Oct

26

John Grisham’s new book The Innocent Man is really about four innocent men, all railroaded to death row or life in prison in Ada, Oklahoma, where my wife was born.

I know many of the locations in the book, having been to funeral’s at Criswell’s, the funeral parlor in town. I also was married in Ada, although not at any of the churches mentioned in the book.

I was encouraged to read the book by my mother in law, who knows most of the characters in the book. She grew up with and was/is pals with one of the judges who figures prominently in the book, and one of the accused’s lawyers was her divorce lawyer many years ago.

This book was extremely disturbing to me. Despite the fact that I generally have a negative view of government as a whole, I found the complete and total breakdown of justice in this case to shatter my entire view of the US justice system, particularly in light of the fact that two of the innocent men are still in prison.

I have long been a proponent of the death penalty in theory. Per the thinking of Jon Locke, I believe that since all humans have equal rights, once you take away the human rights of another, you have essentially taken away your own rights as well since yours were equal to those of your victim. Hence, I have no problem with the execution last night of the Gainesville serial killer.

The issue, however, is that I no longer trust the government to only execute guilty men. My first major doubts began a few years ago when I read the book “Death and Justice” by Mark Fuhrman. Death and Justice covered the sordid tail of phony convictions across Oklahoma due to the fraudulent lab work by Joyce Gilchrest.

“The Innocent Man” covers two trials in Ada during the 1980’s. During both of them, two men were convicted of murders with almost zero evidence other than videotapes of suspects relating dreams that they had about the murders.. the details of such dreams being totally conflicting with each other and having no relation whatsoever to the actual crimes.

In both cases, police employed jailhouse snitches to relate supposedly overheard conversations in the Ada jail, despite the fact that in certain cases the person claiming to have overheard a conversation was physically not in any position to do so. In fact, the same check-bouncing jailhouse snitch figured prominently in both trials.

Grisham tells a story of corrupt police, prosecutors, and crime lab personnel fixing evidence, encouraging false testimony, and failing to consider (or turn over to the defense) a multitude of evidence that clearly led to other suspects.

The judge in both cases failed to recognize that one man was clearly insane and not fit for trial, and in another case held a hearing on the prosecutions failure to over-turn evidence (the video-taped confession of another man) AFTER the trial was over and the verdict reached.

Ultimately, two of the innocent men were freed after DNA evidence was analyzed due to the work of Barry Sheck’s “The innocence project”. Unfortunately, two innocent men, Tommy Ward and Karl Fontenot, remain in prison. How this can be is frightful. More importantly, why those who faked evidence, both in these cases and in the Mark Fuhrman book, are allowed to walk the streets is mind boggling. To fake evidence and encourage false testimony in a capital case is nothing short attempted murder, and those responsible should be charged with such.

James Sogi responds:

Our legal system has many defects, and has great room for improvement. Yet it is among the best the world has ever seen in history. If you think the fog of war or the uncertainty in the market is great, you have never been in trial where the world can seem to turn on its head. As in the markets, the probabilities favor the proper outcome. Tell that to the unjustly accused, the wrongfully sued. I see many things in the smooth, fast, efficient electronic administration of the markets that the justice system ought to adopt such as standardized contracts and electronic filing. The system is slowly moving in that direction such as the Uniform Codes, use of standardized forms, arbitration, mediation, but the friction is very high. The friction comes from the participants, the litigants, the business people, who want, but cannot get, guarantees.

In an adversarial system where half the people lose, the common talk on the street is bound to have a large negativity factor. Who among you will volunteer to have your case be streamlined, and set aside the historical precedents that brought the US to where it is now to help speed up the system? Who will pay the extra costs to have a private qualified arbitrator decide the case and bypass the free service provided by the government for citizens to resolve disputes. Who has not thought that extra judicial process, such as Acme collections, guaranteed service 24 hours, 50% commission might not be preferable to the interminable delays, excessive fees in the short run, but which will leave us like Gaza, Iraq and Afghanistan? Who among you will ask their lawyer to skip steps, to take short cuts to save some fees? Would you ask your doctor to skip tests for your child? As your resident legal eagle, I apologize to all of you for the expense and slowness of the system, but do not think that throwing it out the system is right or reforming it will be easy or fast, nor is it all bad as you have claimed. You must understand that we are only historically one step away from trial by combat used a millennial ago in English jurisprudence. Though the adversarial system is difficult, like the markets adversarial nature, it helps arrive closer to the truth. Let those who criticize attorneys and the legal system step up and be the first to give up their rights for which our troops fight. If we were to listen to the losers in the markets one would think it should go as well, filled with scams, frictions, dishonesty, poorly qualified operators, underperforming funds, and brokers with divided loyalties and conflicts.

Stephen Jovanovich adds:

I hate to be arguing with James; but the primary virtue of the American legal system was that it had a relatively limited reach. That is no longer the case. For the statistically average American family with an income of $50,000 and assets of twice that much, a summons is the equivalent of a serious illness that is only partially covered by health insurance. Win, lose or draw the costs will be financially devastating. I write this as someone who spent a good deal of 2 decades being the lawyer (but, Thank God, never the plaintiff or defendant) in California’s criminal and civil courts; but my best evidence is the experience I had while working my way through law school at Berkeley as a process server. If the legal system were not a financial horror for the parties, the lawyers whom I served would not regularly have threatened to (1) kill me and my few remaining Serb ancestors or (2) perform unnatural acts free of charge (an extreme example of pleading in the alternative).

The only cures for the extortionate costs and for the regular abuses of prosecutorial discretion that have also become imbedded in our system are to adopt the sensible rules of our British cousins: the loser pays the winners costs AND legal fees, and there is no pretrial disclosure or publicity of any kind in criminal cases.

Prof. Adi Schnytzer reminds:

Anyone interested in this issue should read Bleak House by Charles Dickens. It may be the finest novel in the English language and tells us as much about the legal system as we would ever want to know. Plus ca change …


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