Wednesday, May 22, 2013

My first sort-of book review

A few weeks ago, I received an email asking me if I would like to have a book sent to me for free with the expectation that I would write about said book on my blog. I'm quite the reader (my house will eventually collapse under the weight of my books), so I'm not one to turn down a free book. Anyone who knows me ought to know my opinion can't be bought, certainly not for something as cheap as a hardback book. And, hey, most reviewers don't actually pay for the books they read. So, yes, the book was free, but my opinion is my own. And I can honestly say I probably would have eventually read this book, but I probably would have waited until it was out in paperback to buy it.

I know you're asking, "Geez, Sarah, what's the book already?!"

The book is "Mistrial: An Inside Look at How the Criminal Justice System Works... and Sometimes Doesn't" by Mark Geragos and Pat Harris. Mark Geragos is the well-known public face of the law firm that represented Scott Peterson, Winona Ryder, and Susan McDougal among others. Pat Harris is the lesser known partner in that firm. Each chapter takes a look at a player in the criminal justice system and tries to separate the popular myths from reality. The players are: defense attorneys, clients, prosecutors, judges, police officers, jurors, and the media.

Obviously, this is a book right up my alley. Once I got past my initial jealousy that they are authors of a published book and I am not, I got to reading. As you might guess from the title, the authors wanted to give readers who aren't players in the criminal justice system with a better feel for what actually goes on. They also wanted to point out flaws in the system and some ideas for correcting things. They aimed to do all of this in a conversational manner, rather than taking a more academic tone. So the book is filled with anecdotes and their experiences instead of lots of big picture data.

I'm not interested in talking about the writing, because it was perfectly serviceable writing. It isn't bad, nor is it stand-out spectacular. I will say I'm not sure how much I loved one little quirk of the writing. In each chapter, there would be small sections of italicized print that was one of the authors' personal comments. I wasn't sure why they used this technique. Was the other author not signing on to whatever was being written? Or were they just trying to make certain sections seem more personal? I wasn't sure how I was supposed to take these sections.

As for the content, to a large extent with me, it was an awful lot of preaching to the choir. (Sorry; it had to be said.) I agree with their complaints about prosecutors over-charging cases as I see it myself regularly. I agree that the tough on crime crowd has actually weakened the effectiveness of the criminal justice system. I agree that we incarcerate too many people and that sentences are getting too long for low-level crimes. And, yes, I fear that prosecutors are becoming less willing to negotiate, less willing to listen to the defense, and generally feel more entitled to a conviction just because they've filed a charge. Finally, random digs at Nancy Grace and her ilk are always appreciated by me. Nancy Grace is a bad woman and her show is a scourge on society. They also throw in digs on Ann Coulter, Wendy Murphy, and Keith Ablow, which I enjoyed.

The problem, though, is that I'm not the audience they needed to convince. They already had me on their side, as I have personal experience with all of the complaints they make in their book. The complaints are valid, but by being limited to their own anecdotal experience, they might seem self-serving to the lay reader. (Indeed, I found the phrase "self-serving" in a review I saw on goodreads.) I would love to think the book would reach some people and make them wonder if a new approach in the criminal justice system wouldn't be a good idea, but I fear the book will be too easy to write-off for people who are inclined to think defense attorneys are scum who represent scummier scum.

I do have a few little nits to pick, just because that's how I am. In the chapter on defense attorneys, they attempt to dispel the myth of the poor, sad underdog prosecutor. I say attempt because I don't know if people who aren't poor, sad underdog defense attorneys believed that section. (It's true. Prosecutors almost always have way more resources than the defense.) Anyway, on p.47, they write, "judges regularly lecture jurors that the accused is presumed innocent until the prosecution proves that he or she is guilty." [emphasis mine] My fellow Kansas defenders know what my beef with that sentence is. It's not until! It's UNLESS!!! Defense attorneys in this state spent a long, long time arguing for this change in our jury instructions and we ultimately prevailed. Until presumes that there is a point where the prosecution will prove the defendant's guilt. Unless does not. So defense attorneys in California, if your judge is instructing juries using the word "until," email me and I'll send you the issue, complete with the Kansas Supreme Court decision that said, "yes, the instruction should be unless, not until."

