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.
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.
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.
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.
Image credit: bloomsberries/flickr