American Criminal Justice System B0rken, Film at 11

Radley Balko’s blog The Agitator remains an indispensable source of information on cases like these, as well as the uncountable cases in which the War on [Some People Who Use Some Kinds] of Drugs has metastasized into a cancer that gets untrained local law enforcement *and Shaq* rolling out in surplus military gear to perform ill-advised and pointless SWAT-style raids.

Sorry, thought that needed some nuance. You all should feel reassured now.

At the risk of derailing the thread, even if the dude linked by BH had been the worst paedo since Fred West (rather than, as it turned out, innocent), I’m still struggling to work out the public interest in sending sports stars to join SWAT raids on suspected perverts.

David Grann’s New Yorker article on Willingham is a fantastic piece of journalism. But even with all of that detail, he doesn’t quite plumb the depths of the rot, partly because a couple of the principal actors doubled down after the story came out. It was TV interviews in both case — I guess that’s where an idiot can really be an idiot.

John Jackson, the prosecutor, suggested to Nightline that Willingham was a devil worshiper who burned the shape of a pentagram into his floor. It’s kind of true — there’s a pentagram-like blob, with rays that point to the windows and the door, the sources of oxygen (I was kind of obsessed with this case for a while, so I have the forensic drawing and many many other details on my blog, linked above).

David Martin, Willingham’s lead defense attorney, told Anderson Cooper that he went out into his backyard, poured lighter fluid on a piece of carpet, and set it on fire. What was left looked just like Willingham’s floor, and to Martin that proved his clients guilt. Like Jackson, he has no doubt that the scumbag got what he deserved.

Martin and Jackson are Perry’s kind of people — superstitious, vindictive, and stupid. When Perry was getting a lot of heat about Willingham in fall 2009, one way he pushed back was with the fact that Willingham’s defense attorney believed that his own client was guilty. From the moment Willingham was arrested until he was murdered, the stupidity and ill will and hypocrisy is absolutely nauseating. Perry would clearly like to keep it that way. In those Balko articles there’s plenty of the same kind of thing — dull-witted abuse of power plus a lot of indifference creating a hell on earth called “justice.”

And there’s a final ironic connection between Perry and Willingham. Perry’s general council when he brushed off Willingham’s final appeal was David Medina. Medina was caught up in his own little arson case in 2008 (it was his wife who was charged with arson, he was charged with fabricating evidence). The fire at his house was suspicious in roughly the same ways as Willingham’s fire. Needless to say, he got a much better lawyer — I doubt that he’d let the likes of David Martin defend his dog. These days he’s sitting on the Texas Supreme Court.

john b @3:

I’m still struggling to work out the public interest in sending sports stars to join SWAT raids on suspected perverts.

It combines everything Americans love and respect: guns, brutality and celebrities.

For commenters interested in following this grim topic, one of the best sites I’ve discovered is solitarywatch, which started as a project by Washington and Lee Law School. The home page provides a long list of links to related sites. One of the (few) inspiring initiatives is that of the American Friends Service Community, specifically their “Healing Justice” project.

SWAT teams shooting family pets and knocking off grandmothers is the inevitable consequence of arming local police forces with surplus military equipment. All those absurd reality shows with over-the-hill action stars aren’t helping either. The whole thing is rotten to the core.

There’s a whole chapter on “misidentifying your rapist” in Kathryn Schultz’s “Being Wrong”

Schrechlichkeit. The occasional execution of an innocent just shows we mean business.

It’s good to see more CT focus on this. But folks on the left really need to give up the reassuring but false belief that this is primarily a partisan problem that can be blamed on Perry, Scalia, et al. I mean — is the justice system in Texas really worse than in Chicago?

http://news.medill.northwestern.edu/chicago/news.aspx?id=6125
http://www.chicagoreader.com/chicago/police-torture-in-chicago-jon-burge-scandal-articles-by-john-conroy/Content?oid=1210030

Which are the only two states where citizens recording police who are committing abuses in the line of duty is a felony wiretap offense? The answer is Massachusetts and Illinois, not Alabama and Mississippi. Columbia, Missouri — where the infamous dog-shooting Youtube SWAT raid took place — is a liberal college town. Am I saying it’s worse in ‘blue’ regions than ‘red’ ones? No — just not any better.

Lastly, one critical factor that hasn’t been mentioned so far is the impact of federal and state asset-forfeiture laws which make the war on drugs vastly profitable for law-enforcement agencies. Here’s the indispensable Radley Balko on the topic:

http://reason.com/archives/2010/01/26/the-forfeiture-racket/singlepage

Brett: Your disclosure “Scalia, (And he’s not my favorite Justice.)” begs the question: Who is your favorite justice (as well as, perhaps, why)?

on the face of it the constitutional guarantee of due process is a guarantee that the process be followed, not that it produce a just result

Sigh. Learned lawyers and judges have been debating the meaning o0f the due process clause of the 14th Amendment for more than 150 years now. Mr. Bellmore is oblivious to this debate, and thinks he can start over from the beginning with the words of the amendment and get a better result. Of course, neither Scalia nor just about anyone else with the expertise to offer an opinion we need to take seriously believes there is no substantive component of due process.

Brett, why does such bullshit have an attraction to you? The clear words of the Constitution do not mandate “any process, no matter how unfair,” and yet here you are, insisting that they do. What’s the appeal? Do you somehow get the sense that the knowledge that an innocent man was punished proves that the system works, since it means that the standard isn’t set too high?

