Malfeasant Prosecution

http://www.law.northwestern.edu/wrongfulconvictions/

http://www.innocenceproject.org/

The United States is famous for being the “land of the free”, but does that title hold true anymore? Has it ever? In this piece I will briefly examine reasons why the first question is a resounding “no” while leaving the second for others to ponder. The reasons for America no longer being entitled to the appellation “land of the free” should be obvious to anyone who pays attention to the news. An administration that runs roughshod over the civil rights and liberties, along with the human dignity of all people, not just its citizens has come into power, and remained in power, despite two elections where the people said “no”. Warrantless eavesdropping, court interference, no-bid pre-selected contracting, illegal war-fighting and violation of national sovereignties are but a few of the legitimate complaints that U.S. citizens, and the world in general, can raise against the idea of a free America. But these are not the issues I will discuss. My point in this transcends administrations and has been developing for more than six administrations.

In the “land of the free” today, the US government has now locked up, incarcerated, imprisoned more of its people than even the totalitarian communist regime of china. This does not include those held at Guantanamo Bay. China currently has a population of 1.322 billion, while the US has only about 302 million, meaning that China is first in the world population, while the US is 1/4th China’s size and ranks third, thanks to the disintegration of the former Russian empire known as the Soviet Union. For many years, about two decades, though the US failed to beat the Chinese in absolute numbers of those incarcerated, it still managed to lock up a larger percentage of the population than anyone since Hitler’s Nazi Germany. There are some misguided individuals who might ascribe this to the effectiveness of American law enforcement and criminology. There are some who have posited that our very freedom encourages people to act in ways that go beyond challenging social mores and terminate in criminal activity. These arguments are specious at best and are generally offered by those who have little knowledge or experience with the American legal system. If this were true then countries with even more permissive drug laws, like Holland and Denmark, would see greater degrees of drug related crime, while countries like Austria, where just about anyone can buy virtually any form of small arm at a schutzenfest would see more gun violence. The problem is not related to our freedoms, nor is it related to the efficiency of our police agencies. The problem, in fact is rooted in the adversarial legal process, the necessity of “wins” by elected officials, the control of evidence by the State, and the malfeasance of those representing the State’s interests in the courts.

Neither the Innocence Project nor the Center for Wrongful Conviction succinctly states the preceding allegation of abuse within our court system, but it becomes apparent that the cases on which they have worked most frequently reflect an abuse of the system itself, and all too often, that abuse is willful on the part of those who are supposed to be serving the public, rather than their own, interest. Both of these fine organizations have led the way in illustrating the errors allowed by our justice system and the apathy, if not outright malfeasance, of the system’s minions towards the rights of the accused and redress for the falsely prosecuted innocent. In far too many cases, the evidence presented at trial was demonstrably proven insufficient to legally bring an indictment, let alone a conviction. Yet, prosecutors pushed their agendas and their allegations, putting innocent men and women in harm’s way, introducing them to the penal system. Quite regularly, both Innocence Project and Wrongful Convictions have been able to secure exoneration for the convicted based solely on evidence available, but suppressed, ignored, or misrepresented, at the time of the trial. In most of these, the evidence did not in any way suggest guilt of the convicted person but, rather, proved innocence; yet, in our remarkable system, prosecutors have found ways to subvert the facts.

Our adversarial trial system allows both sides to present their side of the case, ostensibly to allow jurors or judges to weigh the evidence and make a finding. In the criminal court system, this is perverted by the fact that, most often, the State has the resources to conduct its investigations and gather its evidence, while the Defense is reliant upon the State for all of that information. In far too many cases, this has led to situations where the prosecution carefully chooses its release of discovery. This makes going to trial like unto a poker game wherein the dealer gets to choose the cards he deals. Most defendants are financially unable to supply for themselves the resources necessary to reliably counter the arguments made from the State’s stacked deck.

