find. If it’s a physical crime, police secure the crime scene and seize anything that looks like it could be relevant. The chance of going back years later and picking up new clues is vanishingly small. The trick then is to get whatever evidence the police have, assuming they didn’t destroy it or release it once it was clear that it wouldn’t be used at trial. If the crime is non-physical, such as fraud, child pornography or computer hacking, the police seize all the relevant computers, hard drives and paper records (including any exculpatory evidence the suspect may have there) and may well discard them after the conviction becomes final…

I think it’s fair to assume—though there is no way of knowing—that the number of exculpations in recent years understates the actual number of innocent prisoners by an order, and probably two orders, of magnitude.

Kozinski doesn’t just offer up problems, though. He has a long list of suggested solutions. Juries need to be handled better throughout the course of the case, rather than mostly ignored until it’s time to reach a verdict. Jury instructions should be clear, concise and in print. Jurors should be allowed to take notes and discuss the trial with other jurors while the case is ongoing.

Prosecutors should be subject to open file discovery. Every police interrogation should be video recorded. Eyewitness testimony needs to face more scrutiny and to be subjected to standardized examination. The same goes for other evidence entered by the prosecution. The government should start funding “Integrity Units” — independent bodies that examine questionable convictions, as well as questionable prosecutorial behavior.

Prosecutors should be held to new Brady (exculpatory evidence) standards to ensure all possible info makes its way to the defense. This needs to be followed up by the deployment of sanctions and meaningful punishments for violations. The first good faith effort the government can make is to strip away the secrecy surrounding accusations of prosecutorial misconduct and allow the public to see which of its public officials are abusing an already-badly abused system. Along with this, prosecutorial immunity protections need to be scaled back severely. In addition, Kozinski proposes treating prosecutorial misconduct as a civil rights violation, which would open these offices up to DOJ investigations and consent agreements, as well as give the wrongly-accused a more efficient route to redress their grievances.

Another way to ensure the justice system serves the public rather than itself is to remove the process of electing judges. Incumbent legislators have done very little to ensure they leave their office in better shape than when they first arrived. The same goes for judges, who can often turn a little public support into a lifelong career of playing to the crowd, rather than ensuring justice is done.

The system is broken. I’m not sure it can even be fixed. But some of its worse aspects can be mitigated. I do appreciate the fact that someone inside the system is willing to not only point out its extensive flaws, but also offer guidance on how it can be improved. What we really haven’t seen though is someone from the prosecutorial end call out colleagues for their ritualistic abuse of the system, and I think that needs to happen before we start to see any meaningful improvements. And that’s almost impossible to do in an area where you’re only as good as your conviction rate.

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Comments on “Judge Kozinski: There's Very Little Justice In Our So-Called 'Justice System'”

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66 Comments
Anonymous Coward says:

Kozinski

This is the shooting video Gardena police didn’t want you to see”, by Brittny Mejia, Richard Winton and Joel Rubin, Los Angeles Times, July 15, 2015

 . . . The city then filed an emergency motion with the 9th Circuit Court of Appeals, asking it to intervene.

The Times, meanwhile, received copies of the videos from court officials. After The Times published the videos online, 9th Circuit Judge Alex Kozinski issued an order that “the police car camera video footage shall remain under seal pending further order of this court.” . . .

(H/T Tim Cushing @ Techdirt)

JoeCool (profile) says:

Re: Kozinski

He’s not perfect by any means, but Kozinski tends to be right more often than not. Tech Dirt will call anyone out who does something boneheaded, even if they normally think more of the guy. TD also points out when they do something right that is important, even if they normally think LESS of the person, as well.

Anonymous Coward says:

Re: Re: Kozinski

It’s not about what Kozinski thinks when he’s off writing in some obscure law journal.

It’s about what Kozinski actually does when he has power.

Legal Theory Lexicon 005: Holdings (Larry Solum)

The Realist Theory of Holdings. Legal realists have a very different theory of what constitutes a holding. Here is one way of getting at it. Legal realists view holdings as predictions of what future courts will do. The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases. . . .

Whenever you’re listening to an appellate judge, first ignore all the patter, and focus on what the court has ordered. After you understand the procedural context, and what the court has done in that context, then you can back off and pay attention to the judge’s stated reasoning. But first figure out what the court is actually doing.

That goes whenever you’re listening to an appellate judge. Whenever. Especially when the judge is not actually issuing orders.

‘Cause judges say all sorts of shit all the time. A lot of it, they don’t really mean, they’re just saying.

