Patterico's Pontifications

Not sure what all this hub-bub is about. I watch this reality show on CBS about CSI agents in Miami and they seem to be extremely honest and profesional. In fact, they are always butting heads with the DA’s office. Sorry I can’t remember the name of this reality series.

Demetri (c3f397) — 2/20/2008 @ 12:56 am

He is obvious he is thinking about Nifong, or Allgood, or???? Or pick any of those willing to hang a child in a formal court for being nothing but a kid in school!

Soooo Patt, what you are saying is that those that can do, and those that can’t Teach?

OK. 🙂

TC (1cf350) — 2/20/2008 @ 3:16 am

That’s reading a little far into this post …

Joe M. (5d215f) — 2/20/2008 @ 4:09 am

The difference between an unethical/incompetent prosecutor and the same in a professor is the ultimate damage done. Flunking the Bar is not the same as spending ten years in prison due to prosecutorial misconduct.
America can, and does thrive despite a rate of well over 10% of poor law professors. If the rate of poor prosecutors (or brain surgeons, or parachute packers) was (or is) that high, we are in deep trouble.
A simple solution is to replace absolute prosecutorial immunity with relative immunity. This would not bother the honest prosecutors. For some reason, however, it bothers the profession.
After the Nifong fiasco, North Carolina prosecutors pushed to have the open file disclosure laws weakened or revoked. Why? Obviously not in the pursuit of truth.
Perhaps the adversarial system has become philosophically corrupt and corrupting – although I am willing and happy to accept you as an exception. Sometimes I suspect that as in politics, amorality and corruption are advantageous in advancing through the prosecutorial ranks. Case in point, out of many: Elliot Spitzer.

great unknown (fd3f06) — 2/20/2008 @ 6:19 am

Every government office holder and employee MUST be distrusted or at least be subject to continual scrutiny by the public and by other branches of goverment. Even those I admire like Patterico.

That is a fundamental principle embedded within the Constitution – “set ambition against ambition.”

Law professors and professors in general have a institutional problem – tenure. Whenever an individual or group is protected, corruption abounds and the individuals and groups become self-serving.

Joseph Somsel (e5cbf5) — 2/20/2008 @ 6:33 am

Axis of Evil: Media, university and entertainment.

Alta Bob (4daddd) — 2/20/2008 @ 7:25 am

“Whenever an individual or group is protected, corruption abounds . . .”

That’s an overstatement. Self-serving? Sure. As everyone is.

And I never said government officials shouldn’t be subjected to scrutiny. We should. That’s not the issue.

To say you’re “extremely suspicious” of an entire professional class, as Bernstein did, based on a handful of anecdotes — in my opinion, that’s just silly.

Patterico (62487b) — 2/20/2008 @ 7:48 am

I’m lookin’ at you Irwin.

daleyrocks (906622) — 2/20/2008 @ 8:12 am

Daleyrocks,

Don’t you mean Erwin, as in Chimerinsky?

PCD (c378fd) — 2/20/2008 @ 8:53 am

Actually, given that Prof. Bernstein teaches “teaches Torts II, Products Liability, Evidence, Constitutional Law, Scientific and Expert Evidence” — all of which relate pretty closely to courtroom disputes, and only two of which are limited to civil trials — I’m rather more surprised to read his statement that “I used to feel somewhat contemptuous of defense attorneys, wondering how anyone can defend people they know are guilty, and I still couldn’t do it myself.” That’s frankly the kind of thing most often said by people who have a poor grasp of, or else are uncommitted to, the adversary system (both in its underlying theory and its actual practice). In my own experience, it’s the lawyers who practice in the courtroom on a day-to-day basis who actually have the highest regard for, and best understanding (both theoretical and practical) of, the adversary system.