It has been shown that many convictions in serious crimes result from fabricated evidence, whether false, and frequently solicited, testimony or forced and forged confessions. I have personally seen both of these mechanisms at work. Then, too, there is the miraculous process for discovery of physical evidence. Fingerprints can, and have been, lifted and relocated. Shell casings can be replaced with ones that match the alleged weapon. DNA samples can be switched. Yes, all of this goes on even in the 21st Century in our criminal justice system. Inconvenient evidence, say, non-matching DNA, can accidentally disappear. Alibi witnesses can be “encouraged” to change their story or fail to appear.

In the course of their work, the Innocence Project and the Center for Wrongful Convictions have seen over 10 % of death row cases be overturned. These are capitol cases where the standards of evidence for the prosecution are supposed to be incredibly difficult; yet prosecutors have incredible records of success with them. If the most serious crimes, with the most stringent requirements for proof, are successfully prosecuted to the point that it is later proven, not shown, but proven, the persons convicted are better than ten percent likely to be factually innocent, what then are the percentages for false conviction in lesser crimes? That has not been studied extensively, as of yet, because the stakes are much lower and, usually, the innocent are eventually allowed to continue with their lives. Most often, glad to be free from the penal system, the falsely accused and wrongly convicted get on with their lives despite the millstone of felony conviction suspended from their necks.

The problem, as this writer sees it, is one of accountability. If America is to be truly the “land of the free”, then not one, not one, person, citizen or not, should be allowed to spend any time incarcerated, ever. Abraham Lincoln stated this principle when he said that he would rather see ten guilty men go free than one innocent locked up. Mistakes happen. In the event of mistake, the State must own up and provide adequate and meaningful compensation for those wrongfully incarcerated. By adequate, the compensation must be sufficient to make up for lost wages, all resultant or incidental medical issues must be resolved at the States expense, and, the State must provide a sum sufficient to ensure the successful social re-integration of the wrongly imprisoned. The State, in incarcerating an innocent, does great harm to that person in many ways, and re-adaptation and –integration into society is frequently fiscally prohibitive unless the goal is mere subsistence, which is not fair. By meaningful, the compensation must be sufficiently damaging to public coffers that the State is divested of any interest in the successful, or even attempted, execution of malicious prosecution. Laws amounting to this address the issue of collective responsibility for wrongful prosecutions, but there is a personal responsibility that usually drives the collective responsibility.

That personal responsibility belongs to the judges, prosecutors and police who have corrupted the intent behind the development of our criminal justice system. These people must be held accountable for converting the criminal justice system into a system for personal, social, professional, financial and political advancement. The law currently provides for the punishment of those who seek to debase the system with wrongful, malicious and false prosecutions, but the law, as it stands, has two major problems. The first is that the law’s enforcement is controlled by the very people who have that power of law enforcement. The second problem is that the law itself is usually very weak because of the amount of evidence it requires- usually more than that for a capitol case- and the law is not very stringent in the punishment it imposes. Witnesses who lie (commit perjury) usually face less severe rules for evidence while facing greater punishment than malfeasant prosecutors and police. I believe that the best solution is for a federal law to be enacted that provides for the prosecution of those who participate in wrongful prosecutions. The rules of evidence for such should adhere to the same rather loose standards as those under which the original wrongful prosecution occurred. The punishment, and this is the part that should have the requisite compliance effect, should start, at a minimum, where the wrongly accused and convicted was released. This sentencing for those convicted of prosecutorial misconduct should be without parole. If a prosecutor, judge, police officer, or witness is proven to have offered false or misleading evidence or testimony, or has deliberately ignored or concealed evidence that would have been in the defense’s favor, then that person should not be freed until he or she has served every day that was lost to an innocent by their actions. If the wrongly accused served eighteen years on death row, then so, too, should the person(s) who caused that to happen by their misconduct.

If the reforms listed above were implemented, then I believe America would have taken a step towards again being called “land of the free”.