I met Radley Balko, the author of this piece, at the Atlanta roundtable on the use and misuse of informants. Read Seligmann, one of the wrongfully prosecuted Duke Lacrosse players, says, “I can’t imagine what they do to people who do not have the resources to defend themselves.” Balko uses the current string of exonerations in Dallas County to suggest defendants without resources go to prison. Tulia enters the picture as an example of a wrongful prosecution that didn’t involve DNA (most of them don’t). The newly elected Dallas County DA, Craig Watkins describes the attitude of his predecessors like this: “If you sent someone to jail who was possibly innocent, it was a badge of honor.” Watkins is right. Richard Posner, Chief Justice of the 7th Court of Appeals and highly celebrated legal analyst, exposes the assumptions that make wrongful prosecution such an intractable problem:
I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented. But if we are to be hardheaded we must recognize that this may not be entirely a bad thing. The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendant may be optimal. (This is from his The Problematics of Moral and Legal Theory, pp. 163-164)
Posner’s statement is based on the assumption that few innocent people are wrongfully convicted as a result of poor-to-mediocre legal representation. But the DNA exonerations in Dallas County, the horrific findings at the Houston crime lab, the Tulia case and a host of similar horror stories have obliterated this comfortable assumption. Low status defendants (as opposed to the members of the Duke lacrosse team) are wrongfully convicted because men like former Dallas County DA Bill Hill prosecute defendants in the absence of strong evidence. So long as the perp du jour fits the profile (poor, uneducated, black or brown) nobody in the system (least of all jurors) will care too much about guilt or innocence. A simple cost-benefit analysis suggests that society would be better off if this guy (and as many people like him as the system can arrest) were warehoused behind bars for as long as the law allows. The real crime is fitting the profile in the first place. This explains why the Dallas criminal justice establishment refused to believe that hapless Mexican nationals had been set up in bogus drug deals by crooked cops and sleazy confidential informants.
The election of Craig Watkins is something to celebrate.
Alan Bean, Friends of Justice