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]

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