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Infected Prosecutions Get Tanked

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I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

The other news item is the acquittal on all counts of a white Baltimore policeman in the Freddie Gray case.  He had been charged, along with five other officers (two other whites and three blacks) with helping cause Gray's death in police custody. The case was brought by a radical black prosecutor who, after announcing the filing of charges, held an outdoor, campaign-style news conference to congratulate herself, then attended a rock concert (not a typo) ostensibly to laud some sort of "why-can't-we-all-get-along" theme, but actually designed, so it certainly seemed, to further inflame racial passions against the accused.  I discussed the prosecutor, Marilyn Mosby, and her antics several times, e.g., here.

A number of thoughts come to mind from today's stories.
1.  The time has long since passed for any actor in the criminal justice system to take account of race.  Criminal charges are about your behavior not your color.  That the prosecution should be striking jurors based on race is scandalous  --  as is the idea that defense lawyers should claim the right to do the same thing, which was their overtly racist position just 24 years ago in McCollum v. Georgia.

2.  In almost all cases, the defendant is factually guilty, and the legal outcome should, as a matter of routine, correspond to factual truth.  Only in the rarest case should the legal system be at odds with what happened in the world outside the courtroom.  Any other view would breed justified contempt for, and cynicism about, the system, whose ensuing failure would end in vigilantism. 

There are two instances I can think of off the top of my head where the system should depart from factual truth.  One is where the truth becomes provable only by torturing it out of the accused.  The other is where the body assigned to determine the truth  --  the jury  --  has been racially loaded.  This is not merely because a racially biased jury is less likely than a neutral one to find the truth.  It's because racial discrimination has such a poisonous history that it has to eliminated, root and branch. The costs to justice may be substantial in an individual case, but they will have to be borne if we are ever fully to get beyond this.

As Kent's post notes, this does not mean the rejection of racial disproportionality in outcomes (or, relatedly, that criminal law should accept disparate impact theory). Such rejection would amount to a get-out-of-jail-free card for thoroughly guilty blacks (and other minorities) simply by virtue of minority status.  That is likewise a miscarriage of justice. Racial discrimination should justify an outcome the departs from factual truth only where the defendant was critically disadvantaged because of racial animus. (I might add that the erroneous acquittal of blacks is most likely to result in future harm to other blacks, as the majority of crime, and certainly violent crime, tends to be intra-racial).

3.  Because the defendant is almost always factually guilty, his lawyer is generally engaged in some variant of a shake-and-jive.  Sorry, but it's true.  A straight rendition of the client's behavior is almost always a straight road to jail.  Because the canons of ethics allow, if they do not indeed require, defense counsel to avoid this unfortunate fate, the usual defense tactics have become delay, manufactured procedural obstacles, personal attacks on the prosecutor, diversion, exotic or simply fabricated mental state defenses, and anything else short of outright criminality.  Our system costs as much as it does, and takes the interminable time it does, because it tolerates these maneuvers.

Now here's the other side.

There are cases in which defense counsel actually is the hero of the Constitution he so often proclaims himself to be.  The defense against the Duke rape hoax charges is probably the best known example.  In my opinion, however, today's cases are two more.

The Georgia killer earned his death sentence, and I hope he gets it again (as I tend to hope that litigants get what they earn).  And, as Kent notes, it's open to question whether (literally) decades of second-guessing ultimately serve justice, as horrible cases in need of initial adjudication get pushed further back in the line.  

Still, on the state of the law as it exists now, defense counsel had the right to delve into the prosecution's notes, and what they found there (even if largely written by an investigator and not by the prosecutors themselves) provided the basis for getting seven Supreme Court votes, including Justice Alito's.  That is no small achievement. Indeed, one might say it's a large achievement, to the extent it puts government counsel on notice that challenging jurors simply on the basis of race is, beyond detestable, costly.

Defense counsel for the Baltimore police officer is likewise to be lauded (although he won't be, because he took the politically incorrect side).  The reason for today's acquittal mirrors the reason the accusations were dubious from the getgo:  It was less a trial than a circus, or  --  how shall I say this?  --  a race-driven rock concert.

Freddie Gray died as a result of injuries sustained in police custody, and there remain more than a few questions to be answered about that.  But the way to answer them is not with a "cops-are-Nazis" festival, which  --  thanks to an immature, political and grandstanding State's Attorney  --  is what the Freddie Gray prosecutions have become. Not for nothing did she lose today's case, just as she fumbled away (in a mistrial) the one before.

Today's outcomes have many lessons.  The first I saw is for prosecutors:  Bad news for the sleazy minority is good news for the honest majority. 

1 Comment

Justice Thomas' opinion was correct. It is depressing to think that the law was subordinated to handwringing about what might have happened 30 years ago.

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