The Evils of Inconsistent Prosecutions

The Evils of Inconsistent Prosecutions

The New Yorker consistently puts out some of the best long-form criminal justice articles around. The recently published “Two Murder Convictions For One Fatal Shot” is particularly jarring. It personifies the concept of “inconsistent prosecutions” — that is, when the government can’t figure out who did a specific crime, they charge and present different cases at multiple trials against different defendants for a single crime that could only have been committed by one person. In other words, the state will argue one theory, and then at a subsequent trial (after a conviction), they will argue a different theory to convict a second defendant. Inconsistent prosecutions can often end with two people convicted for one crime that could only have been convicted by one of them.

On its face, it’s hard to imagine a less moral function in our legal system. Inconsistent prosecutions seem to be almost always used in accomplice liability — i.e. one person pulled the tigger but more than one person was involved in the overall scheme, and the state can’t figure out who committed the most serious offense — but when a person’s life is on the line for a murder conviction, it’s still unfathomable how this prosecutorial tactic still exists today. It speaks to an all-too-common attitude among prosecutors that a criminal trial is a game, and all that matters is winning it. To wit:

More often than not, judges who are confronted with inconsistent prosecutions have affirmed convictions, while, at times, expressing distaste for the tactic. The descriptions applied by judges include “unseemly,” “unseemly at best,” “troubling,” “deeply troubling,” and “mighty troubling.” “The state cannot divide and conquer in this manner,” a federal appeals-court judge wrote in one Georgia case, in which the court threw out a defendant’s conviction on other grounds. “Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.”

The entire article is worth a read. I’ll be digging into this Columbia Law Review article on this subject in the coming days as well.

“The List”

“The List”

Imagine having your entire life ruined when you were eight-years old for an action that you could not conceivably understand. There are a multitude of injustices associated with the sex-offender registry, but perhaps none more poignantly addressed than in this Sarah Stillman New Yorker article from a few months ago that struck a nerve with me.

Leah DuBuc was a gregarious child. Plump and pleasant-looking, with ginger hair and freckles, she took the crown at the Little Miss Summer pageant, in lakeside Pentwater, Michigan, belting out “You Are My Sunshine”; she brought the same gusto to gardening and tap-dance recitals. Leah’s troubles began when she was eight and her parents got divorced. Her father remarried and won custody of her and her little sister; her mom, mired in personal issues, was granted supervised visits with the girls at the local Dairy Queen. DuBuc was now sharing her old home with her stepmother and her four children—three boys and a girl.

“I’d never had brothers before, and I was curious,” DuBuc told me. One afternoon, after watching movies with her new step-siblings, ten-year-old Leah mimicked having sex with them—“like we’d seen in the movies,” she says—and then, by her account, exposed herself to the younger kids. It happened several more times, she said.

Later that year, DuBuc recounts, a law-enforcement officer visited her elementary-school class and told the students to inform a trusted adult if they had been subject to abuse. DuBuc remembers complaining to him about mistreatment at home; when authorities arrived to investigate, she says, they learned of her sexual misbehavior. According to another family member, however, one of DuBuc’s step-siblings talked about her actions to a therapist, who then alerted the authorities. (As is often true in such cases, the details may be impossible to establish definitively.)

Amid extensive therapeutic interventions, DuBuc was charged with eight counts of criminal sexual conduct, in the first and second degree. The prosecutor, Marilyn Bradford, insists, “There were a lot of scary things that happened to the victims in the case—ongoing things that happened to the little siblings.” But DuBuc’s court-appointed clinical social worker, Wendy Kunce, noted that at the time “there was a history of ‘charging large.’ ”

At the age of twelve, DuBuc arrived in juvenile court for a series of hearings. Her father, a mechanic, drove her to the courthouse, but he didn’t fully grasp the implication of the charges. (DuBuc’s interviews with authorities often occurred without the presence of a parent or a guardian.) Moments before stepping in front of a judge, DuBuc met with her court-appointed attorney, alone. She remembers giggling when she had to say the words “penis” and “vagina,” and when her fingerprints were taken, she told me, “I felt like I was in a movie.”

DuBuc recalls the court-appointed attorney explaining that if she pleaded guilty to two counts of criminal sexual conduct—a graver crime than the one that she says she committed, because it involved penetration—she’d be taken from her home. Given that she wanted to escape the difficult conditions there, she agreed. DuBuc’s investigating officer, Deputy Sheriff Mike Capra, told me, “I think she was hoping to make it easier on everybody by avoiding a long, drawn-out process and saying, ‘O.K., I goofed up, I’m a kid, I’ll learn from it and move on.”

In April, 1997, the judge ordered that DuBuc be sent to a residential juvenile-sex-offender treatment facility in Manteno, Illinois, called Indian Oaks Academy, where she stayed for nearly two years. An adult could have gone to prison for life, the judge warned, and, as she recalls it, proclaimed her a “lucky girl.”

The horror of sex crimes cannot be understated, but nor can the horror of rendering what is essentially a life sentence to a child who couldn’t possibly know any better. And it is a life sentence — anyone on “the list” is constructively barred from being employed in any job beyond entry level, no matter how brilliant or adept, having a family (don’t tell me you didn’t vet your significant other online), renting property, or living near parks/schools/etc.

There’s often outrage when criminal punishments seem lenient; I would argue that a compassionate approach to the law, especially for those who are over-punished, produces a better society.

Fixing the Eyewitness Problem

Paul Kix’s riveting feature in the New Yorker today is one of the best things I’ve read in awhile. Far too often in today’s system, it’s easier to score political points by being “tough” on crime than being “smart” on crime, and the collateral damage is unimaginably tragic. I suspect this is one of the unfortunate aftereffects of all the reform in the 1990s to address the violent crime issues of the day.

In a dissenting opinion in 1981, Supreme Court Justice William Brennan wrote that “eyewitness identification evidence is notoriously unreliable.” Dozens of scientific studies support this claim. Nevertheless, eyewitness testimony continues to be used widely, and many criminal cases hinge on it almost exclusively. Since 1989, two hundred and eighty people have been exonerated of sexual-assault charges in the U.S. Nearly three-quarters of those wrongful convictions relied, in whole or in part, on a mistaken identification by an eyewitness.

Psychologists have long recognized that human memory is highly fallible. Hugo Münsterberg taught in one of the first American psychology departments, at Harvard. In a 1908 book called “On the Witness Stand,” he argued that, because people could not know when their memories had deceived them, the legal system’s safeguards against lying—oaths, penalties for perjury, and so on—were ineffective. He expected that teachers, doctors, and politicians would all be eager to reform their fields. “The lawyer alone is obdurate,” Münsterberg wrote.

It’s for people like Tim Cole that organizations like the Innocence Project exist and are worth our time.