When he then writes, “Even with a vigorous adversarial system, prosecutors still all too frequently rely on junk science, withhold exculpatory evidence, and otherwise abuse the system,” I’m perplexed as to why he only levels this criticism at prosecutors. The sentence could as easily be re-cast to read: “Even with a vigorous adversarial system, one side or the other still all too frequently tries to rely on junk science, withhold relevant evidence, and otherwise abuse the system.” Then it would be a true statement, and one that applies to both criminal and civil proceedings.

In fact, though, precisely because we have a reasonably vigorous and effective adversary system (as compared to that in many other countries, including some that are considered quite “civilized”), with mostly-capable and mostly-neutral referees presiding over the adversaries’ presentation of their respective cases, I believe that most cases (civil and criminal) are not in fact decided based on junk science, withheld material evidence, or other system abuses. Indeed, in my personal experience, it’s only a small fraction of advocates who actually try to get away with such shenanigans; most recognize them to be counterproductive, a waste of energy and credibility.

I like Prof. Bernstein’s blogging, and I don’t want to draw any adverse or overbroad conclusions about him or his teaching from this one short post. But it’s this kind of remoteness and lack of appreciation for the genuine and tangible strengths of the adversary system that makes me worry about how well law professors, as a class, end up preparing their students to practice in the system, and which makes me even more concerned about the prospect of a federal appellate judiciary that relies so heavily on law professors as a poor for prospective judges.

Beldar (3df1f4) — 2/20/2008 @ 9:20 am

Ack … last sentence should end “pool for prospective judges,” not “poor.”

Beldar (3df1f4) — 2/20/2008 @ 9:20 am

I agree with Beldar. I think there is a distinction between lawyers and legal scholars and I would illustrate it with the contrast between Bork’s “The law is an intellectual feast” and Roberts’s “The law is a practical affair which impacts the lives of real people” (roughly).

(I did, however, have two law professors who were real lawyers: My Civil Procedure professor had bite marks on his legs from dogs set loose on him in the South while he was working with Thurgood Marshall on desegregation cases and my Constitutional Law professor was a regional director of the ACLU. And my Trial Practice instructors were prosecutors, public defenders and private defense attorneys.)

nk (798403) — 2/20/2008 @ 9:39 am

It’s ’cause you sexist, homophobic, racist prosecutors think that criminals ought to be locked up in jail, don’t you know? If’n you’d just show a bit more compassion for the drug-crazed murderers — since, after all, they can’t really help it! — then perhaps Professor Bernstein would have more sympathy for you.

Dana (3e4784) — 2/20/2008 @ 9:55 am

It’s GOOD to be deeply suspicious of government employees. I’m also deeply suspicious of cops, congress, judges, social workers and anyone else paid from tax revenue.

I’m willing to admit that some are good and honest. Patterico might be one of those. I know next to nothing about his professional life. But that doesn’t mean we shouldn’t be suspicious.

joe (33ce8e) — 2/20/2008 @ 10:08 am

Beldar —

There are many people who are knowledgeable about our adversarial system, but who simply disagree with you about the “underlying theory and its actual practice”. I have NEVER seen an advocate for our current advocacy system actually listen to and try to engage with its critics.

And by the way, there are many constraints our current system places upon defense lawyers. It is hardly a sign of ignorance if someone suggests that there should be more.

LTEC (fd0803) — 2/20/2008 @ 10:46 am

If I were King (“It’s good to be the King”) no one could be hired by a public university as an instructor or professor before they worked in the “real world” for a minimum period of time, say 2 years following the awarding of their degree. Law profs, for example, would have to actually practice law prior to teaching. Doctors would practice medicine….

Of course, as King I would also issue a decree that students would have to also separate their education track by real world experience…i.e. 1 year gainful employment between HS and college, ditto college and grad school, masters & Ph.D.

Horatio (ba946e) — 2/20/2008 @ 11:01 am

Hey, King!
Don’t forget a prohibition on lawyers being legislators. Severe conflict of interest there.

