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Version: 1.0
(July 25, 2005)

Our Glorious Adversarial System of Justice

Apr 18, 2012 by Ugh
The Washington Post yesterday had a long article along with other accompanying information (see here for just one additional sample) regarding shoddy work by FBI forensic analysts and the failure of the Justice Department to notify defendants/convicts and/or their attorneys of the issues, which may have, and has, led to exoneration of convicts based on subsequent DNA analysis. I was reading the main article this morning on my phone but the main WaPo site has much more information regarding specific cases, forensic evidence, and other things.

It is, quite frankly, astonishing, not so much for the actual issues reported by the Post but for what's not there, as the investigation they're reporting on seemed extremely narrow and focused, as if the Justice Department/FBI didn't want to look any closer for fear of what they might find (i.e., thousands, if not tens of thousands, of wrongly convicted defendants across the country due to flawed FBI forensic work). Even more damning, of the cases that they did investigate and discover flawed evidence, they failed to inform defendant and/or defense counsel of the issues. Also troubling, while FBI labs may have high standards for a match, it appears that when it came to actual testimony given by FBI personnel, they were basically allowed to say their conclusions were much more certain than the actual scientific evidence warranted, with little or no consequences.

The Post follows up today with another piece. Noting that, in the "in the governmentís high-profile terrorism trial against Omar Abdel Rahman, the 'blind sheik'.... Frederic Whitehurst, a chemist and lawyer who worked in the FBIís crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecutionís theory of the bombing." Oh rly? And then, "After the Justice Departmentís inspector general began a review of Whitehurstís claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that 'no defendantís right to a fair trial was jeopardized,. as one FBI official promised at a congressional hearing. The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found."

And: "The documents and interviews tell a story of how the Justice Departmentís promise to protect the rights of defendants became in large part an exercise in damage control that left some prisoners locked away or in the dark for years longer than necessary. The Justice Department continues to decline to release the names of defendants in the affected cases."

And: "The chief of the labís explosives unit, for example, 'repeatedly reached conclusions that incriminated the defendants without a scientific basis' in the 1995 Oklahoma City bombing, Bromwich wrote. The head of toxicology lacked judgment and credibility and overstated results in the 1994 Simpson investigation. After the 1993 World Trade Center attack, the key FBI witness 'worked backward,' tailoring his testimony to reach the result he wanted. Other agents 'spruced up' notes for trial, altered reports without the authorís permission or failed to document or confirm their findings."

But: "Task force participants said [AG Janet] Reno signed off on the decision allowing prosecutors to decide what to disclose, because normal legal and constitutional requirements give prosecutors that discretion."

Well that's nice.

I think another large piece of evidence that the adversarial system of justice that operated in the United States, which is constantly defended by people who should know better as the "best" method at arriving at the truth, is fundamentally flawed by creating an "us vs. them" mentality on the part of prosecutors and FBI/police, whose overriding goal becomes to convict whoever happens to be sitting in the accused's chair.


Apr 19, 2012, 10:55:51 sapient wrote:

I agree that what is described by the article is a huge travesty. I disagree that it's an indictment of the adversarial system.

The adversarial system, or any system, is only as good as the people who are working in it. The adversarial system is based on rules that weren't followed by the Justice Department or the FBI - rules about careful forensic analysis, about disclosing exculpatory evidence to defendants, etc. You can't really blame a system when the rules of the system are being corrupted.

What would your system be, Ugh, for determining the guilt of criminal defendants and trying to figure out what to do with them once they were found guilty?

I've had the occasion to know many lawyers and judges. Many of them are exceptionally fair minded, competent people. Some aren't. I also know people in mediation. The same is true. Psychologists? Same. Teachers? Same. Physicians? Same. In every area of life, there are people who understand what the purpose of their work should be and how to do it, and there are people who are corrupt, or lazy, or bad at their work, or distracted, or sloppy, etc. Often professionals have the power to ruin people's lives.

The difference with politicians and government and much of the legal system is this: if enough people give a sh#t, people can be held accountable. Unfortunately, not that many people do care.

Really, Ugh, what is the system you'd suggest and what procession of saints are you going to have run it to make it perfect?

Apr 21, 2012, 08:25:24 libjpn wrote:

ugh, I'd love to front page this or maybe the one after this. Let's chat about this a bit via gmail.

Sapient, the argument I see is not that we want a more perfect system, we need some more acknowledgements of the problematic aspects of the adversarial system, possibly structural. If this doesn't happen, the system will, I think, lose legitimacy. I'm sure that the people invested in the system feel that it is fair minded, but when confronted with the problems of the system, there seems to be no attempt to attenuate the worst excesses of the system. Maybe I'm responding too much to anecdote, but the resistance to reexamining DNA evidence in a lot of places, and the continued reliance on eyewitness testimony, despite reams of studies showing it to be the most unreliable, suggest that the system cannot handle criticism.

Not directly related, but I'm a fan of <a href="">Jerry Kang</a>, who has this <a href=">article</a> and this <a href="">article</a> about how the narrative of the Supreme Court and the Japanese American internment is self serving and fails to acknowledge the failure of the courts. His work on implicit bias is also quite good.

Apr 21, 2012, 08:33:28 libjpn wrote:

I'd love for either, or both of you, to write something about North Carolina's Racial Justice Act, which got its first use recently

links to a gallery, I can't seem to bring up the story link, but I'd be interested in your views of the act.

Apr 21, 2012, 09:00:49 libjpn wrote:

Here's the NYTimes article

Apr 21, 2012, 10:30:11 sapient wrote:

lj, thanks for soliciting my opinion. I wouldn't have much to say about North Carolina's Racial Justice Act other than that I am glad for it. The death penalty (as well as the penal system) is extremely racist. I am more a fan of rehabilitative than retributive justice, and the death penalty doesn't allow for rehabilitation. Obviously, given that the system is run by the "people," any racism of the "people" taints the system.

I'm happy for a critique (and suggestions for a modification) of the adversarial system. I'm not finding that with Ugh's posts (or his failure to respond to my comments). He basically concludes every one of his posts with a sentiment, whether stated or not, that "we're fucked!" He offers little solution.

Apr 21, 2012, 23:08:41 dr ngo wrote:

I think this is the link you want to today's News & Observer story on the NCRJA:

See also the Republicans' continued objections to racial justice:

Apr 21, 2012, 23:10:26 dr ngo wrote:

Screwed up the first link, obviously (although the Mental Health Hotline is itself worth looking at!). How about this one?

Apr 24, 2012, 04:37:19 Ugh wrote:

sapient - there are only so many hours in a day,; thus the critiques without solutions.

LJ - probably better to front page this one rather than the next, but not sure either is worthy.

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