5 Anecdotes from the Criminal Injustice System
For a couple of years, I’ve been studying the failures in the U.S. criminal justice system -- perhaps it should be called the Injustice System. In this post, I’m going to give some examples of stuff I read about that has actually happened in our system. I don’t have any big philosophical argument right now, just some stories. If you want to hear some absurdities, read on.
1. Paul Hayes
This is from the case of Bordenkircher v. Hayes (1978). Paul Hayes was a defendant charged with attempting to pass a forged check for $88. (Probably worth a few hundred in today’s dollars.) The prescribed sentence range for this crime at the time was between 2 and 10 years in prison. The prosecutor generously offered to recommend a sentence of 5 years, if Hayes would agree to plead guilty and save the court (and the prosecutor) the time and expense of a trial. Otherwise, the prosecutor said that he would go back and get an indictment of Hayes under an “habitual offender” statute that was then in force.
Habitual offender laws basically provide very long sentences for repeat offenders. E.g., the “three strikes” laws, whereby you automatically get life imprisonment on your third conviction for any felony. Which was the type of law in question here. And Hayes in fact had two prior felony convictions.
Hayes declined to plead guilty and insisted on a trial. The prosecutor, true to his word, added the habitual offender charge. Hayes was then convicted at trial. The judge sentenced him to life imprisonment, as required by law.
Aside: In ethics and legal philosophy, many people think there is a “proportionality” requirement on punishment: a punishment should be about as severe as (or perhaps somewhat more severe than, but proportional to) the crime — an eye for an eye, a tooth for a tooth, etc. What prison term would be about equally harmful as the theft of $88? Maybe a day in jail? Maybe a few days? If you think appropriate punishments can be significantly more severe, change the question to: What prison term would be about 10 times as harmful to the prisoner as the theft of $88 would be to the victim? Maybe a month in jail? Maybe 3 months at the outside?
Anyway, Hayes appealed. He argued that the prosecutor had only added the habitual offender charge in retaliation for Hayes’ requesting a trial, which Hayes had a constitutional right to do. That was undisputed. Hayes argued that it was improper to add charges in retaliation for a defendant exercising his rights.
The case went all the way to the Supreme Court … which ruled in favor of the government. They said it was fine to add charges in retaliation for the defendant requesting a trial, and of course it was fine to imprison someone for life for trying to steal $88.
2. Robert Brady
Background: In the interesting case of U.S. v. Jackson (1968), the Supreme Court struck down a provision in a federal kidnapping statute. The statute provided for the death penalty for certain kidnapping cases, but only if the jury recommended the death penalty. This had the consequence that you could get executed for breaking this law only if you had a jury trial. The Supreme Court held that this was unconstitutional, since the right to jury trial is Constitutionally protected, and the government may not add burdens on the exercise of Constitutional rights.
Robert Brady was a defendant who had pled guilty under the federal kidnapping statute, before the Jackson decision came down. After the Jackson decision, Brady appealed his earlier conviction, claiming that he had pled guilty, rather than requesting a jury trial, because he had wanted to avoid the possibility of the death penalty after a jury trial.
This case went to the Supreme Court as well (Brady v. U.S., 1970). The Court ruled in favor of the government. They said that even if Brady had given up his right to a trial solely to avoid the death penalty, that was still a perfectly voluntary choice on his part. This case is generally taken as the legal basis for the current practice of plea bargaining: it’s fine to threaten someone with additional charges, more jail time, or even death, in retaliation for requesting a jury trial. That’s all totally non-coercive and “voluntary”. They never explained how this was consistent with Jackson. Apparently, it's okay for a prosecutor to place burdens on the exercise of Constitutional rights, just not the legislature.
3. Anthony Crutcher
In 2007, Anthony Crutcher was arrested in Mississippi for selling a total of about $40 worth of cocaine (in multiple transactions) to a police informant. He had two prior drug convictions. In accordance with the sentencing guidelines, he was sent to prison for 60 years.
4. Larry Dayries
Dayries was arrested in 2010 for stealing a tuna fish sandwich from a Whole Foods Market in Austin, Texas. He had gotten the sandwich from the deli counter, then walked out with it without paying. A security guard from Whole Foods followed him and tried to get him to pay. Allegedly, Dayries then threatened the guard with a 3-inch pocket knife, in order to escape with the sandwich (according to the guard; Dayries denies that part). Dayries was later picked up by police and charged with aggravated robbery.