Anonymous Coward says:

How about evidence from computers that are wide open

With constant reminders about how millions of computers have been compromised by criminals, our government, other governments, and the rest of the worlds hacker community, when will defense attorneys start to bring up the fact that computers are no longer “under our complete control”.

If you didnt know that 1/2 a million people had a key to your house, there would be reasonable doubt that all the items in your house were yours or put there by you.

That should start to apply to your computer systems also.

Roger Strong (profile) says:

Re: How about evidence from computers that are wide open

The importance of this will be ratcheted up at the end of the month when Windows 10 rolls out. When you share your Wi-Fi key with your friends, Windows will cheerfully share it with your friends’ friends. That includes their Outlook.com/Hotmail contacts, Skype contacts and Facebook friends.

In an attempt to address the security hole it has created, Microsoft offers a kludge of a workaround: you must add _optout to the SSID (the name of your network) to prevent it from working with Wi-Fi Sense.

(So if you want to opt out of Google Maps and Wi-Fi Sense at the same time, you must change your SSID of, say, myhouse to myhouse_optout_nomap. Technology is great.)

Microsoft enables Windows 10’s Wi-Fi Sense by default if it is a clean install of the operating system, and if it is a particular edition. If the feature is fully enabled, access to password-protected networks is shared with a person’s contacts if that user checks a box when they first connect to a network.

John85851 (profile) says:

Re: Re: Re: How about evidence from computers that are wide open

The average TechDirt reader responds: That’s a brilliant work around. Thanks for the code.

The average Windows 10 home user: What’s a dollar sign doing in front of the word echo? Do I type this into Word or Google? Honey, just call your 12 year-old nephew to see if he can make sense of this.

Quiet Lurcker says:

Re: Re: Re:3 How about evidence from computers that are wide open

Windows moved away from the command prompt about 3 – no, 4; 10 is supposedly coming out soon – iterations ago. Along about the time of XP, as memory serves.

Also, Windows doesn’t ship with grep (or a non-root user prompt, now I think about it); never has, likely never will. However, install the correct (open-source, therefore no-cost) software, and you’re laughing.

Roger Strong (profile) says:

Re: Re: Re:4 How about evidence from computers that are wide open

The command prompt is still there in every version of Windows and even has some welcome enhancements in Windows 10. Windows 10 also comes with the more powerful PowerShell found in recent Server editions.

Command prompt runs as non-root for non-root users. For some functions like registering a DLL, you need to be an administrator. Or you can right-click on Command Prompt, select “Run as Administrator”, and authenticate.

While PowerShell doesn’t have grep – it’s running on a different OS – it has commands like SelectString that provide the same functionality.

The point made above still stands. Very few users could be expected to know this.

tqk (profile) says:

Re: Re: Re:7 How about evidence from computers that are wide open

Windows sucks

Yet is still better than Linux.

Better than Linux at being a malware magnet. Better than Linux at being instantly owned upon being connected to the net. Better than Linux at running craptastic, broken at sale third party software.

I can’t believe people still defend Windows(TM) after two decades of its consistent, continued abuse. You’re masochists.

“Mouse movement detected, therefore rebooting.”

MrTroy (profile) says:

Re: Re: Re:8 How about evidence from computers that are wide open

Apologies for jumping in late, but I can’t believe that people still attack Windows(TM) after two decades of improvement from Microsoft in handling security issues, and two worsening track records from everyone else.

http://www.gfi.com/blog/most-vulnerable-operating-systems-and-applications-in-2014/

Yeah, I mean it’s fun and all to pile on, but don’t confuse rhetoric and allegory for facts.

nasch (profile) says:

Re: Re: Re:9 How about evidence from computers that are wide open

Apologies for jumping in late, but I can’t believe that people still attack Windows(TM)…

Just so you know, it looks very shill-ish to put “(TM)” after a product name in a comment. Nobody does that in normal written conversations, so it makes it look like you’re getting paid to write this.

MrTroy (profile) says:

Re: Re: Re:10 How about evidence from computers that are wide open

Just so you know, it looks very shill-ish to put “(TM)” after a product name in a comment

Yeah, I’ll pay that. I was just copying how the parent comment referred to the software in question (which was obviously not shilling, due to its content), but that wouldn’t come across in the email notification.

tqk (profile) says:

Re: Re: Re:9 How about evidence from computers that are wide open

Yeah, I mean it’s fun and all to pile on, but don’t confuse rhetoric and allegory for facts.

Okay. From your linked article:

“It is interesting that although Microsoft operating systems still have a considerable number of vulnerabilities, they are no longer in the top 3.”

