President's Message

What About Justice?
Defining Justice and Its Measure

by Gary L. Bakke

TWO HUNDRED YEARS AGO, lawyers were designing and building a new nation that promised to be the most just in the history of the world. Their medical brethren were using leeches. How does the comparison look today? The medical profession, having embraced research and the scientific method, has been responsible for monumental advances in human health. The legal profession has grafted detail upon excruciating detail onto our fundamental processes to the point that process and procedure has taken on a life of its own, all without any formal study or empirical evidence that we are advancing the cause of justice.

We lawyers are masters of process and procedure - intricate, complex, arcane procedure. We operate with the implicit assumption that a rigid, lockstep subservience to ponderous precedent, process, and procedure assures justice. But we know better. In our daily lives we see unjust results but, hardened by years of battle, we chalk them up as minor aberrations and ignore the possibility that injustice may be at the core of our system.

That brings me to a remarkable program scheduled for our Annual Convention. Barry Scheck and Peter Neufeld, two of the three authors of Actual Innocence, will present a Presidential Showcase Program at our May convention in Lake Geneva. Ostensibly, they will be talking about DNA evidence, but don't be misled. In the broad sense, this program is not about DNA, nor is it about criminal law. It is about our court system, our legal system, our justice system. The DNA contribution to this discussion will not be in the context of how to convict the guilty and exonerate the innocent with powerful new biotechnology. Rather, and more importantly, DNA is presented as a measuring stick by which to gauge the effectiveness of our system. This is the first time in history that we have had an absolute benchmark by which to test the results of our system. The news is not good.

DNA is the ultimate benchmark for those few cases where bodily cells or fluids are evidence of the disputed facts and where specimens have been appropriately collected and preserved. As a wild guess, I would think such cases represent far less than one hundredth of one percent of the disputes handled by the legal system. There is no benchmark for accuracy or justice in that other 99.99 percent of our cases. Therefore, it is critical that we learn about our procedures from these unusual cases where a benchmark test is available.

What have Scheck and Neufeld found? They have analyzed 62 cases where the defendant was convicted of a capital crime and later exonerated by DNA evidence. In 84 percent of those cases where the defendant was wrongly convicted, there had been a positive, definite, and convincing eyewitness identification of the defendant that later was proven to be erroneous. In 29 percent there were two or more mistaken eyewitness identifications. In 24 percent of those cases where the defendant was convicted and later exonerated, the defendant actually had confessed, sometimes to avoid the death penalty. In 24 percent of the cases, the accused was fingered by a jailhouse snitch who won special privileges or a lighter sentence because of his "cooperation." In 90 percent of the cases there was scientific evidence (fingerprints, blood tests, fiber analysis, and so on) that allegedly, but erroneously, supported the conviction; while in 34 percent of the cases, alleged experts had testified to junk science that had no true scientific basis and the results of which could not be independently tested or replicated. In 50 percent of the cases, there had been overt perjury or other serious misconduct by the police. In 42 percent there was serious misconduct by an overzealous prosecutor that ranged from withholding exculpatory evidence to coaching witnesses to lie, to improper arguments. In 27 percent incompetent defense counsel was documented. The totals are much greater than 100 percent because most of the cases analyzed had multiple failures of the system.

The race of the defendant and the victim also had a large role in explaining the wrongful convictions. There is an embarrassingly high correlation of egregious errors and misconduct whenever there are black defendants and white victims. Seventy-one percent involved nonwhite defendants. Race matters.

We can draw several conclusions from the evidence presented by Scheck and Neufeld. And these conclusions should not be limited to serious criminal cases. They apply to our entire adversary system. It appears that once the participants in a trial convince themselves of the correct result, they tend to magnify all facets of the case that are consistent with their conclusions and ignore those that are inconsistent, and, by definition, those conclusions are drawn without the benefit of a fair trial because the trial is yet to be held. It also appears that the mental image of people and events collected by an eyewitness morphs over time to be consistent with other known or supposed facts, and that only after a successful morphing does the concrete of the memory finally set. It is not uncommon for a witness to be much more definite about his or her observations months or even years after an event than they were immediately following the event. Finally, and we have always known this, witnesses lie. Frequently the lie is to further their own best interests, but sometimes there is no apparent motive other than the fun of a lie or to stay in practice for when a good lie will be important.

Problems are not exclusive to the criminal justice system. Roberta Katz, writing about our civil justice system observes: "It is clear - it has always been clear - that the legal system does not function with mathematical precision. Because of differences in legal skills, because of the room for maneuver afforded by rules, and because of the inexact nature of precedent, opportunities for unfairness and injustice coexist with their opposites. But increasingly, Americans feel that civil litigation is not being conducted fairly ... and that this unfairness goes far beyond the 'traditional' and occasional injustices. Over the past few years, many Americans - especially those who have extensive contact with the system - have begun to feel that unfairness is now systemic.1 Remember, for most people perception is reality.

