CrimProf Blog

The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants

"DNA has conclusively proven the innocence of hundreds of prisoners. Yet
thousands, if not tens of thousands, of innocent prisoners remain behind
bars because no DNA evidence exists or it has not yet been tested. George
Thomas's new book, The Supreme Court on Trial: How American Justice
Sacrifices Innocent Defendants, should be read by everyone who has an
interest in justice and in protecting innocent defendants from being sent to
prison. His carefully-developed thesis is that due process of law is most
importantly about protecting innocent suspects and defendants. He shows how
the current system too often fails at protecting the innocent, and he offers
a realistic blueprint for meaningful reforms.

The book examines how Western cultures have historically identified those
guilty of crimes. It begins with the ancient Greeks. By the time the book
reaches the late seventeenth century, it shows how the British and American
systems of justice had evolved into what lawyers call an "adversarial
system." In that kind of system, advocates for both parties examine and
cross-examine witnesses in court as the way to reveal the truth about guilt.

But Thomas asks, why would that be the best method to get at the truth? As
any lawyer can tell you, advocates do not really want an objective truth to
be revealed. Instead, they want the jury to buy their version of the truth.
In presenting the case, therefore, advocates often hide, distort, or deny
the truth. Thomas wisely quotes Jerome Frank's pithy critique of the
adversary system as "the equivalent of throwing pepper in the eyes of a
surgeon when he is performing an operation." The overarching question that
the book seeks to answer is whether there is a better way to process
criminal cases.

Thomas's writing style makes the book both accessible and fun to read. He
tells lively, engaging stories about the men and women behind the movements
in the law that he describes. Do you want to know how England developed
trial by jury? Then be entertained by a story of Henry II (great-grandson of
William the Conqueror) that begins when he transported an army in tiny boats
across the English Channel during a powerful winter storm. For evidence of
how juries too often fail innocent defendants, meet a black man wrongfully
convicted of raping a white woman in Chattanooga, Tennessee in 1906. Other
characters in the drama are the judge and lawyers who tried to provide him a
just and fair trial, the jury that cried out for more evidence but
ultimately convicted anyway, the sheriff who saved him once but not the
second time, and the mob that lynched him while his case was on appeal to
the United States Supreme Court.

Part of the received wisdom in legal and pop culture is that the American
adversarial system is superior to the continental systems where judges
conduct both the investigation and the trial, making lawyers largely an
after-thought. But Thomas examines this premise with fresh eyes and finds
much to value in the French system. Getting at the objective truth is the
goal of all the actors in the French criminal process, even the defense
lawyers. It is probably no coincidence that documented cases of wrongful
convictions in France are rare indeed.


The last chapter of Thomas's book describes a set of reforms that would
protect the innocent at a reasonable cost. Some of the proposed reforms are
both provocative and controversial. Thomas would, for example, create a pool
of "criminal trial specialists" who would be available both to prosecute and
defend criminal cases. It is difficult to imagine a state legislature taking
routine criminal cases away from district attorneys. Still, thinking about
that possibility gives us insight into the ways that our adversarial system
obscures the truth. Other reforms suggested by Thomas-for example, having
judges review criminal cases before trial and also after conviction-are more
likely to be adopted.

Most Americans think that the way Perry Mason or F. Lee Bailey tried
criminal cases is the only, or the best, way to uncover the truth. Thomas's
book is a powerful antidote to our complacent assumption that an adversarial
system can be trusted to deliver the goods on Truth." [From: Kris Bishop] [Mark Godsey]

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UPR and Arizona CrimProf David Wexler: New Book on Criminal Practice and Therapeutic Jurisprudence

CrimProf David B. Wexler (SSRN) (Wikipedia) (Homepage) of the Universities of Puerto Rico and Arizona has published a new edited volume Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (Carolina Academic Press).

The description:
"This book seeks to bridge the traditional divide between scholarship and practice in the field of law. It introduces the interdisciplinary perspective of therapeutic jurisprudence (TJ) and then, largely through the thoughtful and informative essays of practitioners and clinical law professors, shows how criminal law practice can be enriched — and how clients can benefit — from lawyers looking at their practice with a TJ lens. Lawyers can be positive change agents for many of their clients, and will find that this approach can markedly increase their own professional satisfaction and enhance their professional image."  Flier here More details and ordering information below.

