Patterico's Pontifications

12/12/2006

Nonsense by Paul Craig Roberts About the Criminal Justice System

Filed under: Buffoons,Crime,General — Patterico @ 6:49 am



Commenter dchamil sends along a link to one of the biggest pieces of nonsense I have read in ages: this piece by Paul Craig Roberts on the criminal justice system — or as he calls it, the criminal justice (sic) system.

Roberts’s piece is full of lines like this:

Prosecutors routinely withhold exculpatory evidence and suborn perjury.

Nonsense. Can you find isolated examples of this? Yes, just as you can find isolated examples of wrongdoing in any profession, if you look across the country. But the idea that such behavior is “routine” — that is nothing more than the raving of a fanatic. I am constantly turning over to defense attorneys evidence that might be considered exculpatory, and I hear colleagues talk about doing the same, all the time.

In the past judges could give light sentences to people they believed had been wrongfully convicted. But “law and order conservatives” have taken sentencing discretion away from judges. Today prosecutors hold all the cards.

Actually, in the federal system, the trend is in the opposite direction. Judges’ discretion was increased years ago in the case of U.S. v. Koon, and further expanded greatly when the Sentencing Guidelines were essentially declared advisory in a recent Supreme Court case. In my state, certain allegations cannot be stricken by judges, such as enhancements for use of a gun — but these are limited. Judges have discretion to strike strikes in third-strike cases. They have wide and almost unreviewable discretion to reduce “wobbler” charges to misdemeanors. The list goes on.

Roberts closes out his column by taking a couple of cases and telling them from the defense perspective — as though the defense perspective is gospel and proven truth. This is how he manages to use the phrase “unproven accusation” to describe an accusation that was proved to a unanimous jury beyond a reasonable doubt. Roberts even says that the defendant was “framed by the prosecutor with the help of the judge.” If I were the prosecutor, I’d be consulting my lawyer regarding a libel suit.

So, commenter dchamil, what do I think of this piece? Not much. And if I’d never run across this guy before, I would feel confident — on the basis of this piece alone — in advising people never to trust a single thing he says about anything.

27 Responses to “Nonsense by Paul Craig Roberts About the Criminal Justice System”

  1. Roberts is a professional crank. I can’t remember the last column I’ve read of his that wasn’t deranged in one way or another.

    Xrlq (39dc4c)

  2. Roberts is a complete idiot. Don’t take anything he says seriously.

    Polybius (7cd3c5)

  3. But don’t we have to pay special attention to folks with three names; like we do to those with only one name?

    Old Coot (caf903)

  4. Indeed we do, but not in a good way. Cf. Lee Harvey Oswald, Mark David Chapman, Jean-Francois Kerry, John Wayne {Gacy / Bobbitt}, etc.

    Guys with only one name are cool, though.

    Xrlq (f0c970)

  5. John Wilkes Booth. James Earl Ray.

    Which only raises the question, were all these assassins known by all three names to their friends or was that something promoted by the media?

    Anwyn (9b5f79)

  6. John Wayne Gacy. James Earl Jones. You get the picture.

    Matt (725443)

  7. OTOH, we have Madonna, Paris, Hillary and Brittany; an interesting collection.

    Old Coot (caf903)

  8. I think my favorite part of the article was,

    “For example, psychologists and criminologists have established beyond all doubt that eye-witnesses are wrong 50% of the time.”

    Wow! Ha!

    I’ve had defense attorneys decline to take exculpatory evidence (they were getting dismissals, so they were happy.) But exculpatory evidence is always given to the defense.

    I tell all my witnesses to tell the truth; they are not for or against anyone and they are not to try to help one side or the other. They are only to tell the truth. Victims are told to tell the truth, even if embarrassing, even if it hurts the case.

    I once had the spiel with a rookie cop (the cop conversation is slightly different, but not by much; the message is to tell the truth whether good or bad.) Surrounding cops piped up.

    Cop 1: Oh, sorry, I told him to lie. That’s the training at the academy.
    Cop 2: Yeah, yeah, we thought we were supposed to lie. Hey, who has the bloody gloves today?
    Cop 1: I wish someone had told us earlier.
    Cop 2: Tell the truth. That would be weird.