Brett, you are just plain wrong. The whole point of substantive due process; the entire logic behind the privileges and immunities clause; the 14th Amendment (which forbids the states from depriving Americans of their fundamental rights as American citizens); and a whole line of deeply enshrined common law principle (entrenched by “reception statutes” in 49 of the 50 states, and implied in federal law by the 7th amendment) going back at least to Blackstone (“better that ten guilty persons escape than that one innocent suffer”) and even further to the 15th century English law text “De Laudibus Legum Angliae” (whose author probably stole the line from Maimonides); all weigh against your claim. Even Scalia admits sometimes that due process means procedures must be basically fair (i.e. McDonald v. City of Chicago) and not just in compliance with codified law.

Fiat justitia ruat caelum.

That bit from Scalia always makes me trot out Montaigne:

How many innocent people have we known that have been punished, and this without the judge’s fault; and how many that have not arrived at our knowledge? This happened in my time: certain men were condemned to die for a murder committed; their sentence, if not pronounced, at least determined and concluded on. The judges, just in the nick, are informed by the officers of an inferior court hard by, that they have some men in custody, who have directly confessed the murder, and made an indubitable discovery of all the particulars of the fact. Yet it was gravely deliberated whether or not they ought to suspend the execution of the sentence already passed upon the first accused: they considered the novelty of the example judicially, and the consequence of reversing judgments; that the sentence was passed, and the judges deprived of repentance; and in the result, these poor devils were sacrificed to the forms of justice. Philip, or some other, provided against a like inconvenience after this manner. He had condemned a man in a great fine towards another by an absolute judgment. The truth some time after being discovered, he found that he had passed an unjust sentence. On one side was the reason of the cause; on the other side, the reason of the judicial forms: he in some sort satisfied both, leaving the sentence in the state it was, and out of his own purse recompensing the condemned party. But he had to do with a reparable affair; my men were irreparably hanged. How many condemnations have I seen more criminal than the crimes themselves?

Like the Bork pun in the title.

tomslee, in civil cases a fast resolution enables people to decide what to do. When you can’t say who owns a farm or something else, it creates real problems that can destroy the value of the item in question.

“In defense of Scalia, (And he’s not my favorite Justice.) on the face of it the constitutional guarantee of due process is a guarantee that the process be followed, not that it produce a just result. And ANY fixed process is going to have a failure rate. The only way to exclude the possibility of false positives is to drive the rate of false negatives to 100%. To have a legal system AT ALL is to accept that injustices will occasionally be done.”

Then I must assume Scalia is an opponent of the death penalty, right?

” it is occasionally useful to return to the actual text which is allegedly being interpreted.”

Quite right. So let’s not leave out one-half of the two words allegedly being interpreted. The word “due” is helpfully defined by Webster’s 1828 as “Owed; that ought to be paid or done to another,” and “Proper; fit; appropriate.”

That so, the phrase “due process” is thus ineliminably evaluative: while the plain text of provision might not require a just result, it does explicitly require a just process. And then of course one can meaningfully wonder how it is that procedures that generate a manifestly unjust result in a particular case can, as applied in that case, sensibly be characterized as “just.”

The point here, I think, is that the Constitution does not require a procedure which is perfect.

That’s not the argument here, however. The argument (at least as developed in this thread) is that the Due Process Clause of the Constitution requires a remedy if the evidence shows that a prisoner was wrongly convicted in a particular case. This isn’t an argument that the system has to be perfect; it’s an argument that the system has to correct its mistakes when they’re identified. In his habeas decisions, Scalia has made it clear that he doesn’t consider the continued imprisonment or execution of someone who the evidence shows to be actually innocent involves any constitutional violation.

Those of us who think that Due Process entails, in part, remedying clearly unjust results think that such cases present egregious constitutional violations. The text of the Constitution simply does not answer this question, and so for all his claims of “originalism”, Scalia’s position is nothing more than an illustration of his policy preferences. (Moreover, his public statements make it clear that he considers such results to be consistent with Catholic doctrine as well, which seems downright laughable to me; but I’m not a Catholic, so what do I know?)

“I am at a complete and utter loss how you could have concluded that from what I wrote.”

Well Scalia accepts that injustices will occasionally be done, since the legal system is imperfect. But since he isn’t opposed to the death penalty, this means he accepts that innocents will be executed, and that makes him a monster.

The idea that executive clemency serves to correct the mistakes of the criminal justice system has little reality. There is no constituency for crime or criminals. The federal courts in the US have been able to fix errors in the lower courts because the judges have lifetime appointments and are more insulated from political pressures. Governors will not risk votes by granting clemency. I recall reading that Gov. George Bush never even read any clemency petitions.

The 1996 Antiterrorism and Effective Death Penalty Act greatly reduced the ability of the federal courts to review errors by lower courts. This dramatic restriction on habeas passed the Senate and House by large majorities and was signed into law by Bill Clinton. In the wake of the Oklahoma bombing, no one wanted to look soft on terrorists. A plaintiff can have clear evidence of actual innocence but be unable to have a hearing on the merits.

Scalia can say there is no constitutional violation in executing an innocent person precisely because he gets to define the parameters of constitutionality. He easily could have found precedent to support some sort of safety valve in cases of actual innocence, at least in death penalty cases, but chose not to do so. Because he’s a nasty, cold-hearted bastard.