“The most interesting, important and innovative book I have read about the practice of law in many years. I’m a former Public Defender (still one at heart), and I hope this book is read by all of those who devote themselves valiantly to this most undervalued position. Anyone who has ever represented a criminal defendant owes Professor Wexler a great debt of gratitude.” — Professor Michael L. Perlin
Director, International Mental Disability Law Reform Project, Director, Online Mental Disability Law Program, New York Law School

“Rehabilitating Lawyers is the kind of smart and balanced book too often absent from the fractious debate about the future of our criminal justice system. By embracing healing as a legitimate criminal justice goal, Professor Wexler offers up an exciting new paradigm in which lawyers finally deserve the label ‘counselor.’” — Robin Steinberg, Executive Director, Bronx Defenders

About the Editor:
David B. Wexler is Professor of Law and Director, International Network on Therapeutic Jurisprudence at the University of Puerto Rico. He is also Distinguished Research Professor of Law and Professor of Psychology at the University of Arizona. He served as a member of the MacArthur Foundation Research Network on Mental Health and the Law, and is a recipient of the American Psychiatric Association's Manfred S. Guttmacher Award, the New York University School of Law Distinguished Alumnus Legal Scholarship/Teaching Award, and the National Center for State Courts Distinguished Service Award.
Wexler is an Honorary Distinguished Member of the American-Psychology-Law Society, was a consultant on therapeutic jurisprudence to the National Judicial Institute of Canada, and has served as a Fulbright Senior Specialist, lecturing on therapeutic jurisprudence across Australia and New Zealand. He has also
addressed national audiences in the US, UK, Canada, Spain, Chile, Puerto Rico and Israel, and his work has been translated to Spanish, Portuguese, Hebrew, and Urdu. This is his seventh book.

Order and Exam Copy Information: Save 10% when you order online!
Order online at www.caplaw.com or call 800-489-7486.
If you teach and wish to request an examination copy of this or any of our other titles, please e-mail comp@cap-press.com or call (800) 489-7486. You may also request examination copies online at www.caplaw.com. Examination copy requests should include the following information:
• course(s) name for which the book is being considered;
• semester(s) the course is taught;
• projected enrollment for the course(s); and
• institutional address and phone number.

Police Interrogation and American Justice

"Harvard University Press has just published

University

of

San Francisco Law Professor Richard Leo

's new book, Police Interrogation and American Justice (2008).  Based on more than a decade of research, including a significant amount of primary research most scholars in the area don't have, Leo's book chronicles and analyzes more than a century of police interrogation in United States, including the rise and decline of the third degree, the movement for police professionalization that resulted in behavioral lie detection and police training manuals, the psychology of police interrogation practices, the problems of false confession and wrongful conviction of the innocent, and various policy and legal responses to the issues and contradictions raised by police interrogation and confession-taking in the American adversary system of criminal justice.

University

of

Michigan Law Professor Yale Kamisar

has called Police Interrogation and American Justice, "The best book on police interrogation I have ever read," and Northwestern Law Professor Albert Alschuler adds: "If you want to understand American criminal justice -- really understand it -- you must read this book."

Prosecutor's Quest to Exonerate an Innocent Man. . .

in a novel due out in January '08, that is.  Read about how San Mateo County Deputy District Attorney Al Giannini and bestselling crime writer John Lescroart are partners in crime writing, here from the San Jose Mercury News. . . [Michele Berry]

Reader's Corner: John Grisham's "Innocent Man"

From NPR.org: An obituary in The New York Times led writer John Grisham to the subject of his new book -- and first work of nonfiction -- The Innocent Man. It's a tale of the wrongful conviction, near-execution, exoneration and tragic death of Ron Williamson -- a small-town sports hero from Oklahoma whose life didn't turn out the way he expected. "Never in my most creative moment could I have come up with a story like this," Grisham says. Here's an excerpt and commentary from NPR. . . I haven't read it yet, but my Co-blogger Godsey can hardly put it down. [Michele Berry]

Reader's Corner: "Reflective Glass" by William G. Hathorn

"Reflective Glass" is a new book by death row inmate G. Wilford Hathorn. The book is a collection of fifteen essays that deal with life on Texas' death row from a prisoner's perspective. The essays describe many aspects of death row life: the pain of losing friends through execution, the medical treatment of prisoners, the monotony of living in a tiny cell, and the interaction with guards. More from Death Penalty Information Center. . . [Michele Berry]

LSU CrimProf Green's New Book

LSU CrimProf Stuart Green has a new book, entitled Lying, Cheating, and Stealing : A Moral Theory of White Collar Crime.  Here's the amazon.com description:

