When Justice Becomes Mere Technicality

America's wars on drugs and terror have left its citizens with little recourse against a system that serves not its people so much as those in power

Traditional law-and-order, lock-'em-up-and-throw-away-the-key advocates have always harbored contempt for legal technicalities -- by which they mean the Fourth, Fifth, and Sixth Amendment rights of the accused. But those rights have been eviscerated in the last 30 years. The war on terror delivered the coup de grace to any fundamental privacy and fair trial rights left intact by the war on drugs. These days, legal technicalities are more often invoked by judges and especially prosecutors -- not to imprison the guilty but to keep the not guilty from going free.

"A claim of actual innocence is not itself a constitutional claim," the late Chief Justice Rehnquist declared in a notorious 1993 death penalty case, rejecting a habeas petition based on evidence of innocence uncovered after the defendant's conviction of capital murder. As Justice Scalia observed in concurrence: "There is no basis ... for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." In this view, as long as the state observes all procedural niceties (or technicalities), it is empowered to execute people who, on second thought, seem innocent. The state is not required to entertain such inconvenient second thoughts.

This is a highly academic approach to justice (first-year law students learn that appellate courts review questions of law, not fact), but there's nothing academic about the injustice it engenders when rigidly applied. Take the case of Richard Rosario, featured by New York Times reporter Adam Liptak. Rosario was convicted of a murder in the Bronx solely on the basis of questionable eyewitness testimony, despite the existence of what Liptak calls "powerful evidence" that he was in Florida at the time. His lawyers neglected to pursue his alibi witnesses, and Rosario's appeal asserts a Sixth Amendment claim of incompetent counsel ("powerful evidence" of his innocence has, after all, been deemed legally irrelevant). He lost his claim for relief in state court. Federal judges agreed that he had not received effective assistance of counsel under federal rules, but the courts denied his petition anyway, deferring to New York State's more forgiving standard of ineffective counsel.

This is a judicial system that has stepped through the looking glass. Judges grapple with arcane procedural complexities to decide whether Richard Rosario will serve out his 25-year to life sentence (imposed back in 1996) while ignoring the simplest facts belying his guilt and ensuring that no trial court will ever have a chance to consider them. The Supreme Court will hear Rosario's appeal next week, and I wish him luck.

Still, perhaps the primary culprit in this fiasco is not the judiciary but the prosecution. Bronx District Attorney Robert Johnson opposes Rosario's appeal, not surprisingly. No litigator likes to lose, in trial or appellate court, and prosecutors generally defend their convictions, whether rightly or wrongly obtained. You could rationalize the defense of wrongful or highly suspect convictions as a requirement of the D.A.'s role in an adversarial system. But you would be wrong. Prosecutors enjoy broad discretion, which they're supposed to exercise in the interests of justice, not the interest of their conviction rates.

Tell that to the FBI and U.S. Attorney who successfully obtained or extorted a plea from Craig Drimal (in the Galleon case) after a federal judge refused to sanction the prosecution for grievous and gratuitous violations of privacy in conducting surveillance -- violations described in chilling detail by The Wall Street Journal: The FBI illegally monitored intimate conversations between Drimal and his wife regarding their relationship, marriage and children. The judge deemed the agents' conduct "nothing short of disgraceful," but effectively rewarded them for it; he declined to exclude evidence of the wiretaps, essentially treating the government's "disgraceful" behavior as a mere technicality.

Neither the gross misconduct of law enforcement agents in this case nor the judge's willingness to tolerate it is uncommon, veteran defense attorney Harvey Silverglate observes. Silverglate's recent book, Three Felonies a Day, chronicles the injustices wrought by a vague, voluminous federal criminal code in the hands of prosecutors and FBI agents with virtually unchecked power, enhanced by a harsh sentencing scheme that enables the extortion of guilty pleas and not necessarily reliable testimony from defendants turned cooperating witnesses. How does the system work? Evan Ratliff's recent New Yorker article details the FBI's knowing use of a criminal-turned-informant to ensnare someone with no criminal record or apparent prior tendencies in a white collar crime, on a technicality. As Silverglate observes, federal law enforcement agents have turned federal penal law into "a trap for the unwary... innocent conduct gets swept into the category of crime ... Citizens who believe that they are law-abiding may, in the eyes of federal prosecutors, be committing three felonies each day." It's the cruel triumph of legalism over justice.