Yeah, when you have the categories “Apple Mac OSX”, “Apple iOS”, “Linux Kernel”, then Windows(TM) split into seven separate categories, any individual flavor of Windows(TM) is going to not end up in the top three. Quel surprise. Added up, those seven categories of Windows(TM) total (“HIGH vulnerabilities”) == 168, which kind of blows the doors off the others’ paltry 64, 32, and 24 respectively. It’s a bit astonishing that Microsoft has managed to pull this off for this long, but I suppose ignorant (uneducated, non-technically minded) users are a lucrative gravy train still, and Microsoft(TM) were smart to find a way to tap into that huge pool of innocent suckers. I can’t be bothered to read the rest of the article.

I’ve been running Linux (numerous versions/”Distros”) on my personal boxes, and working with clients’ & employers’ Unix and Linux boxes since ’93. I never need to buy third party add-on software (Debian alone offers ca. 30k you can choose from for free), I don’t need to run a firewall on my personal machine, half my machines’ CPU isn’t sucked away immediately by “anti-virus” programs (snakeoil!), and I’ve no trouble using it (nor them with me) working with Windows(TM) or Apple users.

Windows(TM) users are masochists. But, have fun. Whatever floats your boat. It’s no skin off my nose.

nasch (profile) says:

Re: Re: Re:10 How about evidence from computers that are wide open

Added up, those seven categories of Windows(TM) total (“HIGH vulnerabilities”) == 168, which kind of blows the doors off the others’ paltry 64, 32, and 24 respectively.

Here’s what he says about that:

If we had to group the different Windows versions under one entry the statistics would look like this:

Windows

68 total vulnerabilities 47 high severity20 medium severity 1 low severity

As you can see a lot of Windows vulnerabilities apply to multiple Windows versions and because of that there is not a huge difference between the number for the entire Windows operating systems family and the numbers for different Windows versions.

So if accurate, that would put Windows as a whole in second place behind OS X, which is surprising. NIST presumably has no axe to grind and I have no reason to doubt their numbers, but I didn’t look into how the blog author consolidated the Windows vulnerabilities.

IE has more high vulnerabilities than Chrome and Firefox combined though.

Gwiz (profile) says:

Re: Re: Re:10 How about evidence from computers that are wide open

Yeah, when you have the categories “Apple Mac OSX”, “Apple iOS”, “Linux Kernel”, then Windows(TM) split into seven separate categories, any individual flavor of Windows(TM) is going to not end up in the top three.

I agree. That article manipulates those figures drastically so that Microsoft seems to look better that it really is.

If they are going to break Windows down into release versions, why didn’t they break down “Linux kernel” into the individual distos and release versions? Each one of those would probably only show none or, at most, a couple of instances. Not breaking the Apple OS into versions is also disingenuous.

MrTroy (profile) says:

Re: Re: Re:12 How about evidence from computers that are wide open

And even the high/medium/low breakdown of vulnerabilities doesn’t really give enough information to compare the “security” of the operating systems, truly – which vulnerabilities are remote, which require shell access, which require particular software to be installed to access the bug?

The point of posting was mostly to just derail the mindless nature of the “Windows bad, Linux gud” debate, and turn it into a more reasoned discussion – every modern OS is far too complex to be completely confident of its security, and most server OSes run far too much third party services to believe that all of them are secure.

Up-to-date, well configured Windows servers are just as secure as up-to-date, well configured Linux servers – they are both difficult to hack, and neither is impossible to hack. Both are capable of running services that drop effective security to zero, and sometimes businesses mandate use of such software for reasons that the IT department is unable to overcome.

I’m not sure if up-to-date well configured Linux desktops are more secure than up-to-date well configured Windows desktops, but I suspect the former are more common… but that’s more to do with clueless users being more common on Windows platforms than Linux platforms. If everyone were to suddenly switch to Linux as their primary operating system, I very much doubt we’d see any reduction in home computer hacking, botnets or otherwise.

http://arstechnica.com/security/2014/10/reddit-powered-botnet-infected-thousands-of-macs-worldwide/

Yes, Windows XP is the most common operating system found in botnets today; it’s also 14 years old. How many security vulnerabilities do you think still exist in RedHat 7.2, using the 2.4.7-10 kernel?

For me? I use Windows at home, Linux at work. I’ve tried installing Linux occasionally at home, but it just doesn’t work for me. I know how to use and maintain a Windows system, but I only know how to use a Linux system, so for me Windows is actually the more secure route. YMMV.

