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Simplifying the Juror Accuracy Analysis
Anne Reed at Deliberations wrote today about Spencer's analysis of the NCSC study data, summarizing some of the reactions across the blawgosphere. Having slept on the report, I'll address a couple of the criticisms.
First, jury critics call for an end to the jury system. This analysis does not support that. Spencer estimates that juries are 87% accurate by assuming that judges are equally accurate. The analysis does not show that judges ("experts") are as accurate as juries, much less that they are more accurate than juries.
Second, jury fans criticize Spencer for deciding what juries are right and what juries are wrong. This criticism is inappropriate. This 13% inaccuracy does not depend on whether we are interested in legal (procedural) guilt or factual ("omniscient") guilt. If we make three assumptions, the accuracy of juries can be mathematically estimated, using nothing more than high school math.
Statistical Support for the Sixth Amendment
The criminal defense world is abuzz over this analysis (PDF), which estimated that juries in a recent National Center for State Courts (NCSC) study reached "accurate" verdicts only 87% of the time. In the 290 cases analyzed, the author, Bruce D. Spencer of Northwestern University, estimated that 10% of convictions were wrongful, and that the chance of an innocent person being convicted was 25%.
Spencer makes it clear: the NCSC study "should not be regarded as a representative sample with respect to jury accuracy." In fact, the NCSC study doesn't say anything about cases outside the study: "the statistical inferences do not extend outside the cases in the NCSC study." I know that it's fun to do so, but the author deprecates the use of his analysis to draw conclusions about juries overall. My comments on Spencer's estimates apply only to the 290 cases included in the NCSC study.
Spencer isn't a lawyer, so he's looking at the system from an outsider's frame of reference. What he's trying to establish is the probability that a factually innocent person was convicted, and that a factually guilt person was acquitted:
Chaos and the “Official Woman”
Scott Henson (Grits For Breakfast) gives us this post describing Twila Hugley Earle's speech to the Restorative Justice Conference in Kerrville. Earle spoke of the application (or, maybe more accurately, analogization) of chaos theory (Scott defines it as "the study of how turbulence transforms into order organically") to criminal justice:
The Newtonian worldview sees both change and order mechanically, but reality is more dynamic. Chaos theory offers an alternative.
Because I haven't studied chaos theory, I don't quite grok Earle's idea yet. But I understand it well enough to know that there's something there - that a linear, Newtonian, cause-and-effect model doesn't accurately describe human behavior, and that our system based on that model isn't doing a very good job of dealing with the problem of crime.
Meanwhile (and perhaps related only in my chaotic brain) Scott Greenfield (Simple Justice) gives us this post about dealing with Jimmy Breslin's "Official Woman." The Official Woman is someone (male or female) who:
Free Legal Advice
I'm not the only one giving away million-dollar legal advice. Stephen Gustitis blogs here about what to do when you're arrested, and Scott Greenfield follows up here with his thoughts, including why peoplr spill their guts after demanding a lawyer:
This may be the gestalt need to explain oneself, by adding something like "I'm in enough trouble already and I don't need to make it worse by talking to you about the crime." Or this may be the mistaken idea that by uttering the magic words, they get a free pass on whatever comes next, so they then spew a total confession (or worse yet, some smart-alec version) thinking that the cops can't use it because they invoked their right to counsel.
I wrote here about what happens when criminal-defense lawyers' best advice is followed.
Federal Cases: “But I've Never in Trouble Before”
When my federal criminal defense clients and I are discussing the possible punishment (using the sentencing guidelines as, well, guidelines) that they might receive if they are convicted, they are often shocked. The sentences seem severe for first-time offenders. "But Mark," they often say, "I've never been in trouble before. Can we get the sentence reduced because I've never been in trouble before?"
The sentencing guidelines presume that the person being sentenced has never been in trouble before. So, generally, do the statutory minimums. When we say that the statutory minimum for possession with intent to deliver more than five kilograms of cocaine is ten years, we are saying that the appropriate penalty for somebody who has never been in trouble with the law - indeed, has never broken the law - until becoming involved in a smallish cocaine conspiracy is ten years in prison, regardless of his role in the offense.
There are two narrow circumstances in which a person convicted of a 5-plus kilogram cocaine conspiracy in federal court can avoid the ten-year statutory minimum. The first is to cooperate with the goverrnment, providing "substantial assistance" (and only the government gets to decide what substantial assistance is in a particular case).
