What’s Not Wrong with the Justice System?
I recently published Justice Before the Law (https://www.amazon.com/dp/3030675424/), in which I describe several major injustices in the U.S. legal system. Toward the end of the book, I became concerned that readers might draw the conclusion that the system is completely worthless. Some might be unaware of all the things that are going right in the legal system, and they might wrongly think we should trash the entire thing.
I had similar worries recently, seeing reactions to the Rittenhouse trial. I saw people condemning the verdict who did not appear to have seen the trial, nor to know the facts of the case. It appears that our justice system is held in so little regard by average intellectuals that they’re ready at the drop of a hat to conclude that justice has miscarried “yet again”, without needing any evidence beyond what some talking heads on TV said. This struck me as deeply misguided.
Aside: It is increasingly common for people to form crazy opinions due to their having no sense of what are and are not reliable sources. E.g., people who think the Covid-19 vaccines are dangerous because some conspiratorial internet site told them that. They believe the internet site over the medical community. That’s similar to the people who trust journalists over the court system.
The U.S. justice system, flawed as it is, is much, much more trustworthy than pundits in the U.S. media. I won’t repeat all my critiques of the media (see https://fakenous.net/?p=105, https://fakenous.net/?p=2675, https://fakenous.net/?p=2620). Let’s just talk about the court system.
Juries > Pundits
The trial by jury is the most reliable way we know of determining guilt or innocence. The jury selection process eliminates anyone with obvious biases. We then have experts in law and argumentation present the case for and against conviction over the course of hours, days, or even weeks – however long it takes to present all the relevant evidence that both sides can come up with. Each side gets a chance to rebut all the arguments given by the other side. The 12 jurors listen to all of this. Then they deliberate with each other until they reach a unanimous agreement.
Now, there are some problems with the system. E.g., sometimes unscrupulous lawyers get qualified people excluded from the jury. Sometimes the jury isn’t smart enough to understand all the evidence. Sometimes the lawyers use rhetoric that plays on the jurors’ emotions. And, perhaps the biggest problem, sometimes the law is unjust, and yet the judge instructs the jury that they have to apply the law regardless.
Nevertheless, the above is still a pretty good system for most cases. Here is how this is better than the opinions of media pundits:
1. The jury listens to the evidence. They’re forced to sit there the whole time. Media pundits, by contrast, listen to 30-second soundbites from other media pundits before spouting off their own uninformed opinions. If you’re under the impression that the news reports you see are based on diligent and honest investigation, you’re living in a fantasy land. Think of the media rather as high school students throwing together their book reports at the last minute based on what other kids told them, based on the cover of the book.
2. The jury is relatively impartial. They don’t have any self-interested incentives either to convict or to acquit – e.g., they don’t stand to make or lose money depending on how they find. Media pundits, by contrast, are part of a business based on capturing attention and selling it to advertisers. If their story captures attention, they make money. If not, then not. Most media outlets also play to an audience with a specific ideological orientation.
3. The jury verdict has to be unanimous. 12 ordinary people, more or less randomly selected, have to agree. By contrast, individual media pundits can just say whatever they feel like. Furthermore, media pundits are not ordinary people; they are selected for attracting attention, pushing people’s emotional buttons, etc.
#1 is the most important point. If you disagree with a verdict, but you did not watch the trial, then the most likely explanation for your disagreement with the jury is that they heard the evidence and you did not.
That was certainly the case with the Rittenhouse trial. The jurors weren’t a bunch of white supremacists. (Think how unlikely it would be to find 12 white supremacists, especially with prosecution lawyers on the watch to exclude anyone with pro-defendant biases.) They were random, ordinary people doing their job as jurors. They found Rittenhouse not guilty because that’s what the evidence – the real evidence, not the news media inventions – dictated.
Why Are We Suspicious of Juries?
Elites vs. the Vulgar
Why don’t people trust juries? Some of the same people who insist that you should trust the experts in medicine (e.g., on vaccine safety & effectiveness) refuse to defer to juries. This is odd on its face, since you might think of the jurors as the experts on that particular case. One explanation is that the “trust the experts” crowd only trust elites – people who have been certified by some high-social-status institution – and not ordinary people who happen to have spent a lot of time listening to the evidence.
I can only say that this is an error because what those social institutions that certify elite experts are doing is simply making sure that people have gathered the relevant knowledge. That’s all they can do. (Sometimes, they don't even do that, as in the case of major media outlets.) If we have some other way of making sure that people gather the knowledge – like making them sit through dozens of hours of testimony and arguments – then that generates equally real expertise. Don't confuse social dominance with expertise.
Famous Jury Errors
Another reason for the distrust is that there have been a few high-profile cases of seemingly outrageous verdicts. E.g., a few decades ago, there was the case in which a woman sued McDonald’s for selling excessively hot coffee and was awarded $2.9 million in damages. A judge later reduced this, then the parties settled out of court for an undisclosed amount. But most people only remember the outrageous $2.9 million figure. (Note: McDonald’s was in fact to blame. It was the amount of the award that was problematic.)
Then there was the infamous O.J. Simpson trial, in which Simpson apparently got away with murder despite DNA evidence linking him to the crime.
And the Rodney King trial, in which the cops were acquitted after beating the crap out of Rodney King on camera.
