In my first foray at Simon Fraser University in Vancouver, teaching a course on wrongful convictions, I have had some time to look closely at the field as a whole. One thing I’ve been able to discern is that there is overwhelming interest in the subject, perhaps a result of one’s own experience as a child where helplessness can be nightmarish in the absence of support. Being falsely accused by a teacher or abused by an adult are experiences that the child, now an adult (even an older adult) never forgets. It is imprinted on body, mind and soul; hence there’s a possibility to heal oneself through compassion and empathy for others in a similar situation. Being thrown into prison for a crime one did not commit has got to be agonizing every single day; those people deserve outside support. It can be the difference between life and death.
Another thing I’ve learned is that the legal system itself is flawed in unimaginably numerous ways. Those who run the system, whose living depends on the system, whose self-worth derives from the system might delude themselves into believing in the objectivity of the system. The judge strides into the room and “All rise”, as if God Himself has just appeared on the scene. It would be better to rise after the trial if the judge has proved to be an impartial open-eyed interpreter of the law. Wrongful convictions often derive from judicial prejudice and lack of humility. Prosecutors, police and defense attorneys have roles to play in the drama that unfolds in the courtroom, where defendants are often disregarded even by their own lawyers. The role of attorneys who are more concerned with winning and their reputations and money lose sight of the fact that the real purpose of a courtroom ought to be uncovering the TRUTH, TO WHATEVER POSSIBLE EXTENT, TO ARRIVE AT JUSTICE. HOPEFULLY.
Accompanying wrongful convictions is often a charade. Even defense attorneys, public defenders, come into such trials believing their often indigent defendants are guilty. They discourage the client from pursuing a trial and dutifully offer up a plea bargain: “You say you’re innocent but you might lose at trial with the evidence they have against you. I recommend you take the offer because you might be facing twenty-five years in prison. They will ask for seven years with the possibility of parole.”
“But I’m innocent!”
“Yes, you say so, but you shouldn’t have been hanging around that pool hall late at night anyway. The prosecutor will point to the kinds of friends you have.” And so forth.
The defendant has agreed to plead guilty and will now have a record preventing him or her from getting any decent kind of employment. There is also little recourse for an appeal or even the help of an innocence project. He has falsely confessed but has collaborated in his own destruction.
Why does this kind of thing happen so often? Indigent or youthful clients do not know their legal rights. (Many adults don’t know them either.) Police interrogations can overwhelm suspects. Only five percent of cases go to trial; going to trial invokes disproportionate sentences. For that reason, a youthful defendant choosing to go to trial is the first possible signal of a wrongful conviction. And it must also be said that saving money for the state enhances the reputations of both prosecutors and defense counsel. That reputation can be parlayed into promotions, even judicial appointments wherein the new judge will perpetuate the same system that led to her own promotion. If the system rewards you, then the system, so the reasoning can go, must be a good system.
When attending a trial, you will hear witnesses sworn “to tell the truth, the whole truth, and nothing but the truth, so help you God”. How can a reasonable human being swear to take this oath? Isn’t the proper answer–instead of “I do”–“To the best of my ability?” How can one know the truth from his own perspective? An African proverb: “There are three truths: Your truth, my truth and THE truth.” A witness can only tell his own truth and has no access to the TRUTH on his own. The oath is an anachronism, a result of a mistaken belief that if everyone in the courtroom tells the truth, then the verdict will also be the truth.
Examine the word “Verdict”. As it derives from Latin, it literally mean Speak Truth. A jury’s verdict is therefore true, a priori. This is obviously ridiculous, unless you don’t believe in wrongful convictions, like US Attorney General William Barr. Barr, like so many who have risen in the legal system, has an unfounded but sincere belief that the system must be good, that the law itself is sacred. That’s why he doesn’t believe in wrongful convictions. They go against that idea of the sacred.
The sacred is contained in the oath. “So help you God.” God is in the courtroom regulating the proceedings. When will all people see that the law is a human construct, a tool meant to arrive at truth but often stopping short of the terminal. The verdict is an attempt to arrive at truth.
What does all this mean for the law? In the UK, for over a decade, a separate entity examines questionable convictions relatively soon (not years later) after verdicts are issued. Canada is now looking at such a plan. That is the best possibility of bringing about justice in cases where the signs of wrongful convictions are evident. The police should not investigate the police. Even appeal judges should come from separate jurisdictions. Justice can not be achieved through cronyism.
Our justice is human justice. God does not enter into the courtroom. That belief is nothing more than pretense.
Very well said, Ken. Good to hear about UK and Canada possibly making headway addressing the intransigence of our systems when confronted with the INEVITABLE human errors. But the overall system is self righteous, and thus has so many problems for those, often through just coincidence, who fall into the wrong cross hairs. Just wrong place, wrong time, wrong detective, wrong judge, wrong prosecutor, wrong lawyer. These all inevitably happen, often in combinations, to produce wrongful convictions …and travesties of injustice.