Gwiz (profile) says:

Re: Re: Re:13 How about evidence from computers that are wide open

If everyone were to suddenly switch to Linux as their primary operating system, I very much doubt we’d see any reduction in home computer hacking, botnets or otherwise.

I would agree with that statement, but in addition to outside threats, I also am concerned about nefarious activity and tracking that is possible using a closed-source OS controlled by a profit-driven corporation. I’m not, by any means, saying that open-source is impervious to similar activity, just that it’s inherently more resistant to it.

Gwiz (profile) says:

Re: Re: Re:7 How about evidence from computers that are wide open

Yet is still better than Linux.

Curious as to why you think Windows is better than Linux?

I migrated my personal laptop to Linux years ago and never looked back. I haven’t needed to boot to the Windows partition for years except to test exe’s I had written in Pelles C running under Wine.

jim says:

Re: Re: Re: How about evidence from computers that are wide open

It’s, not just your neighbors, but, evidence can be misinterpreted by any investigator. Even if you use Linux, or apple, if the computer is encrypted, you have to release the key to the good guys. Or reformat real fast. Another real cute one, is to refuse them access till you can get some third party to image the drive.

Roger Strong (profile) says:

Re: Re: Re:2 How about evidence from computers that are wide open

That fast reformat will only make things much, much worse for you.

In the case of an RIAA lawsuit – a court order directing the defendant to produce her computer’s hard drive for inspection – erasing it led to a default judgment against the defendant. And it could have led to obstruction of justice or contempt of court charges.

But it’s worse than that: You can also be charged with a felony under Sarbanes-Oxley for destroying evidence, if you so much as clear your browser or defrag your hard drive.

No, you don’t have to be in the financial sector. Prosecutors are using Sarbanes-Oxley to stack charges against everyone else now. “The law forbids the destruction of evidence, regardless of personal knowledge of ongoing investigations, or even if no investigation has even commenced.”

Praedor says:

Re: How about evidence from computers that are wide open

The negative side effect of that would be to give child porno pervs a way out: simply ensure they install a trojan or backdoor on their computer before they start sucking in the nasty so they can claim, “It wasn’t me! It was obviously a hacker! See? My system is compromised and I never knew it!”

JP Jones (profile) says:

Re: Re:

This strongly applies to our understanding of economics as well. Any time an economic theory begins with the assumption that humans will act purely in a rational, self-interested manner you may safely assume the any experimental results from said theory will result in near-random events.

After all, according to some leading economists, economic bubbles don’t exist. This is why people don’t take justice or economics seriously…when you come from a fundamentally flawed assumption how can your conclusions be accurate?

Ninja (profile) says:

Nothing that we don’t know already (at least in this site) but it’s refreshing to see such eminent person expressing it in such a clear and concise manner. The major flaw/obstacle here is that the system needs to be reformed by those who run and benefit from it. So we fall back to the same issue that plagues all three powers: change must come from the inside. So unless people suddenly wake up and replace everybody with their votes and start closely scrutinizing what’s done there’s little chance anything will change. Heck, even if we vote everybody out there’s no guarantee that the system as it is now won’t sustain itself in the future.

tqk (profile) says:

Re: Re: Re:

Jury Nullification, too. It only takes one juror in many cases.

That game’s rigged too. Unless you’re Henry Fonda in Twelve Angry Men and manage to change the other jury members’ minds, you just get a hung jury and a new trial in front of a new jury, instead of a finding of Not Guilty. Double jeopardy doesn’t apply.

The monster wants its flesh, and it will find a way to get it regardless of what anyone else wants.

All that’s beside the fact that anyone even alluding to jury nullification will be booted by the judge ASAP.

Anon says:

Re: Re: Re:

>>Jury Nullification, too. It only takes one juror in many cases.

>Be the cynic. Don’t take either side at face value. It’s supposed to be an adversarial process where both parties are subject to scrutiny, and the defense should have the benefit of any doubt.

Don’t forget though, depending on how you argue – a juror can slip the judge a note, and the judge can decide you are being deliberately obstructive and ignoring the law for arguing nullification. And toss you off the jury. And they proceed with 11 jurors.

And… it’s very unlikely anyone gets to second-guess the judge’s call.

Anonymous Coward says:

More Kozinski

Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In ‘Innocence Of Muslims’”, by Mike Masnick, Techdirt, May 18, 2015

 . . . And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:

The takedown order was unwarranted and incorrect as a matter of law . . .

 . . . All in all, while it’s ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.