I did not sit through these trials. But like most members of the public, I found it extremely plausible on its face that these were jury errors. These point up the fallibility of juries. You can probably think of several more cases over the past few decades too. But that doesn’t mean that some other system would be better.
More importantly, these are cherry-picked anecdotes, not typical cases. These cases are famous because of the outrageous results. But literally millions of trials have occurred during the past few decades in the U.S. The overwhelming majority of them have had reasonable outcomes that you never heard about, but the few that have crazy outcomes and that also concern famous people or high-profile current events get endlessly reported. That’s why you might have the false impression that our system is very unreliable.
What About Race?
Isn’t there Racial Bias in the System?
But, you ask, what about all the evidence of racism in the criminal justice system? Don’t black defendants systematically get railroaded, and hasn’t that been demonstrated by social science research?
That might be what the anti-Rittenhouse people were thinking. Rittenhouse is white, and he attacked “Black Lives Matter protestors” (some people even thought that he shot black people), so, given the insane, Nazi-like racism of our legal system, of course he would be acquitted. Several media pundits said things like this.
[I put “Black Lives Matter protestors” in quotes because the first person who was shot, Rosenbaum, was apparently yelling the n-word at people that night. This was also the person who was a convicted child rapist. He probably was not a protestor but just a criminal who was attracted to the violence. The other two people who were shot also had criminal records. I’m not sure whether they were BLM protestors either. All three “victims” of course were white.]
There is indeed evidence of racial bias in criminal justice (https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/). I haven’t reviewed that evidence in detail, e.g., I haven’t read the original studies. That being said, there is a big difference between (a) having a statistically detectable difference in sentence lengths by race of defendant, and (b) having trials that blatantly give the exact opposite of the obviously correct outcome. There is likewise a big difference between (c) the public having some implicit bias that can be detected by studying large numbers of cases, and (d) being able to pick 12 random people and have them all turn out to be white supremacist-sympathizers.
(b) and (d) might have happened in the Jim Crow era and earlier. Some are apparently under the delusion that we're still living in that era. But today when people talk about racial bias, realistically, they’re talking about things like (a) and (c). Bias might influence outcomes in close cases, but it’s not (normally) going to flip the outcome of a clear case.
Of course, in the Rittenhouse case, both the defendant and his “victims” were white, so it’s especially unlikely that racism accounted for the verdict. Again, the most likely causal factor is the actual evidence.
What if He Had Been Black?
Some people asserted that if Rittenhouse had been black, he would have been convicted. No, he wouldn’t, and that’s irresponsible race-baiting. The case was clear. American juries are not (typically) morons, nor are they Nazis. Any person who had that fact pattern, with that clear evidence, would have been acquitted, regardless of his color.
Note two other recent cases in the news:
The case of Andrew Coffee IV (https://reason.com/2021/11/22/man-faces-30-year-sentence-self-defense-andrew-coffee-iv-rittenhouse/). Coffee tried to defend himself with a gun when police broke into his house. The cops shot back, killing his girlfriend. The government then charged Coffee in her death, because it was his self-defense effort that led the police to shoot her. Note: Coffee is black.
The Ahmaud Arbery case (https://en.wikipedia.org/wiki/Murder_of_Ahmaud_Arbery). Three white guys pursued Arbery (who was black), because they thought he was up to some criminal mischief. One of the guys, carrying a shotgun, tried to stop Arbery. Arbery tried to grab the gun; the white guy shot him. At trial, the white guys pled self-defense.
Note: If you see someone with a gun, do not try to grab the gun! That only works in movies. In real life, you immediately get shot.
If you listen to the race-baiting media, what would you predict? You’d assume that our racist justice system would have rejected Coffee’s self-defense claim, since he’s black, but would have accepted the self-defense claim of the Arbery defendants.
And then you’d be wrong. Coffee was acquitted; Arbery’s killers were convicted. Why?
Because of the facts of the cases. Notice that in the Rittenhouse case, the defendant was running away, his opponents chased after him and started physically attacking him, and then he shot them. In the Arbery case, it was the opposite: Arbery was running away, and the defendants chased after him. That makes a big difference to the self-defense claim. (In the Coffee case, no one was running away. But Coffee plausibly believed he was under attack by criminal intruders in his home.)
Conclusion: If you don’t know the evidence in a particular case, you should generally defer to the jury. Unlike pundits and random internet tweeters, juries usually make decisions based on the facts.
Why this Matters
I think it’s important for people to have a realistic understanding of what is and isn’t wrong with our system. Why? Because we need to preserve the things that are right while fixing the things that are wrong.
If people think (as many now do) that our system is ridiculously awful, such that race routinely determines the major outcomes of trials and not the factual evidence, then people are liable to destroy the things that are working in our system, resulting in much greater injustice. For example, some people now want a federal trial for Rittenhouse. Perhaps they would like to repeal the Constitution's prohibition on double jeopardy. Perhaps they'd like to have verdicts given by political appointees who will be "more responsive to the people" instead of by juries. In a democratic society, there is a chance of getting disastrous outcomes like this, if enough of the masses are convinced of completely erroneous ideas.
There is also likely to be greater social unrest and distrust, occasionally erupting in violence as people fight over imagined injustices that never actually happened. Perhaps people will start burning down courthouses or attacking jurors.
Hence, my plea to commentators and journalists: Please stop sowing discord and spreading misinformation about the justice system.