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Commentary & Opinion

The system of criminal injustice

Questions have arisen about the connections between law enforcement and the owners of Prestige Limo whose limousine crashed into and killed 20 people in Schoharie, New York in 2018. Let’s be clear – connections between criminals and law enforcement are a common problem. Prosecutors will do almost anything for so-called informants to supply what sounds like evidence, and criminals get all sorts of breaks as a result. Become an “informant” and you’re reset for life.

Two decades ago a panel of the United States Court of Appeals for the 10th Circuit held that promises of leniency or forbearance from prosecution in exchange for testimony are effectively bribes and fall afoul of federal law and basic democratic principles. The Supreme Court long ago held that such deals must be revealed to the defense, but its holding is too often ignored. The full 10th Circuit, however, overruled the panel and made its decision disappear from the case reports making it almost impossible to find unless, like several of us at the law school, you kept a copy. And the Supreme Court in Van de Kamp v. Goldstein decided that prosecutors can not be sued for such misbehavior even when they deliberately and intentionally flout their responsibilities to put innocent people in prison for a quarter century.

Prosecutors get lots more convictions that way. But whom do they convict? As I wrote in my book on the Roberts Court, the story gets worse, because criminals who face time in prison know what they need to do to get out. The revolving door of so-called “informants” and get-out-of-jail-free passes is so well known among the guilty, that the Los Angeles County grand jury found the “District Attorneys Office failed to fulfill the ethical responsibilities required of a public prosecutor” by deliberately refusing to inform defense counsel and taking “the action necessary to curtail the misuse of jailhouse informant testimony.” Two years after the Supreme Court whitewashed the prosecutor’s behavior in the Goldstein case, it whitewashed a prosecutor in New Orleans.

People with experience in criminal law can detail at enormous length the ways that the so-called criminal justice system goes awry. Some prosecutors care more about getting convictions than justice. Some who try to do the right thing describe how police officers take their cases to prosecutors who’ll play it their way, skipping the rules to get convictions regardless of actual guilt. I get very cynical because much too much of the process of criminal prosecution overrides the search for truth and justice.

So now that questions arose about that limousine and how they escaped regulation for so many years, if we ever get the full story, I expect we’ll find that people did misuse their power. It actually gets worse, because the man who owned the company, whose limos were evading the law, also put local people in prison. I went through the trial record in one of those cases and it was pretty obvious to me that there was a glaring gap in his testimony – but in the middle of the scare over 9/11, counsel were not able to get an acquittal and two men spent long years in prison. It’s curious, by the way, why the government used a person as an informant who had been arrested for perjury and was facing a long prison term himself when nothing depended on using such a person except the assurance that he would come up with a story that convicted two other people, in this case two local and well-liked Muslims.

Maybe you don’t believe in systemic racism, but I can tell you that injustice is very systemic.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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