(If that seems nit-picky, keep in mind that lawyers regularly argue over word choice because we're trying to instruct juries as carefully and accurately as possible. Specific word choices matter a great deal. No one's conviction ever got overturned on the unless/until issue, but we did get the jury instruction changed so jury's hear a better instruction now.)

My second beef: The authors mention the case of Ronald Cotton, a man who was wrongly convicted of rape almost entirely on the very well-meaning but very wrong eyewitness testimony of the rape victim herself. When the real rapist was finally identified through DNA testing (a decade later), Mr. Cotton and the victim went on to become great friends who wrote a book together and work to teach people about the dangers of eyewitness testimony. Before he was exonerated, Mr. Cotton was actually convicted twice because his first conviction was overturned on appeal. And here comes my beef with Geragos and Harris. They actually refer to the flaws in his first trial as "legal technicalities." (p.212) GAH!!! I hear that obnoxious term, "technicality," from non-lawyers, but I really expect better from my fellow defenders. In Mr. Cotton's case, the first conviction was overturned because the prosecution had been allowed to introduce evidence of another rape (also not committed by Mr. Cotton). That evidence had no business being admitted at trial and was highly prejudicial. I might allow my beloved unless/until argument to be considered a "technicality," but the admission of totally irrelevant, highly prejudicial evidence at trial is not some silly technicality. It's a pretty substantive flaw in a trial.

Of course, they also wrote many, many, many sentences that I agreed with. Yes, we have all joked that the job would be great without clients (p.64). I do sleep very well at night (Chapter Two). They also made me realize how fortunate I am to practice in this state. Many of the closing arguments they complained about prosecutors routinely making at trial (pp.136-139) just aren't allowed in this state. These authors complained about these arguments for very good reason, which is why our courts don't allow many of them. It's got to be rough in states where anything seems to go in closing argument.

The final chapter of the book offers the authors' suggestions for ways to improve the criminal justice system. Some I would never have thought of as being major issues (like the idea to inform juries of the concept of jury nullification, which has never factored in to any case of mine). Some I'm not sold on (like professional jurors or more jury sequestration). Some I wholeheartedly agree with (improved eyewitness identification protections and revision of prosecutorial immunity.)

As it stands now, prosecutors are nearly entirely immune against civil judgments (or any consequences, really) for their misconduct that leads to wrongful convictions. Even willful, intentional misconduct is immune. Prosecutors fear that opening themselves up to civil lawsuits for missteps in investigations and prosecutions would have a chilling effect on them. I completely concur with authors' response, "We hope so!" (Ok, I added the exclamation point.) We should take steps to discourage prosecutors from withholding exculpatory evidence, from intentionally allowing racial bias to enter into jury selection, and from committing all sorts of other misdeeds.

One major suggestion that usually comes up that isn't in this book is the creation of independent crime labs, which would remove the science from the influence of police and prosecutors. I found it curious that the flaws inherent in having the crime labs be part of police departments never came up in the book. Are crime labs in California independent? Is there some other reason why this concern isn't on their radar?

This book works best when they're telling war stories, at least for me as I love a war story. The description  of the first time they met Michael Jackson was particularly intriguing. I enjoyed the insight into the Susan McDougal case, too. (Fun fact: At the time of the Whitewater Kenneth Starr nonsense, Harris was engaged to McDougal.) I would also dearly love to sit down with them over dinner and chat about Scott Peterson. Geragos promises that if anyone gives him 10 minutes to dispel the myths and Nancy Grace-fed rumors about that case and hear the real facts, he'll have that person seriously considering the possibility that Peterson is innocent. I've always had serious qualms about that case and share the authors' perturbation at the rise in charging people based not on evidence but on the fact that they didn't "act right" after the crime. Though if you think this book is about those big cases, you'll be disappointed. The big cases, and the lesser-known ones, aren't the subject of the book; they're just peppered throughout to illustrate the authors' points.

In the end, I think my fellow defenders will enjoy this book and relate to an awful lot of the specific points made and anecdotes told. Prosecutors will largely hate it and might well wonder why there aren't any acknowledgements of how defense attorneys contribute to flaws in the criminal justice system?! (It's because we are the least powerful players in the system and so the only real way we contribute to the problem is by being too overworked and burnt out to challenge some cases the way they should be challenged.)

As for lay readers, I hope they'll read this with an open mind and not see this as a self-serving rant by two particular defense attorneys but think about the flaws they're trying to point out. Will it help if I vouch for most of what they complain about?

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