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Bringing Justice Back to the Land of the Free

In the United States, prosecutors win 99.5 per cent of their cases, and of those, 97 per cent are without trials. Hardly anyone has a chance. The convictions of centimillionaires Alfred Taubman and Martha Stewart were just as much a mockery as the lynching of the Central Park Five.

There is something to celebrate in George Will's recent column expressing pleasure at the vindication of the Central Park Five. And it is a welcome event that such eminent film-producers as Ken Burns, Sarah Burns, and David McMahon have made a compelling documentary about the incident. On April 19, 1989, a 28-year-old white woman who worked for one of the major merchant banks in the financial district of New York. but lived in mid-town, went jogging just after sunset and was "wilded" -- in this case, attacked by a group of five young allegedly African-American individuals who raped her, beat her with lead or steel pipes, and gave her up for dead.

After a lengthy struggle with all the breakages and trauma of this terrible assault, she made a complete recovery and courageously wrote a book about her experience. She had to give very personal testimony about her sexual relations with her male companion at that time (though she was jogging alone), and was reviled as she came to be labeled by that upstanding man of God Al Sharpton and some of his followers as a "whore," as if jogging in one of the world's most famous public parks was a provocative enticement to rape and attempted murder.

It has since come to light that the five young men convicted were innocent -- that they were foxed by intensive interrogation into confessing to the crime, because their responses to interrogation were different in some respects from each other's, and the police convinced their families or them personally that they would be convicted and very severely sentenced if they did not plead guilty.

George Will quite rightly laments that better public defenders are not provided for relatively legally inexperienced people who do not have the means to arrange and pay (the normally rapaciously high legal bills of) serious defense counsel. Of course, none of this reduces in the least the gravity of the horrible crime the young woman suffered. She didn't prosecute the innocent defendants, the local prosecutors did, under heavy pressure to find and convict the authors of the heinous crime which was widely proclaimed at the time to be indicative of the general moral and social decay of New York.

The producers and George Will are absolutely correct that it was a terrible railroading of innocent people, and in Will's column they are poignantly quoted on the impact on their lives of having been wrongfully imprisoned. But there are a staggering 48 million Americans with some sort of criminal record, and at least 10 million of them were innocent and 20 million more grossly over-sentenced.

True and graphic and useful though this documentary is, all this somewhat misses the point. In the United States, prosecutors win 99.5 per cent of their cases, and of those, 97 per cent are without trials. As with the Central Park Five, police and prosecutors exploit the fact that they are almost certain to win, regardless of the facts, and in the American system, those who exercise their constitutional right to a day in court pay for it with four times as stiff a sentence when convicted.

In Great Britain, prosecutors win a little more than 50 per cent of their cases, and in Canada rather more than 60 per cent, and in both countries, sentences are on average, for most offenses, less than half what they are in the United States.

I'm afraid it will not do for George Will merely to express the hope for better public defenders. In fact they are often stooges of the prosecutors. They are paid for the number of people they claim to represent, not because of the quality of service they provide. They few no resources and their career interest is best served in not irritating the omnipotent prosecutors. They are only provided at all because the Clarence Gideon case caused the U.S. Supreme Court to declare that everyone was entitled to counsel in a criminal prosecution.

What has resulted is a pro forma regime of the rule of law. But in fact, many judges are ex-prosecutors, and hardly anyone really has a chance. It is a myth that the rich do much better than the people of modest means. The prosecutors claim their wealth is ill-gotten gains and freeze it, pending the criminal case, so they have trouble mounting a defense.

The convictions of centimillionaires Alfred Taubman and Martha Stewart were just as much a mockery as the lynching of the Central Park Five. The public defenders should be completely independent and properly funded and should be serious lawyers. There should not be any penalty for electing to try a case rather than plead it out. The infamous plea bargain, in which inculpatory perjury is routinely traded for immunity or a reduced sentence, should be banned and penalized by disbarment.

Evidentiary and procedural treatment should be equal for both sides, and the defense should speak last to the jury as it does in every civilized country in the world except the U.S. Media pre-trial lynchings by the likes of Nancy Grace should be banned and prosecuted, and jurors should be properly instructed and entitled to consult the transcript. The majority of judges should not be ex-prosecutors.

There should be a fast track for getting rid of catchment laws that are impossible to defend, the prosecutors should not be allowed to bring an excessive number of counts on the same facts, as is their practice, and where most counts are acquittals, all surviving counts should be retried. Prosecutors,while they have to be able to do their jobs, should not have an absolute immunity, as the Supreme Court gave them in the infamous Thompson case two years ago when it threw out a $14-million award to an appellant who served 14 years on death row while prosecutors willfully withheld exculpatory DNA evidence.

Nothing less than this will rescue the U.S. criminal justice system from the disgraceful stacked deck that now gives that country six to twelve times as many incarcerated people per capita as Australia, Canada, France, German, Japan, and the United Kingdom. This documentary and George Will's column are a welcome start, but that's all they are, in what will be an uphill struggle to turn the land of the free back into the society of laws James Madison and the other authors of the now inoperative Bill of Rights intended.

U.S. Supreme Court Justices

Chief Justice John Roberts

Supreme Court Justices

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