Tuesday, April 14, 2009

What ever happened to great expectations?

I've been reading a lot of case law recently. Reading that many criminal cases in a short period of time is really depressing. Appellate courts overlook a lot of trial errors. A lot. It's discouraging to read case after case after case in which the appellate courts find error, but declare it to be harmless. In essence, they're saying, "we know mistakes were made, but we're ok with the outcome so we're not going to do anything about it."

It's so frustrating. What incentive is there for trial courts to avoid mistakes if they know the appellate courts will just declare those mistakes too insignificant to warrant a re-trial? The answer is none, which is why we see the same mistakes happening over and over. Prosecutors make the same improper arguments because they know they can get away with it. Judges take short cuts because appellate courts don't smack them down for not following all the rules.

But we have all these rules and procedures for a reason. And if we don't apply them properly, if we make mistakes, we shouldn't have faith in the outcome, should we? If you were doing a math problem and realized you'd made a mistake, you'd go back and re-figure the answer. Just last night, I had my taxes all done and realized I'd made a math error. I didn't think the IRS would be ok with me just saying, "Eh, I'm still ok with my outcome, so I'm not going to fix it." (The error was not in the IRS' favor.) Just like I'm not ok with realizing just how many mistakes are made and tolerated every day in our criminal courtrooms. I'm not confident that all of those errors really are harmless. I don't trust the outcomes of flawed trials. I certainly think that when taken as a whole, they reveal a system that isn't working nearly as well as we like to pretend.

Here's my thought, courts: if you stop tolerating mistakes, maybe the judges and prosecutors and even the defense attorneys will stop making mistakes! Or at least they'll cut down on them. But if we continue to allow sloppy trials, we'll continue to get sloppy trials. That seems fairly obvious to me.

Remember the movie "Stand and Deliver"? Jaime Escalante teaches calculus to students in the worst part of L.A. Other teachers question him when he says he wants to get them ready for the AP test. The principal told him the students couldn't handle it. Jaime replied, "People rise to the level of expectation we set for them." I agree wholeheartedly. If we expected better trials with fewer mistakes, we'd get them. How do we show that we expect better? By not declaring trial error after trial error to be harmless. Overturn convictions and make district courts re-do trials to get them right. The criminal justice system just needs to have the guts to set the bar higher.

1 comment:

DBB said...

This is something that has always frustrated the hell out of me. I had a rather up close look at this, too.

It particularly irked me just what prosecutors got away with that was clear misconduct that was still found "harmless." At the very least, you'd like to see it as a black mark on their record.

I could put up a whole post on this, and probably will when I get the chance.

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