    I bet other prosecutors can hear this conversation and the intonations. I think Paul Craig Roberts would only hear the words.

    There are fair criticisms of the system, but Mr. Roberts appears to lack any working knowledge of it.

    –JRM

    JRM (de6363)

  9. The guy is a bad writer, and probably can’t argue his way out of a paper bag.

    That said, a lot of the things that have him upset about the American criminal justice system truly are serious problems (even if he fails to properly represent what the problems are).

    Among the most serious problems is the prosecutorial plea bargaining system, in which some people are given lower sentences for testifying against others. That process alone is probably a huge contributor to the fact that America’s prison populations are so high (now I’m making unsuported speculative arguments and sounding like the writer in question, so I’ll stop here).

    I hope this article isn’t misused as proof that criticisms of the criminal justice system are unfounded. It’s use should be limited to that for which Patterico expressly posted it — as an example of someone who doesn’t express himself well, and doesn’t raise particularly logical or well-reasoned arguments on anything.

    [You are indeed making unsupported and speculative arguments. Granting leniency or immunity in return for testimony is very rare indeed. In almost 50 trials I’ve never done it even once. To call that a “huge contributor” to the prison population is wrong, and with all due respect, reveals a fundamental ignorance about how the system really works. — P]

    Phil (88ab5b)

  10. The linked article is an overheated rant. Yawn.

    There was a time when I agreed with you about this, Patterico. Then [long story deleted] my wife and I got to experience the mill of “justice” from the inside.

    My wife calls the experience “Kafkaesque”.

    Some of the people in that system are doing good work, and our host sounds like one of those.

    It appears that the system isn’t going to be fixed, because those in charge of fixing it are either a part of the problem or in denial about there being a problem.

    Do not, ever, attempt to explain your actions to a cop. Just ask for a lawyer, and wait for him to translate your English into Legalese. Don’t worry about the cost, it’s far, far cheaper than talking to the cops.

    htom (412a17)

  11. Patterico, I find it surprising that you have never used testimony from accomplices (or others) in return for leniency or immunity in almost 50 trials. From newspaper accounts of trials (particularly for serious offenses) my impression was that this is fairly common (say 10%+).

    [It’s more common in gang murder cases. But I have never to my recollection given leniency or immunity to anyone in a trial. Once a jailhouse informant contacted me with information about a murder case, but he was too untrustworthy and I never used him. — P]

    James B. Shearer (fc887e)

  12. Patterico, the leniency-for-testimony thing probably comes up more in case books and in big drug cases than it does in everyday prosecutorial experience, so I can see where you’re right about that. It was a speculative idea, rather than an argument, which is why I labled it so. I really know next to nothing about the inner workings of criminal justice system other than the horror stories — but they’re scary enough and numerous enough than I know something’s wrong, even if I can’t claim to be an expert on exactly *what* is wrong.

    That said, what is your opinion of the plea bargaining system in general in relation to the number of folks in prison? Do you think that plea bargaining allows us to put more people in jail than we could if we had trials more often? Do you think people plead out to things they didn’t do because it’s less risky than facing a really big charge on something they didn’t do?

    Phil (88ab5b)

  13. Common sense tells me that if we have 95% of our criminal cases closed by plea-bargaining, Mr. Roberts is more right than wrong.

    RJN (e12f22)

  14. 9+11:

    I’ve also done about 50 trials. Number of testimonial agreements I’ve had? Zero. Number of testimonial agreements offered me? Two. Agreements are very rare. (It is a near certainty that before I hit 60 trials, I’ll have one agreement; two cases I have make such agreements attractive.)

    12:
    Do some innocent people plea because of the exposure? Yes. But it isn’t very many; new defense attorneys are often shocked at the number of cases where their primary job is to wheedle, nag, cry, or otherwise cajole the prosecutor into a better deal, because the defense doesn’t exist.

