One
of my favorite bloggers, Paul Campos, recently studied the transcript of deflate-gate
and concluded that “
The NFL’s case against Brady is a joke.” I don’t doubt his claim for a minute; in
fact, it’s what I suspected from the get-go.
(Who the hell would want to play with an under-inflated football anyway? Not Tom Brady. See
p. 50 of the transcript.) But that’s not the point of this post. Rather, my point is that
Campos’s
observations about due process in the Brady case are also relevant to defendants
charged with crimes. For example:
Campos
writes about the “absurdly lax evidentiary standard of being more probable than
not[.]” Apparently, that’s all that’s
needed for the NFL to get Brady. Surprisingly,
though, that’s essentially the burden of proof in many criminal cases. Sure, we all labor under the delusion that
the government has to prove its case “beyond a reasonable doubt.” But in some states, including
Wisconsin,
trial judges instruct jurors that “you are not to search for doubt. You are to search for the truth.” But isn’t that really a preponderance of the
evidence standard like the one being used against Brady? If a jury is persuaded by the slightest
preponderance of the evidence (but not beyond a reasonable doubt) that a
criminal defendant is guilty, doesn’t their judge-ordered “search for the
truth” require them to convict? (I
argued,
here, that this is a real risk if not a foregone conclusion.)
Campos
also writes that Brady’s persecutor’s “prejudged this case and then went
looking for any evidence to confirm their conclusion, while ignoring everything
that contradicted it.” Similarly, in
criminal cases, pro-state judges often make up their minds ahead of time, and
then use several legal tools to justify their predetermined outcomes. These tools include even
lower standards of proof including the “probable cause” standard for motions and
other hearings, as well as easily manipulated “
multifactor balancing tests.” In criminal courts, it’s typical
for the judge to first reach a decision, and then cherry-pick their facts to
support that decision.
Campos
also writes that, despite the problems with the case against Brady, “this
doesn’t necessarily mean that a federal court would overturn [the] sanctions
against Brady, because the relevant rules give [Brady’s persecutors] a lot of
discretion to make substantively horrible decisions without being overturned.” And this, too, is similar to the criminal
justice system where judges are given tremendous discretion and their nearly
every ruling is upheld. For example, in
order for an appellate court to overturn a trial judge’s sentence, it basically
has to find that the judge
made up the facts relied upon in reaching
that sentence — something that most (
but not all) trial judges are swift enough
to avoid doing.
Campos
rightly points out that due process in the Brady case “is a joke.” But Brady is lucky. Even if he loses his appeal, he only loses
four weeks’ pay. Criminal defendants —
many of whom are incarcerated while their case is pending — can lose that and a
whole lot more before they can even get their pretrial motions heard. And by the end of their cases — cases which
often drag on for several years — the ultimate cost in time, money, quality of
life, and freedom is staggering.
Most people think that the US has a "Justice" system were right/wrong fair/unfair is decided.
ReplyDeleteThis is what people believe all of their lives until they get entangled in this "Justice" system. Then to their disappointment they find out that is only a unjust "Legal" system.