"The present adversarial system has been corrupted and is being devastated by process run amok. In theory, the rules of procedure, evidence, and ethics play only a supporting role, helping to set up and flesh out a fair contest between the adversaries, so that the merits of the case will become clear to the judge and jury. But to the extent that these rules and procedures are now used to harass, intimidate, and carry out a war of attrition against the adverse party, the rules become the substance of the case. This mocks the intent of the adversary system, which requires that the fight be secondary to the merits."2

Recently, I was treated to a mini-debate of a topic that had not previously crossed my mind. Do we have a justice system or a legal system? To the participants in the debate, two lawyers at the ABA convention, the difference was stark. One argued that the goal of the system is always justice and that our procedures must be subservient to that end. The other argued that we have a system of laws and that the predictability of consistent interpretation and application of law and procedure is essential to the functioning of society. Therefore, he argued that in any given instance, if the two are in conflict, law and established procedure must take precedence over justice. That theory must have been uppermost in the mind of U.S. Supreme Court Chief Justice William Rehnquist when he wrote that a claim of actual innocence is not a constitutional claim and therefore, claims of actual innocence cannot be addressed by the federal writ of habeas corpus.3 Do we agree that correctly following the prescribed procedure is more important than determining guilt or innocence? Does the public?

I trust that we have broad, nearly unanimous agreement that the long-range goal of a system of laws is to promote justice, but apparently we have a significant disagreement about the short-range, the individual cases that are resolved in court. When they conflict, what's more important, law or justice? Who decides? How do we decide?

I am truly astounded to find myself in my 36th year as a lawyer confronting for the first time an issue so basic to what I do.

The legal process serves an essential function in civil society. It resolves disputes in a way that is generally accepted by society and that is generally enforceable by the government. But is it justice? I submit that we do not know. We have recently become aware of horrific instances where justice has failed. (Consider, for instance, that 12 convicted capital criminals have been exonerated in Illinois in the last 12 years alone.) But can we draw broad conclusions from this anecdotal evidence? There are divergent views about what constitutes a just result, and we know almost nothing about whether the legal process assures justice or whether it is a sword and shield used to avoid justice. It is extraordinary how little we really know about the quality of justice produced by our legal machinery. Do we care? Maybe, like democracy, our system is the worst in the world, except for all others. Is that good enough?

I suggest that it is time to identify and examine the fundamental assumptions underlying our laws and procedures. The adversarial system should be the government-sponsored way to resolve disputes. Clients are really in control of their cases. A result can be just, regardless of the time and expense invested to obtain it. Lay juries produce better results than would an expert tribunal. Eyewitness testimony generally is reliable. Extensive discovery enhances the quality of the legal result. Jury instructions are helpful. The list could go on.

Our entire system is constructed on these and similar assumptions. Where's the evidence that they are correct? Have we been using the legal version of leeches for 200 years? Remember, leeches made intuitive sense back then. Our assumptions make intuitive sense now. That's not good enough.

In medicine, aviation, automobiles, student testing, or almost any other endeavor, errors like we are seeing in the law would be cause for alarm, intense scientific inquiry, and possibly a Congressional investigation. Strangely, the law seems to be immune, or at least it has been. A few isolated attempts to study and improve our processes have been documented by a recent New Yorker article. Largely we have been uncooperative with these studies and unbelieving of the results.4

We are soon coming to an era when the public will decide that law and justice are too important to leave to the lawyers. We already see signs of concern in unlikely places. Scientific American has published statistics on criminal law, including that 68 percent of all death penalty sentences are subsequently found to have serious error, at least 23 people have been mistakenly executed since 1900, and that the homicide rate is higher in states that have the death penalty than in those that do not.5 Are we ready to defend our system of justice when the public decides that it is unworthy? Should we be?

Individually, we are not in a position to undertake the necessary research, but our institutions are. Law schools, bar associations, court systems, legislatures, and foundations should be addressing these most fundamental of all questions. We have a National Institute of Justice that is a part of the U.S. Department of Justice. This sub-agency has the potential to undertake such research projects but to date has not done so. Maybe we should expect it to play a role parallel to that of the National Institute of Health - research and action to improve the national quality of justice. The question must be, "What is justice and how do we best assure it for all citizens?"

I challenge anyone to read Scheck's Actual Innocence,6 Roberta Katz's Justice Matters7 (a critique of the civil justice system), Atul Gwande's article, "Investigations Under Suspicion," in the New Yorker, and to watch the film "Hurricane" (based on the true-life story of exprofessional boxer Ruben "Hurricane" Carter), and then not agree that we need to take a hard look at the system.

Endnotes

1 Roberta Katz, Justice Matters, Discovery Institute, 1997, p. 29.

2 Katz, p. 73.

3 Herrera v. Collins, 506 U.S. 390 (1993).

4 Atul Gawande, "Investigations Under Suspicion," New Yorker, Jan. 8, 2001, p. 50.

5 "Death Defying," Scientific American, Feb. 2001, p. 28.

6 Barry Scheck, Peter Neufeld, Jim Dwyer, Actual Innocence, Doubleday, 2000.

7 Roberta Katz with Philip Gold, Justice Matters: Rescuing the Legal System for the Twenty-First Century, Discovery Institute, 1997.

Wisconsin Lawyer