The Erickson Report, Page 4: A Longer Look at Our Criminal Law System

The Erickson Report, Page 4: A Longer Look at Our Criminal Law System

And that brings us to A Longer Look at that profound failing at the heart of our legal system, because these cases are linked by more than the fact that they're both about convictions for murder.

Larry Swearingen was legally murdered because there was no error in the procedures, there was no misstep in applying the rules of the courts, and there is no requirement for a court to consider newly-discovered evidence or to believe it if it's produced. Johnson is still in prison because the court system was more interested in "the integrity of the legal process" than the fact of a wrongful conviction.

The court system, that is, the courts as part of what we call the criminal justice system, is more interested in the technicalities of legal procedure than it is with truth or with justice. It has been said before that "The law is not about justice. The law is about the law." And despite what we call it, we do not have a criminal justice system; we have a criminal law system.

So what happened in these cases is not the fault of Judge Edwards. It is not the fault of Judge Hogan. It is the way the system is designed: The original trial court is the place, the only place, where facts are to be determined, where truth or falsehood are to be found out. After that, at any higher court, it's all about procedure, about rules and regulations, and the truth of the original charge, indeed the very personhood of the convicted person, fades to insignificance.

Oh, certainly if you can show corruption on the part of the police or prosecution you can get a conviction overturned, but that's because they broke the rules; it has nothing to do with the truth or falseness of the charge.

Larry Swearingen

The profound flaw at the heart of our criminal justice - properly criminal law - system is that it equates justice with the process, not with truth or fairness or decency or even the accuracy of a criminal charge and sees nothing wrong with innocent people being imprisoned or even executed as long as they got "a fair trial."

To be convicted, the evidence has to show guilt beyond a reasonable doubt. But once you are convicted, the system is designed to assume that result was correct, so in the absence of some demonstration of official misconduct, of clear and undeniable rule-breaking, getting reconsideration on the basis of new evidence of innocence is like changing the mind of someone who already has firmly made theirs up - particularly because if a case is sent back to consider new evidence, it usually goes back to the original trial judge, who is now in the position of being asked, in effect, to confess that they were partly responsible for sending an innocent person to prison or even to Death Row. Such a change of mind happens, but it's rare. The system that claimed a bias in favor of the defendant at trial now has a far stronger bias in favor of the prosecution.

Lamar Johnson

It goes so far that the Supreme Court has never actually found that it is unconstitutional to execute a person known to be innocent of a capital crime, not so long as all the correct procedures were followed.

For example, in the 1993 case Herrera v. Collins, the Supreme Court denied habeas relief to a Texas death row inmate, ruling that in the absence of other constitutional grounds, newly discovered evidence of actual innocence would have to meet an "extraordinarily high" threshold - a threshold far higher than that required for conviction - to be grounds for a new trial. The court said he didn't meet that requirement. He was later executed.

The only sliver of hope on this particular front is found in the case of Troy Davis, another possibly innocent man executed by the state, in this case the state of Georgia in 2011. Responding to a 2009 petition from Davis, the Supreme Court ruled that "the District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence."

Troy Davis

That is indeed an "extraordinarily high" threshold, requiring evidence that could not - not was not, could not - have been obtained at time of the trial and which "clearly establishes innocence" - not "creates reasonable doubt about guilt" and note again that it's not necessary to "clearly establish" guilt in order to convict. But it at least suggests - but again does not say - that it would be unconstitutional to officially murder an innocent person even if all the legalities were seen to.

And in any event the failing - the devotion to procedure rather than justice - remains. I don't have an answer for this, I don't have a grand proposal for thoroughgoing change. I admit in fairness that a lot of the incantation-encrusted structure that has grown up around the law arose from attempts to prevent personal biases and cruel arbitrariness from determining outcomes of legal proceedings, but in so doing is has also for the most part locked out concepts such as compassion and completely rejected the concept that sometimes it's necessary to slip outside the rules in order to do what is right.

Meanwhile, as our legal system has become a nearly impenetrable, self-referential, high priesthood where most of us can find ourselves blocked from the courthouse for not knowing which official form to file or missing a deadline of which we were never informed because it was up to us to know, that failing continues to eat away at the justice we foolishly believed the system was about and the names like Larry Swearingen, like Lamar Johnson, like Troy Davis, like all the others wrongly convicted, even wrongly executed, will continue to haunt us.

Again, I don't know the answer. But I do know this: At his legal murder, Larry Swearingen said "Lord forgive them. They don't know what they are doing." I think he was wrong. They know exactly what they are doing. They are serving the system.