The picture of crime that dominates the popular imagination is one of unambiguous wrondoing--manifestly harmful acts that are clearly worthy of condemnation. The accompanying picture of the criminal--the thief, the murderer--is a picture of society's failures--to be cast out and re-integrated through a process of punishment and penance. Our understanding of white-collar crime, by contrast, is pervaded by moral and imaginative ambiguity. Such crimes are often commited by society's success stories, by the rich and the powerful, and frequently have no visible victim at their root. The problem of marrying these disparate pictures has led to a confusion of the boundaries of white-collar cime. How is it possible to distinguish criminal fraud from mere lawful "puffing," tax evasion from "tax avoidance," obstruction of justice from "zealous advocacy," insider trading from "savvy investing," bribery from "log rolling," and extortion from "hard bargaining"? How should we, as scholars and students, lawyers and judges, law enforcement officials and the general public, distinguish the lawful from the unlawful, the civil from the criminal?

In the first in-depth study of its kind, Stuart Green exposes the ambiguities and uncertainties that pervade the white-collar crimes, and offers an approach to their solution. Drawing on recent cases involving such figures as Martha Stewart, Bill Clinton, Tom DeLay, Scooter Libby, Jeffrey Archer, Enron's Andrew Fastow and Kenneth Lay, HealthSouth's Richard Scrushy, Yukos Oil's Mikhail Khodorkovsky, and the Arthur Andersen accounting firm, Green weaves together what at first appear to be disparate threads in the criminal code, revealing a complex and fascinating web of moral insights about the nature of guilt and innocence, and what, fundamentally, constitutes conduct worthy of punishment by criminal sanction.  Green argues that white-collar crime is best understood through a framework of everyday moral concepts that include not only lying, cheating, and stealing, but also coerction, exploitation, disloyalty, promise-breaking, disobedience, and other forms of deception. In the process, he reveals the essentially moral fabric underlying the legal category of white-collar crime.   [Mark Godsey]

Penn Prof Publishes Novel

Kermit Roosevelt, assistant professor at Penn Law, has published In the Shadow of the Law.  A prominent story line is how a pro bono death penalty case affects attorneys in a large corporate firm.  The book has earned rave reviews.  Publishers Weekly said, "Most of all it's the vividness and complexity of the characters—drawn with the precision and authority of a winning legal argument—that heralds the arrival of an exciting new voice."  See reviews and buy book here.  [Mark Godsey]

David Harris, Good Cops

Toledo Crimprof David Harris has published Good Cops: The Case for Preventive Policing (The New Press).  There is an associated website, www.goodcops.net. Praise for the book comes from such people as Senator Edward M. Kennedy, who says: “In this important book, David Harris shows how modern police forces can make us safer from crime and terrorism.” William Bratton says: “This book should be read by everyone in law enforcement and every citizen who cares about the future of our country.”  [Jack Chin]

Canadian Therapeutic Jurisprudence Manual for Judges

One of the most successful ideas to come out of my university is therapeutic jurisprudence, pioneered by David Wexler. (Can you possibly guess what the students nicknamed him?)  TJ is defined as follows: "Therapeutic Jurisprudence concentrates on the law's impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognized and systematically studied."  A number of judicial systems around the world have found this approach compelling; one of them is Canada, which, according to this press release, is trying to integrate TJ into its processes: "Canada's National Judicial Institute(NJI) has just published an important judicial problem solving/therapeutic jurisprudence manual. It is short, meaty, very readable, and ought to be of great value internationally. The manual is available online and , according to the publisher, non- commercial reproduction is encouraged. To access it, go to the NJI's website at http://www.nji.ca and click on 'education' and then 'publications', and finally on the title of the manual itself, Judging for the 21st Century: A Problem-solving Approach." For more information, here's the website of the International Network on Therapeutic Jurisprudence. [Jack Chin]

New Book on Overcriminalization

See the review at Crime and Federalism of Go Directly to Jail: The Criminalization of Almost Everything, published by the Cato Institute, with chapters from Utah CrimProf Erik Luna and Cato's Timothy Lynch among others. [Jack Chin]

Book Club: Murder and the Reasonable Man

Check out GW CrimProf Cynthia Lee's NYU Press book Murder and the Reasonable Man. Wayne State Dean Frank Wu calls the book "Provocative and persuasive. In this well-written and meticulously documented book, Cynthia Lee demonstrates how the law has defined 'reasonableness' in criminal law to favor men against women, straight men against gay men, and whites against blacks. Lee's synthesis of many seemingly different examples, with thoughtful responses to the various objections that might be raised, is legal scholarship that can make a difference in our social practices. This is a serious and compelling book that should lead to reform."  Link to NYU Press site here, link to her SSRN author page here. [Jack Chin]