Another Drew (f9dd2c) — 2/20/2008 @ 11:14 am

The human tendency will be to build barriers to protect one’s own security and income and prevent competition – remember “power corrupts…?” Individuals like George Washington are historically rare.

In every case I know of a barrier to accountablity and competition results in degradation. Prosecutors are open to public debate about their performance by judges and the public. They (or their supervisors) stand before the voters periodically. While they do have an interest to fudge the evidence to great harm to the defendant, they are seldom able to hide misbehavior for long.

Tenured professors, on the other hand, lose accountability with investure.

Joseph Somsel (e5cbf5) — 2/20/2008 @ 2:03 pm

Don’t forget a prohibition on lawyers being legislators. Severe conflict of interest there.

Excellent suggestion! I declare this to be the LAW OF THE LAND

Horatio (a549f7) — 2/20/2008 @ 3:31 pm

I looked up the word “suspicious” in the dictionary, and “condemning based on a limited and skewed sample” wasn’t among the definitions. Had the same problem with my thesaurus.

But then again, I wasn’t looking in the prosecutor’s dictionary or the prosecutor’s thesaurus. Maybe that was my problem.

Phil (aa9cba) — 2/20/2008 @ 6:38 pm

Phil,

I am inclined to suspect that you are evil.

But don’t worry . . . I ain’t condemnin’ ya!

Patterico (4bda0b) — 2/20/2008 @ 6:47 pm

Next time you feel like being a smart-ass, try being right first.

Patterico (4bda0b) — 2/20/2008 @ 6:49 pm

Bernstein’s screed still strikes me as very strange, for the reasons both Beldar and Patterico note.

On the defense side of it, I certainly understand not wanting to be a criminal defense attorney, and I even understand finding criminal defense attorneys generally to be a little….. odd.

But wondering how anyone can do it and feeling contempt for them? The people who do it are vital to the system.

The shot at prosecutors seems like non-rigorous thinking (to be polite) to me.

–JRM

JRM (355c21) — 2/20/2008 @ 7:09 pm

Patterico, I read the definition you linked to, and I can’t find either the word “condemn” or any suggestion that such condemnation is “based on a limited and skewed sample.”

Your post appears to equate the statement “I’ve become suspicious” with “condemning an entire profession based on a limited and skewed sample”

I don’t see how those two statements are equivalent. Where do you get either that he’s “condemning an entire profession” (prosecutors) or that he’s doing so “based on a limited and skewed sample” from the statement “I’ve become suspicious”?

I’ve become suspicious of prosecutors, too. Not because I condemn the entire profession, or because I’m looking at a limited and skewed sample. Rather, it’s because they have very serious power, which they exercise with extreme discretion, and have very little accountability for mistakes made using that power.

I’ve also become very suspicious of doctors, for the same reason. While (as with prosecutors) Im’ very grateful for the service they provide when they do it correctly, I believe they are sheltered from the consequences of their mistakes (just like prosecutors).

When a prosecutor or a doctor makes a mistake, it’s really hard to prove, and really hard to undo. And generally, even when a mistake is discovered, everyone jumps to his or her defense, because we desperately need them do keep doing what they do when they AREN’T making mistakes.

Now, as with prosecutors (see e.g. Nifong), you can point to exceptions among doctors — the occasions when they get hit with big penalties for their mistakes (via malpractice verdicts).

But these are the exceptions that prove the rule. They always raise the question “if you did it this time and got caught, how many more times have you screwed up and just kept quite about it?” Again, see Nifong . . . do you really think that was the only time he prosecuted without evidence? We’ll never know. He’s only paying for one of his mistakes — the innocents in jail are paying for the rest of them.

With penalties for mistakes and negligence (if you think there’s a distinction) being so rare, the public bears most of the risk for the errors and omissions of prosecutors and doctors. And it’s up to us, therefor, to be suspicious — because they don’t have a lot of reason to be suspicious of themselves.