David says:

Don't forget the Reid technique, too...

Where the suspect is constantly subjects to two possibilities of really guiltly and maybe a little guilty in order to get false confessions, where the actual facts are the unspoken third possibility of not guilty at all.

After enough questioning, it’s been shown you can actually get people to admit guilt to something they didn’t have anything to do with.

Anonymous Coward says:

Point of Fact

I appreciate his stance, and normally i hate nitpicking hypotheticals and analogies but this is kind of important.

“It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.”

It is possible for an eunuch to be guilty of rape. Limiting our understanding of rape to traditional forcible penis-in-vagina violations is a hindrance to justice. Bad choice of words.

Anonymous Coward says:

Re: Point of Fact

I appreciate his stance, and normally i hate nitpicking hypotheticals and analogies but this is kind of important.

Judge Kozinski is writing here in the Georgetown Law Journal Annual Review of Criminal Procedure, fer pete’s sake. It is an academic law journal. It is entirely hypothetical! It is essentially meaningless.

If you want to read a Kozinski stance that counts, read his writing for the Ninth Circuit.

Or read his resignation letter—if his conscience pangs him enough to stop him from doing the job anymore.

Wyrm (profile) says:

Ghost jurors

The main point that always amazed me was how jurors are nearly completely ignored in a trial.
– They are supposed to stay silent until the very end, then decide on guilt or innocence based other people’s questions and answers.
– They are supposed to be emotionless, unbiased and impartial.
– They are supposed to conveniently forget whatever was not done “by the rules”.

The first point in particular annoys me the most.
If jurors have questions about a given point, they can’t press on the matter. They can only hope someone (prosecution or defense attorney) will raise the same questions. All this despite the fact that they are the one supposed to make a decision in the end. I didn’t know the can’t take note either and that doesn’t help: are they supposed to remember every little detail? Or trust only prosecution and defense notes? (which is as bad)

There are trials without jury, but any trial with a jury definitely suffers from lots of flaws. I never understood the concept of having a few people forced to silence then to decide on a life-or-death situation.

coward (anon) says:

Re: Ghost jurors

Even worse is when the court has decided that certain facts can not be brought up or questioned during the trial. I was on a jury where the defendant claimed that anyone in his house could have been driving his car to commit the crime. The jury wasn’t allowed to know that he was the only person in the household that knew how to drive. The jury found out because the prosecutor (who hadn’t seen the case before showing up to court that morning) asked the question and was shut down by the judge. The jury was instructed to “ignore that information”. As if.

JoeCool (profile) says:

Re: Ghost jurors

Actually, many courts do allow jurors to take notes. The last time I got picked for jury duty, the court not only allowed us to take notes, but provided a notebook and pen. The main limitations were – no taking the notebooks out of the courthouse, no discussing the case, and turning in the notebook at the conclusion of the trial.

Not being allowed to DIRECTLY ask questions seems like a good idea given many of the folks I’ve seen on juries, but being allowed to pose questions of the prosecutor should be acceptable. The only questions we were allowed to ask had to do with specific questions of law… which the average juror won’t because they aren’t lawyers.

sigalrm (profile) says:

Re: Re: Ghost jurors

For the first (and quite probably last) jury that I was on, The judge encouraged us to take notes, and the jury was allowed to submit written questions to the judge at any time during the trial, who could then determine if they would be asked of the prosecution and defense lawyers, and potentially witnesses. We received specific instructions about how to submit questions from the judge prior to the start of the trial.

3 or 4 of us did so over the course of a 9-ish day trial. That was 12, 13 years ago in Maricopa County Superior Court. I have no idea if the rule is still in effect, but the answers to my questions definitely had an impact with respect to how I voted on one of the counts in front of us.

Also, once we got into deliberations, the jury was able to request evidence submitted by both sides for further up close and hands on inspection for discussion without the judge or lawyers present. We requested and were allowed to inspect and discuss without the judge or lawyers present.

It was a good model. No idea if its still in place or not. I hope so.

Anonymous Coward says:

Re: Ghost jurors

Actually, while this is the picture as painted, I’ve been on one jury where we wrote a note to the judge, stating that we could not come to a fair decision and would thus have to decide “not guilty” de facto unless we heard further discussion of a bit of testimony. This resulted in a long stretch where the jury was sequestered and the judge, prosecution and defense hammered something out. When we were allowed back in, we were never directly addressed regarding the issue, but the prosecution did grudgingly ask a few questions of the witness along these lines. Not enough to stave off the “not guilty” verdict, but there was at least some feedback happening in the system here.