    I suppose sometime in history someone was wearing pants that weren’t theirs or chugged five shots immediately before getting in the car to drive or got the freshly stolen car from a guy named Steve whose address and last name he didn’t know but who was otherwise trustworthy. And those guys are going to plead if they have any sense. So, in the history of mankind? Happens.

    But incentivizing early resolution on all but the most serious cases makes the system work. Prosecutors should think twice (and then a third time) if they’re offering 15 days on a misdemeanor for a four-year post-trial case; maybe that case needs to get kicked loose. I’m sure that somewhere there are offices and people that worry about dismissals. Me, if the case isn’t righteous (sure, victim of car theft, you gave her your pants and the car out of charity) it’s gone. Most prosecutors act similarly.

    –JRM

    JRM (de6363)

  15. Thank you, Patterico, for responding to my query.

    dchamil (598aa5)

  16. JRM

    I suppose sometime in history someone was wearing pants that weren’t theirs

    LOL! “These pants I’m wearing? They’re not mine.” That’s gotta be one of my all time favorites lines (I’m amazed at how often it’s used.)

    Though, I have to relate a new one that came through the office recently…

    Said the prostitute to the police officer after she was picked up in a sweep “Hey, I’m not a wh*re, I just give BJ’s for donations.”

    Darleen (543cb7)

  17. Is suborn perjury something that is in the eye of the beholder or is it hard coded (like treason is in the Constitution) ?

    seePea (adaca1)

  18. I respect prosecutors and police who do a difficult job, but the cases that PCR cites remind me of the cases I’ve written about at my website “Imaginary Crimes”: people sent to prison for life on the basis of unsupported accusations of abuse. Remember the McMartin daycare trial in California? There are still people in prison today, accused of abusing children while worshipping Satan. No DNA evidence can clear them because there is no DNA to check. They are ordinary people caught up in a nightmare.

    Lona Manning (ca9374)

  19. Lona:

    I don’t know enough about the cases you have posted to comment on those still in prison, and I do believe it’s plenty righteous to convict people without physical evidence but that said I believe that the ritual abuse cases are by far the worst collective miscarriage of justice in this country over the last 30 years.

    RJN: Apparently your common sense differs from mine.

    Htom: I don’t think it’s wise to always get a lawyer. If I had invoked Miranda when I was read my rights, I would have spent the night in jail for sure. At least the night. And justice would not have been served.

    –JRM

    JRM (100b19)

  20. Xrlq wrote:

    Guys with only one name are cool, though.

    Even if they have no vowels?

    Dana (3e4784)

  21. The plea-bargain system serves only the guilty and the State. The guilty get a better deal, and the State saves money; money it put at hazzard with it’s awful drug laws.

    The mechanism of plea-bargaining works to screen out the innocent and concentrate the prosecutors time and money on them. This is so obvious that it is shocking not many lawyers see it, or admit it.

    RJN (e12f22)

  22. Even if they have no vowels?

    Spclly f thy hv n vwls.

    Xrlq (f52b4f)

  23. I’ve told the story of the electric fence before. Pee on it if you want. Once was enough. I’d talked to cops many times before, about equally innocent things. Never, ever, again.

    htom (412a17)

  24. Mike Nifong should do the whole prison time the 3 accused Duke Lacross team players would have had to do if convicted, in general population – not sheltered at a country club prison. Plus pay the defense legal fee’s. Isolated example or not – if behavior on the part of a prosecutor were dealt with in this manner – it would not occur at all.

    Gbear (c22f1c)

  25. Patterico, what’s your opinion of this story? Keith is a friend of mine, and I absolutely believe that he is telling the truth. Naturally, he came out of the experience with zero confidence in the justice system, and convinced that no conviction is reliable; I prefer to think that this sort of case is an aberration, but am I just being naïve?

    Milhouse (61ed0f)

  26. Spoken by the usial crinmal coddling liberal left-wing journalists who can trust these reptiles?

    krazy kagu (d25348)

  27. Maybe he made the whole thing up; without looking it up, it seems not only possible but probable, given the circumstances. From my experience, it’s far past probable into “approaching certainty” territory.

    htom (412a17)


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