Phil (aa9cba) — 2/21/2008 @ 5:27 am

Phil,

Click the link. Then click again.

I suspect evil in your failure to click the links, and your consequent pretense that there is no post that provides the context for Bernstein’s statement (which, by the way, you continually misquote, inside quotation marks, without the word “extremely”).

Yup, I suspect evil.

Or maybe just laziness and attachment to preconception.

Patterico (963fda) — 2/21/2008 @ 7:09 am

Patterico, is this the same old Phil who claimed to be a personal injury attorney? If so ….

In any case, I recommend keeping your wallet pocket buttoned around any lawyer. 😉

nk (798403) — 2/21/2008 @ 7:25 am

*whenever around any lawyer* I did not intend to say buttoning a lawyer in your pocket. 😉

nk (798403) — 2/21/2008 @ 7:27 am

Totally off-topic but a hat tip if you want to have a little fun with the Supreme Court. Danforth v. Minnesota. A seven member majority including Scalia, Thomas and Alito say that the Supreme Court does not make law but only states what the law already is. Roberts and Kennedy ~~laugh out loud~~ dissent.

nk (798403) — 2/21/2008 @ 7:35 am

Patterico, what I’m taking issue with in your post is your assertion that being “extremely suspicious” of prosecutors is somehow a bad thing, or irrational. You caricaturize it as such by refering to “condemning an entire profession” and is a conclusion “based on a limited and skewed sample,”

But you have no evidence that being “extremely suspicious” of prosecutors is either of those things.

As for the original full post by Bernstien you linked to in your blog, I did read that. Of course, he doesn’t “condemn an entire profession” at all. Nor does he represent that he’s basing his staements on a limited or skewed sample.

He does say that “Far too many of them seem to value ‘getting a conviction’ over ensuring that the convicted person is actually guilty of the crime charged.”

I’m curious — do you disagree with this statement? Do you think that, in fact, the number of prosecutors who value getting a conviction over ensuring that the convicted person is actually guilty is NOT ‘far too many?’ Perhaps just enough of them feel this way? Or just a few too many? Or not enough?

How much suspicion, exactly, do you think we should view prosecutors with? What level is healthy? None? Just a little? Some, but not as much as Bernstien does?

Even if we’re “extremely suspicious” like Bernstein, it doesn’t mean we’re condemning the profession. You claim it’s irrational to be extremely suspicious of prosecutors, but your basis for claiming it’s irrational is simply made up.

So really, why do you think prosecutors should above “extreme suspicion”? Are there any other groups of people who are above “extreme suspicion”? Doctors perhaps? Child care workers? Corporate executives?

Phil (6d9f2f) — 2/21/2008 @ 10:33 am

Phil,

I am extremely distrustful of you. I am extremely inclined to suspect evil in your actions.

In other words, I am extremely suspicious of you.

But I ain’t condemnin’ ya!

Oh, right. Already made that point. [Holds hand flat in front of face, palm facing downward, then moves hand over head while pursing lips and making “Sheeooo!” sound with mouth.]

“Nor does he represent that he’s basing his sta[t]ements on a limited or skewed sample.”

Oh. Well, if he didn’t REPRESENT it, then it didn’t happen!

I think you might win the award for Most Consistently Illogical Arguments Made on a Blog.

Patterico (4bda0b) — 2/21/2008 @ 9:20 pm

I think you might win the award for Most Consistently Illogical Arguments Made on a Blog.

Thanks for the vote of confidence; I hereby nominate you in the following categories:

Blogger Least Likely to Actually Respond to Commenters’ Questions;

Blogger Most Incapable of Recognizing the Potential Legitimacy of Opposing Views;

and finally, the coveted (and highly competitive)

Blogger Most Likely To Make Ad Hominum Attacks on Commenters’ Reasoning Ability

Phil (6d9f2f) — 2/23/2008 @ 9:52 am

2/20/2008

Bias in Action

31 Responses to “Bias in Action”

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