I think one of the biggest issues with jury trials is that the jurors almost always are at least partially ignorant of the options open to them (ending at jury nullification).

Anon says:

Re: Re: Ghost jurors

Actually, while this is the picture as painted, I’ve been on one jury where we wrote a note to the judge, stating that we could not come to a fair decision and would thus have to decide “not guilty” de facto unless we heard further discussion of a bit of testimony. This resulted in a long stretch where the jury was sequestered and the judge, prosecution and defense hammered something out. When we were allowed back in, we were never directly addressed regarding the issue, but the prosecution did grudgingly ask a few questions of the witness along these lines. Not enough to stave off the “not guilty” verdict, but there was at least some feedback happening in the system here.

>I think one of the biggest issues with jury trials is that the jurors almost always are at least partially ignorant of the options open to them (ending at jury nullification).

The problem is – if the prosecutor failed to produce the evidence sufficient to convict, why should the jury give him a do-over? I sense an obvious mistrial on appeal, and I suspect this was a lot of the argument going on while you waited.

Anonymous Coward says:

True blind Justice

If Justice were truly blind, at the beginning of every trial, the prosecutor and Defense attorneys should have to flip a coin to see who gets which side. This or forcing a prosecutor to have a successful defense case following each case where they act as prosecutor. When you see everyone as guilty right off the bat, the legal system becomes a sentencing system instead.

Anonymous Coward says:

Re: Re: True blind Justice

“How about all lawyers working for the court system be pool lawyers? They walk in each morning, spin the wheel to find out if they are prosecutor, judge or defense, then spin again for the case. They all get paid the same scale, win or lose.”

Are they all getting paid by the same government? If so, then I wonder which side they will work harder for, the government’s or the defendant’s.

FM Hilton (profile) says:

Another point

Prosecutors (and defense lawyers to a large degree) have so little faith in the jury system that they will often offer up on a platter a plea bargain for the defendant, whether or not they actually are convicted of the crime.

“Hey, we’ve got the goods on you, why not just save us all a lot of time and plead out? You’ll be better off for it, and you’d have done the same time as you would have were you convicted by a jury.”

Sometimes the bargain is actually one for a lesser sentence..sometimes it’s more and it becomes apparent when the defendant signs the agreement who actually won the case.

Not them.

Presumption of innocence? Not likely in this instance..

andy says:

human nature !!!

Sadly the courts are so corrupt the only way to resolve any of the issues that desperately need solving is for lawmakers to change the rules and change them in a way to ensure corruption is impossible, but the worst thing is that the lawmakers are corrupt themselves and until the corruption is forcibly removed the DOJ will remain a mockery of justice, nothing more.

Klaus says:

Lyndon B. Johnson

…“when accusations or assertions are met with silence, they are more likely to feel true.”…

Don’t know why but when I read this that old Lyndon B. Johnson quote came to mind…

And his sense of the bizarre knows no bounds, as in this ‘ancient and honourable’ story of how Lyndon Johnson first got elected to Congress in 1948 when his opponent was a wealthy and politically favoured pig farmer: ‘Lyndon was running about 10 points behind, with only nine days to go… He was sunk in despair. He was desperate… he called his equally depressed campaign manager and instructed him to call a press conference at two or two-thirty ( just after lunch on a slow news day) and accuse his high-riding opponent (the pig farmer) of having routine carnal knowledge of his barnyard sows, despite the pleas of his wife and children… His campaign manager was shocked. ‘We can’t say that, Lyndon,’ he said. ‘It’s not true.’ ‘Of course it’s not,’ Johnson barked at him, ‘but let’s make the bastard deny it.’

http://www.the-write-stuff.com.au/archives/vol-1/reviews/hunter.html

Anon says:

Not Even Mentioned -

One of the issues not really mentioned is the practice of overcharging defendants to extort a guilty plea. Plead guilty and get 6 months, or fight the charges and we’ll ask for 35 years” – sound familiar? As we saw with the fellow who was arrested at 16, held in Rykers for 3 years on non-existent evidence and never brought to trial (and ultimately committed suicide); most of the other inmates told him – “take the plea deal, you’ll get out right away”. Give you an idea what people on the receiving end think of “justice”.

I read somewhere that Britain’s rule is simple – a plea deal is 2/3 of what they will ask as a maximum in court – enough to induce a guilty party to skip the trial, but not so harsh that an innocent person might despair at the risk of losing. THIS is what the USA needs… before we even get to the issue of valid evidence.

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