Belaboring the Obvious

Saturday, February 13, 2010

Might this be a more pervasive problem...

... than even Greenwald surmises?

Glenn looks at this from the viewpoint of how Guantanamo has perverted the justice system, and he's, to my mind, quite right in his estimation.

However, I've been thinking about this at a more mundane level for some time. Where I live, jury duty is a protracted business. One must be on call and available for three months, every three years, so, more than people in other areas, I find myself called for a lot of trials.

Invariably, during those jury deliberations, there is a tendency on the part of jurors to dispose of cases quickly, and jury forepersons will often call for an initial vote without much deliberation. Often, those initial votes produce, roughly averaged, a two-thirds majority for conviction. Only when there are holdouts does the actual business of deliberation and examination of the evidence begin, and not always in earnest.

This general trend to unqualified belief in the government's position has bothered me, because it runs counter to the whole point of a "jury of one's peers." That principle, long-held in jurisprudence, assumes that ordinary people, in the face of the considerable accumulated power of the government, will be more inclined to defend the innocence of one of their own than to side with a powerful state that could just as easily, capriciously or mistakenly, put them in jeopardy, too.

And yet, in practice, exactly the opposite happens. Certainly, in some instances, the government's case affirms racial or ethnic prejudices in a given jury. I've seen that happen. But, for the largest part, the most powerful force in effect at the moment deliberations begin is the mere fact that the prosecution has brought a case to trial. For the largest percentage of jurors, that seems to lend more credence to the proceedings than the evidence presented. That's the near-religious faith in the government's infallibility of which Greenwald speaks.

That's a very worrisome trend, for a whole host of reasons. First, of course, is that the average juror is unaware of the circumstances leading to trial--the desperation to produce a suspect might lead an investigation to people who are innocent. Second, the average juror is likely not to understand the ways in which a prosecutor can lead a jury to conclusions that the evidence does not support (I've seen prosecutors use opening and closing remarks, for example, to assert a truth for which they presented no evidence whatsoever, and that works on some jurors). Nor do jurors see the increasingly bitter relationship between prosecutors and defense lawyers regarding the production of evidence (I've seen prosecutors hand previously-undisclosed evidence to the defense moments before a trial began, when there's no time to evaluate that evidence, in order to technically comply with rules of discovery and yet still leave the defense at a disadvantage), and the general trend of prosecutors to see winning cases as the highest priority, with truth and justice of considerably lesser importance.

I don't have any firm conclusions about the reasons for this phenomenon, just best guesses. Media and politicians focus on crime because it's a hot-button issue for most people. People, quite naturally, fear having their lives disrupted by criminals, and it's of little consolation to them that per capita crime rates have, in the very long term, been declining. To many people, that's just statistics, and doesn't have the emotional impact of the nightly news.

Civics education may play a role, too. I've encountered jurors who adamantly believe that the entire system is backwards--that the proper way to proceed is the assumption of guilt, not innocence (and, when asked if they themselves would prefer that sort of treatment, often answer that they're not criminals, and if brought to trial could easily prove they were not guilty--a self-delusion if ever there was one).

For most of the last century, the state has also enlisted science as its ally, even though the question of whether or not the science is properly applied or is rigorous enough to be conclusive is still an open question in most trials, and most jurors are ill-equipped to evaluate scientific findings, no matter how many episodes of CSI they may have watched. Perhaps the most egregious recent example is that of the use of fingerprint analysis to arrest Brandon Mayfield, an Oregon lawyer accused of complicity in the Madrid train bombings. The FBI specifically, and law enforcement generally, has promoted in the public mind the notion that fingerprint evidence is specific, unique and foolproof (in some absolute sense, this is true--even identical twins have different fingerprints), and yet, the Mayfield case showed that the manner in which fingerprint evidence is interpreted is perishingly far from conclusive and absolute. (Mayfield's case also shows fairly clearly that loose interpretation of the evidence may simply be the wedge by which the state manipulates the judicial system toward a desired end. Mayfield was a family law lawyer with connections to the Muslim community and was assumed by the government--without any evidence--to be a material witness in the aiding and abetting of terrorism, in part because he defended one of the so-called Portland Seven. His arrest on the fingerprint evidence enabled exceedingly broad search warrants of his home and office which the government hoped would yield incriminating evidence, or items which could be nuanced as material support for terrorism. Those search warrants would likely not have been approved by any court without the FBI affirmation of a positive fingerprint match--evidence which turned out to be completely erroneous and which was based on inadequate and superficial analysis. Why the government decided to look at Mayfield's fingerprint for a match--among the hundreds of millions of individual prints in its files--hasn't been properly explained.)

