J' Accuse!!

Orin Kerr was kind enough to recommend the post which immediately precedes this one and send lots of traffic my way. Alaska Blog was also kind enough to point to this post. Skelly posits that it might not be all that long before officers will be able to tell juries about their gut feelings. I think he's overstating the situation for effect (I hope).

In the comments Bruce Hayden asks if I "underestimate how often cops "cheat" just a little bit when they know someone is a perp." In reply I must say that I have had plenty of clients tell me stories which have made me suspicious. More than once I have had people pulled over by a group of officers tell me that one officer told them they were stopped because they had an air freshener and another officer tell them they were pulled over because the light on the license plate was out (the two most popular reasons hereabouts). Does this make me very suspicious that the officers pulled the Defendant over first and came up with a reason later? Sure it does. Can I prove that in court? Not unless an officer says something really dumb on the stand. Since most officers are pretty much professional testifiers that is not likely to happen.

Moreover, for the purposes of the post I assumed officers who were playing the game the way the courts and legislatures allow them to; I was not attempting to address those officers who cross the line. In general my beef is not with the officers. As I've said many a time before, if officers do a pretext stop it's not their fault that this procedure has been sanctioned by the Supreme Court. If the Court had limited officers to the reason for the stop and ruled that any further proactive step violated the 4th Amendment (ie: no dogs or requests to search) the officers would follow that rule. If the State courts stepped up or the Congress or State legislatures stepped in to add protections officers would follow the rules they spelled out. The fact that officers are allowed to use technicalities to violate the constitution is not something I lay at the feet of the officers.

Finally, Steve at ThoughtsOnline replied with a post of his own. It's an interesting read because I suspect that prior to practicing criminal defense I probably would have had thoughts along the same line. However, working in the system has changed my point of view.

To begin, I must correct the impression with which I apparently left Steve. I did not mean that police should be required to run down every single person who could possibly have had something to with a crime. I agree this is not possible. Similar to his O.J. example, I am clearly close enough to the area of the D.C. sniper shootings and have military weapons training - it could have been me. However, the police did not (to my knowledge) waste resources checking me out. The concern is that doors which should have been opened are passed by because of the detective's clarity of vision and certainty of purpose (even though he's wrong).

As for the poor sap who finds himself mistakenly targeted by the officer who 'just knows who is guilty', getting him off is the job of his defense attorney. I'm not an attorney, nor do I play one on TV, but I find it hard to imagine that defendants are convicted on nothing more than "height, weight, (and) weapons training in the Marines".

I hadn't meant for that list to be exhaustive merely illustrative. Still, it probably wouldn't take much more; it definitely wouldn't take a lot more. An angry ex-girlfriend calls crime stoppers and tells them he looks like the guy in the video on the 5 p.m. news. He stopped and tried to cash a check at that bank the day before but couldn't because it wasn't his bank and got angry at the teller. He called in sick to work the day of the robbery (at the bakery on the same street as the bank) but was caught on video tape at a jewelry store 2 blocks away 10 minutes before the robbery. Weak? Sure it is but that doesn't mean I can't see it carried forth to a conviction. I suspect most people who work in the courts have seen cases this weak and weaker yield convictions.

Innuendo carries a lot of weight in the criminal justice system. The most powerful moment in the criminal prosecution is often solely in the hands of the detective: the accusation. It is hard to overestimate the power of accusation which lays in the hands of the officer. From that point onward there is an assumption of guilt which follows the Defendant. Most assuredly, we repeat all the right platitudes about "proof beyond a reasonable doubt" and "innocent until proven guilty." Nevertheless, the reality is that the accusation shrouds the innocence of a Defendant. Why would the charge have been brought if the Defendant didn't do it?

Yes, it is the Defense attorney's job to defend the client. However, you must realize how uneven this contest is. Assume, as in most serious cases, the Defendant is appointed an attorney. If we use the robbery example from the prior post, this means (in Virginia) that the attorney will be paid a maximum of $1,096. After taking a substantial portion of that to pay office rent, utilities, secretary wages, etc. there isn't going to be much to put into the case. And, unless the Defense attorney is independently wealthy he cannot pony up the money for investigators, experts, etc. (I know I cannot). These are at the discretion of the judge and he's not going to hand them out easily. Never mind the fact that the prosecution has an investigator who has been working this case for 3 months (the detective) the Defense is not going to get one unless it can spell out a specific reason (which, if you had it you probably wouldn't need the investigator).

Assume the Defense gets the investigator and he's suspicious that suspect 3 had buried the money in his garden. How does he get it? One of the most powerful tools at the detective's disposal is the search warrant; neither the lawyer nor the investigator have that tool. Unless the investigator breaks the law (trespassing, vandalism, possibly B&E) the Defense gets no closer to proving the truth than it was before (of course all of this assumes 3 is bright enough to not spend the money in the short term or talk to the investigator).

Then comes the day the Defendant has his trial. He walks in and everyone knows he's guilty (guilt by accusation); it's just a matter of whether the prosecutor can prove it. Is that a cynical view of the courtroom? Sure it is. However, it's based upon a reality. All the actors in the courtroom have seen thousands of people flowing through the courtrooms who are guilty, who have been accused properly. While some judges are better at resisting this influence than others it would be asking them to be superhuman if we expected them not to be effected at all. The protection which is supposed to be built into the system for this potential bias is the jury. Jurors will have some bias against the accused, particularly in the more conservative jurisdictions wherein I practice; however, it is not as ingrained and reinforced as it is for those who are in court every day. Unfortunately, because of the probable oversentencing if Client is found guilty, recommending a jury for serious trials in Virginia might be tantamount to malpractice. In any case, no matter what is said in the courtroom, the Defendant is fighting against the assumption of guilt which proceeds from the accusation.

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I am somewhat saddened by what I recognize as an accurate description of the way the public views the criminal justice system found in steve's last paragraph. It's a good description of the "them" phenomenon I've blogged about previously. As long as it is happening to "them" most people don't care about the fact that Whren gives cover to unconstitutional seizures or that Hiibell is a high tech way of making us give our papers to an officer (in the modern era name and date of birth puts all your information at the officer's fingertips). I know that one of the first things I had to get over when I began to practice criminal law was the notion that as US citizens we have this large panoply of rights; we don't. Sad to say, most people don't care.