The Buncombe County Superior Court has decided that it’s time for me to put in an appearance once again. The last time jury duty called, I was treated to a couple of hours of waiting around in a room with stale doughnuts. I hope I’m that lucky again. Because if it goes to the next step and I’m actually interviewed as a potential juror, I’ll have to tell the court that it really doesn’t want me on a jury.
I was raised in the Midwest. It was no Norman Rockwell upbringing by any means, but I did learn values there. Among them was a respect for the truth. Not “credibility,” not the acrobatics of evasion, but just plain truth — as in “truth, justice and the American way.”
Until I’d watched one too many episodes of The Paper Chase, I naively assumed that our system of jurisprudence joined me in enshrining the search for truth. It doesn’t. Where I put truth, courts substitute a game called “due process.” In a jury trial, two lawyers square off in a courtroom to play a case. A judge acts as referee, and the jury chooses a winner.
Witnesses and jurors are the only participants who have to swear to tell the truth. But I wouldn’t mind it so much if the playing pieces weren’t people. Sensitive refs and players may recognize humanity in the passing herd, but they have to remember that the game comes first: winning or losing, being upheld or overturned. And the overriding question is not whether they discovered the truth and acted in accordance with it, but whether “justice” was served.
Unfamiliar with the rules (and probably unaware of the nature of the game itself), jurors are told to play along. But they’re excluded from the lawyerly procedural squabbles that might yield additional clues about who’s zooming who. Instead, jurors must rely on the judge to tell them what constitutes fair play and what’s out of bounds.
Their trust is sometimes betrayed. Jurors in the California medical-marijuana trial this spring expressed outrage that the federal judge had prevented them from learning that the defendant hadn’t violated state law. In direct response to Judge Breyer’s willful act of concealment, HR 1717, the Truth In Trials Bill, was introduced in the U.S. House of Representatives. To date, it has 32 bipartisan co-sponsors.
Reports of legal misconduct around the country further erode my confidence. (I’m picking on judges, prosecutors and law-enforcement agents, but only because most of us have greater faith in them than in defense attorneys.)
On the word of a single undercover agent — unsupported by taps, tapes or physical evidence — 38 people in Tulia, Texas, were convicted of drug offenses and sentenced to prison terms of up to 90 years. Now, a few years later, the unreliability of that undercover agent has finally persuaded a judge to throw out the convictions. Where, I want to know, was the trial judge’s head when these cases were originally heard? Where were the defense attorneys? And, what does it say about the system if prosecutors can talk themselves into proceeding on the basis of such flimsy evidence?
On June 26, 2003, The Center for Public Integrity (a judicial watch group) reported the results of its nationwide investigation into prosecutorial misconduct. The group found 2,012 such cases since 1970 that resulted in dismissal of charges, reversal of conviction, or reduction of sentence. North Carolina accounted for 120 of those, including the death sentence of James Alan Gell.
Gell was convicted of killing a man whose body wasn’t found immediately. The prosecutor allegedly decided that the murder had happened on the only day Gell could have committed it. But the prosecutor didn’t tell anyone that he had 17 witness statements claiming the victim had been alive after that date.
In addition, a string of news stories — including the reversal of all convictions in the Central Park jogger case only after the five men had served lengthy prison sentences — shows how hard it is for convicted prisoners to get reconsideration based on new evidence of innocence. Former prosecutors hate to take trophies off their walls, and states don’t like paying for DNA tests.
This isn’t just about local yokels, either. Last year, Rep. Dan Burton (R-Indiana) publicized an atrocity directly involving former FBI Director J. Edgar Hoover. Joseph Salvati spent 30 years in prison for a murder the FBI knew he didn’t commit. Hoover was protecting mob informants whom he knew to be active hit men.
Our faith in the purveyors of supposedly impartial “scientific evidence” may be equally misplaced. According to a Washington Post story (Nov. 26, 2001), Oklahoma law officers thought of police chemist Joyce Gilchrist as “Black Magic.” Her testimony led to thousands of convictions over two decades — despite years of complaints by professional peers, judges and defense attorneys. At the time the Post story ran, a review of her work had already “freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year.”
The FBI’s own laboratories and databases may be little better. Repeated scandals about shoddy practices have arisen since 1997. In April, CBS news reported that an FBI scientist had admitted giving false expert testimony about bullet analysis. Another employee resigned while under investigation for mishandling DNA tests. And the Houston crime lab has been barred from sending any more DNA samples to the FBI registry. Concerned about the pervasiveness of such problems, former Illinois Gov. George Ryan placed a moratorium on executions in his state. Other states have followed suit or moved in that direction (in North Carolina, the Senate supported the move, but the House didn’t).
A report cited by the ACLU notes that this year, Florida released its 23rd innocent man from death row. But according to no less an authority than the U.S. Supreme Court, mere innocence may not be sufficient to stay the executioner’s hand. In Herrera v. Collins, the court found: “In any system of criminal justice, ‘innocence’ or ‘guilt’ must be determined in some sort of a judicial proceeding. Petitioner’s showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings.”
In other words, for legal purposes, it’s the outcome of the due process game, rather than actual fact, that determines innocence. Justice Harry Blackmun closed his dissenting opinion with the memorable line, “The execution of a person who can show that he is innocent comes perilously close to simple murder.” The court told Leonel Torres Herrera that he’d have to ask for executive clemency, taking his evidence of innocence to the governor.
Herrera was executed on May 12, 1993. Gov. George W. Bush evidently believed in the infallibility of the Texas criminal-justice system: He granted no clemencies, and more than 150 people were executed during his terms in office.
All these examples, moreover, are drawn from the small fraction of criminal cases that ever goes to trial, because those are the ones in which records were kept. But how likely is it that such affronts to common decency occur only when someone’s taking notes? What about the back-hall and jailhouse chats? So I’m left not knowing what it means when I hear that someone copped a plea. Was it an admission of actual guilt? Or was it the capitulation of an innocent person to a system that can knowingly punish and may even kill without regard for truth?
And if I’m called into that room for potential jurors and have to swear on the Bible to tell the truth, the court won’t like what I have to say. Because our hallowed rule of law has proved itself as corruptible as any other. And with all due respect to the judge and to every man, woman and child who comes before the court, I simply won’t agree to bargain down truth to due process.
[Michael Hopping is a self-employed carpenter and furniture maker who lives in the Riceville area. Before retiring from medicine in 2001, he was medical director at the Blue Ridge Center in Asheville.]