Paradoxically, prosecutors have been vigorous in protesting the introduction of new DNA evidence in settled cases for which there have been convictions. The state's belief in science apparently does not extend so far as its use in calling the state's infallibility into question. Of the many cases which the Innocence Project, for example, has successfully reopened, virtually all have depended upon scientific technologies such as DNA mapping, and a significant percentage of those overturned cases show prosecutorial or law enforcement misconduct in the extraction of false confessions for use at trial. (Here, one can find direct analogues in the use of torture at Guantanamo, to both extract false confessions from suspects and false testimony from witnesses.)

Fast fading, too, is the ancient prescription of Maimonides that "[i]t is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death." This is not the sort of thinking that dominates the mind of the average juror walking into a jury room, and yet, it should. Somehow, and for reasons I don't completely understand, many jurors are able to divorce what treatment they would wish for themselves from what the state intends for others. Perhaps, because they are generally law-abiding, they simply cannot imagine any circumstance in which their lives or liberty might be threatened by the state, and yet, examples abound of law-abiding citizens finding themselves in the position of defending themselves against a state system heavily weighted in favor of the state. Think, for a moment, about the thousands of teenagers wrongly sentenced to juvenile detention in the case of the two corrupt judges in Pennsylvania. The general presumption of most of those concerned was that the judges were acting in accordance with law, and even those in the legal system who were suspicious of their actions deferred to them because they were perceived as politically powerful. That case is a prime example of how the power of the state can be misused, and yet, there's little skepticism on the part of jurors, generally, about whether individuals with the power of the state behind them are behaving properly, dispassionately and without self-interest.

Ultimately, I think it comes down to a population increasingly deferential to authority, and tolerant of the use of force, both physical and prosecutorial, by the authorities, the root cause of which is likely fear. Fear of crime is often a more powerful motivator than actual personal experience of crime. Fear of terrorism clearly inclines one toward a dependence upon authority to a much greater degree than terrorism itself (Nate Silver estimates the odds of being a victim of airborne terrorism as about 1 in 10,000,000, while the odds of being struck by lightning are about 1 in 500,000, and yet, there's a helluva lot more fear of terrorism than of lightning, and much more expectation that government do something to allay one's fears of terrorism).

So, is there a chicken or egg feature to this fear? Is government, generally or specifically, encouraging this fear in order to advance its authority? It would certainly seem so if one looks at the last eight years' worth of governmental excesses in the name of fighting terror and the concomitant diminishment of civil rights which has been a result of those anti-terror programs. Even at the local level, ordinary people are remarkably tolerant of police use of tasers, even when it's apparent that their use is intended to enforce deference to authority, just so long as local politicians portray the taser as a law enforcement tool which enhances law and order.

Perhaps it's just human nature to think it's okay to cast off rights which one doesn't expect to have regular need of in daily life, if government promises increased security by doing so. It might also be simple human nature to think of suspected criminals as having lives different than one's own which incline them to suspicion (and presumed guilt). And, perhaps, it is these inclinations which prompt many people to find comfort in the government's depiction of some "other" as an existential enemy not worthy of rights, even when that presumed enemy is a fellow citizen.

The increasingly authoritarian character of our society today should rest uneasily on people's shoulders, and ought to prompt a rational skepticism of government, rather than blind trust. It was that unwarranted trust that Dietrich Bonhoeffer addressed when he said: "First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me."

The first place that such skepticism ought to be in evidence is in the cloistered rooms of the nation's juries, but, in my experience, it often is not, for many of the same reasons that torture and indefinite detention by an increasingly powerful government are too often tolerated by people who have yet to find themselves in need of those human and civil rights they see as an impediment to the state's aims and intentions, which they credulously assume are the same as their own.


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