In view of the “aggravating circumstance” (the knife) and his prior convictions for burlary and theft, Dayries was sentenced to 70 years in prison for the theft of that tuna sandwich.
5. Michael Morton
The above people were all (I assume) guilty. Here is one who wasn’t. (https://www.texasmonthly.com/politics/the-innocent-man-part-one/)
In 1987, Christine Morton was murdered in her home in the morning, after her husband Michael went to work. Their 3-year-old son was in the house at the time but was not hurt.
The police quickly hypothesized that the husband did it, and they started questioning him, looking for evidence that he was the killer. Michael, unsuspecting that he was going to be accused, made the mistake of cooperating and trying to answer their questions without a lawyer. (Never do that.)
Michael wound up being arrested and put on trial for the murder of his wife. The key evidence at trial: a government medical examiner testified that the time of death was before the time at which Michael (according to his own statement) had left for work in the morning. Therefore, Michael must have been there when his wife was killed, and so he must have been the killer. The prosecution also played a video clip from a pornographic video that Michael had rented. (This was in the 1970’s, when attitudes were much more prudish, so some jury members were scandalized.) They also used a note that Michael had left his wife, telling her that he was hurt that she didn’t want to watch the video and had just gone to bed instead. The prosecutor claimed that Michael had killed his wife because he was angry that she had gone to bed the previous night instead of watching the video. The jury found all this persuasive, and Michael Morton was convicted.
Many years later, lawyers working for the Innocent Project learned about some evidence that the prosecutor at the time had suppressed.
Background: In our system, the prosecutor is legally required to turn over to the defense any evidence that the prosecutor has that might be exculpatory. But that requirement is generally dependent on the dubious honor of prosecutors, since defense attorneys have no way of knowing what information the prosecutor has that he isn’t revealing. In the Morton case, the judge ordered the prosecutor to turn over to him (the judge) all the case notes from the investigation, so that the judge could verify that there wasn’t any exculpatory information that hadn’t been given to the defense. The prosecutor, however, did not in fact turn over all the notes and information that he had. Some details the prosecutor neglected to mention:
Neighbors had contacted the police to report that they had seen an unknown man park a green van on the lot behind the Morton house on several occasions. A witness had seen the man on one occasion get out of the van and walk into the overgrown area that extended up to the Mortons’ privacy fence. Another witness saw that same van parked there on the morning Christine was killed.
There were fingerprints on the house’s sliding glass door that did not belong to any member of the Morton household.
There was a fresh footprint in the yard.
Christine Morton’s purse was missing from the scene, and her credit card was used at a store 80 miles away, two days after the murder. The police made no effort to find the person who had used it.
The Mortons’ three-year-old son told his grandmother that he saw the “monster” that had attacked his mother, and that his father had not been present.
Finally, a witness found a blue, blood-stained bandana on the ground in a construction area near the Morton house and turned it over to the police; the police did not follow up on this evidence.
When the Innocence Project lawyers found out about this evidence, they moved to obtain DNA tests (paid for by themselves) on the blue bandana. The new prosecutor in office (different from the one who was working at the time of the original trial) fought strenuously against this, claiming that a DNA test would only “muddy the waters” and that the bandana was too far from the crime scene to be relevant.
Fortunately, a judge agreed to allow the tests. The tests found DNA from Christine Morton and one other person (not Michael). The second DNA turned out to match a man named Mark Norwood who had a long criminal record. At this point, the prosecutor still refused to admit that the state had convicted the wrong man, claiming that “there could be many innocent explanations for why DNA is on that bandana”. Only when it emerged that Norwood had committed a second murder with the same MO seventeen months after Christine was killed, did the prosecutor give up his campaign of obstruction.
So Michael Morton was finally released after serving 25 years. The original prosecutor never accepted blame, saying, “In my heart, I know there was no misconduct whatsoever,” and then apologizing for the system’s failure. That prosecutor was disbarred and sent to jail for 5 days – but not for deliberately prosecuting an innocent man, nor for failing to turn over evidence to the defense. No, he was punished for disobeying a judge’s orders to turn over the complete investigation notes.
Because that's what our system is about. It isn't about justice; it's about obedience to the people in power.