A Criminal Case is a Lawsuit in which the Government is Suing a Person
I talked here about the beginning of an understanding of the American criminal "justice" system, the principle that "legal" doesn't mean "right" and "illegal" doesn't mean "wrong."
After "illegal ? wrong," the next principle that needs to be recognized for an understanding of the American criminal "justice" system is this:
A criminal case is a lawsuit in which the government is suing a person.
The idea is that every crime is a crime against the government. In Texas, for example, all charging instruments allege that the offense was committed "against the peace and dignity of the State." This idea - that a crime is an affront to the crown, and that it must be punished by the crown's men - is as ancient as the common law.
If one person injures another and the government doesn't think that a law was violated, the government won't sue the person who caused the injury.
If the government thinks that person violated the law, it will sue the person even if nobody was injured (most crime fits this pattern).
Right v. Wrong
An understanding of the criminal "justice" system has to begin with this:
The criminal "justice" system is not about "right and wrong."
"Right and wrong" and "legal and illegal" are entirely separate concepts. "Right" and "wrong" are moral terms, not legal terms. The fact that something is illegal does not make it wrong, and the fact that it is legal does not make it right. (Flipping those two propositions, the fact that something is right does not make it legal, and the fact that it is wrong does not make it illegal.) Something that is wrong and illegal does not become right if it's decriminalized. Something that's right and legal doesn't become wrong if it's criminalized.
Technorati Tags: criminal defense, definitions, philosophy, the system
Who Are You Helping, and Who Are You Hurting?
Today an anonymous prosecutorial commentor wrote, in the comments to my Support the Troops - Acquit a Vet post (and directly in response to my saying, "I'm not worried about people losing faith in the criminal justice system. Anyone who has faith in the criminal "justice" system is either on the government teat or oblivious":
Do you not accept or recgonize views alternative to your own? It's yoru blog, so of course you can say what you want. Like my Dad always says "it's America"Let's say you have a violent offender who has robbed and seriously injured someone to the point they had to go to the hospital or someone who has violently raped another person. Extreme examples, but bear with me. In your world view what would you like to see happen? You have victims who want justice, retribution, what have you. Do we go back to the Old West and round up a Posse to go after the offender? Do we resort to vigilantism and let things work themselves out? We have laws going back to Moses on the Mount, that state how we should interact with one another. Assuming you think that laws are a good thing, should they not be enforced? Understand I'm not talking about drugs, DWI, etc. I'm talking about my examples.Those victims deserve a fourum and the right to be heard. They have an expectation that the person who wronged them will be held accountable. That doesn't make them oblivious. Whether the jury finds them guilty or aquits, they're still doing their duty, it's still Justice.
Us v. Them: A Prosecutor's Perspective
A prosecutor who wishes to remain anonymous has this to say in response to my Us v. Them II post of last week:
I do think that Mckinney's statements were too harsh, especially the part about how ADA's prosecute the innocent. Currently, I only deal with robbery cases and violent serious assaults. Regardless of the outcome, there are no real winners. Some of the cases involve "real" victims, People who have been wronged in some way. When we (ADA's ) go to trial, we are saying that you will be held accountable for your actions. Does that mean that all defendants are evil wicked people who can never repent? Of course not. It means that you have to follow the rules of society like everyone else. Everyone deserves to be safe in their home or to be safe while they're walking down the street.We don't prosecute the innocent. I have never gone to trial on someone I thought was not guilty. That is an important statement. It doesn't mean I think everyone charged is guilty. Our elected D.A. gives us wide discretion in how we handle cases. I have dismissed plenty of cases b/c the evidence wasn't there to proceed.
Occam's Razor in the Criminal Courthouse
Occam's Razor (Wikipedia) is the principle that, all things being equal, the simplest solution tends to be the best one. Occam's Razor suggests how a case should be defended (as simply as possible - see Scott Greenfield's "The KISS Principle" post prescribing a "surgical" approach to defending criminal cases); it also can help predict how successful a defense will be.
When you have a criminal case to defend, every piece of evidence will fall into one of three categories:
Things you contest ("no...");Things you explain ("yes, but..."); andThings you accept ("so what?).
For example, an alleged witness says that she saw your client at the scene of the crime. You can contest this (challenging the witness's credibility and presenting alibi witnesses to say, "No, he wasn't"); you can explain it ("Yes, he was there, but not for the reasons the State supposes); or you can accept it ("Yes, he was there. So what?").
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