It’s not the Apples. It’s the Barrel

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Elton Richey
Elton Richey

by Elton Richey

Let me start by saying I am proud to have had the honor of knowing Marty Stroud as a friend and working with him as a colleague for many years. His recent letter to the Shreveport Times[linked] regarding his actions as one of the prosecutors who obtained the conviction and death sentence of an innocent Glen Ford brings great credit to Louisianas legal profession, precisely because it sheds light onto all of the things that are wrong with the American criminal justice system in general, and with the Louisiana justice system in particular.

First, and most importantly Martys letter shows that miscarriages of justice dont come about because theres one or two bad apples in the barrel. Its not the apples that are bad. Its the barrel that’s bad! Its the broken system! Let me make that clear. Wrongful convictions come about because the System is broken.Philip Zimbardo-Lucifer Effect Our broken criminal justice system not only creates the opportunity for good people to do bad things, it incentivizes bad behavior. It produces what Psychologist Philip Zimbardo termed in his book by the same name The Lucifer Effect.Good people do evil things not because they are predisposed toward unethical, illegal or immoral behavior, but because of the corrupting influence of situational and institutional forces acting upon them.

The bill of particulars against the Louisiana criminal justice system is far too long to summarize in these few paragraph, but we can list a few, starting with the way we fund criminal justice in this State. Louisiana has a profit-driven criminal justice system funded almost entirely off the backs of the people brought into the system by law-enforcement agencies. Law-enforcement agencies are not incentivized to conduct fair and impartial investigations when they are rewarded with forfeitures of seized property and money. Courts and judges are not incentivized to weed out frivolous prosecutions and ensure fair trials when their budgets are funded by the cash extracted from the pockets of the defendants herded into their courtrooms. Our Sheriffs are not incentivized to scale down jail operations when they are paid a nice per diem for every bed they fill with a state prisoner.

mass-incarceration-in-louisianaIn Louisiana, the Legislature decided many years ago to quit building prisons. It’s unpopular and difficult to push bills through the legislature to fund prisons. But, we didn’t stop the incentives for incarceration, we just took a different tack. And we didnt stop building prisons, we just put the building of prisons where it would fly below the radar of public scrutiny. We pay sheriffs something on the order of $2627 dollars a day to house State prison inmates in Parish jails. This made it lucrative and profitable for sheriffs to build and staff local jails for housing state prisoners.

Court costs, fines, court fees, traffic ticket fees are charged to and paid by the people who are brought into the system: the defendants who are ticketed, arrested, charged, prosecuted, and probated or imprisoned. On the surface this seems like a good and even a just idea. “Let these law-breakers pay for the cost we have to put out to deal with them.” Sounds great right? After all they are the “customers” of the criminal justice system, as it were. But this reflects a simpleton’s view of the problem of crime in a free and civilized society and how to deal with it. And the real problem with this approach to criminal justice funding is that it simply and effectively converts it into a profit-driven system. If nobodys ticketed, charged, prosecuted or convicted, there is simply no one to pay the tickets, the fines, the court costs and probation fees. If no one is convicted or convictions are overturned because police officer and prosecutors violate the rights of people accused of crimes, then there are no per diem payments to local sheriffs to house state prisoners in the parish jails. We have monetarily incentivized all of the players, from the police to the prosecutors to the court personnel, to simply bring cases into the system process them through as quickly as possible, so that ever increasing numbers of convicts can pay ever higher court costs, fines and fees so the system can be perpetuated. Even the Public Defender, always the last in line for criminal justice funding of any kind, has to charge the penniless defendants he is appointed to represent $40.00 for his services. Want to know how often that $40.00 actually gets collected? Not often.

Glen Ford’s case illustrates how making the Public Defenders stand last in the pay line of a for profit system only exacerbates the problems caused an out-of-balance prosecution-friendly criminal justice system.

The lawyers who represented Glen Ford were appointed lawyers who were not paid a reasonable rate of pay to be defending a capital murder case. They werent even qualified to be defending a capital murder case. One had never practiced criminal law, had never tried a jury trial, had never had someones life in his hands in a court before. The other lawyer had only had very limited criminal justice experience. This was the equivalent of asking a person who took a college course in physics to disarm a nuclear reactor that is in the process of melting down! Was there ever a snowball that had a better chance in Hades?

What happens when you incentivize a criminal justice system with a profit motive? You create a prison state. A state that incarcerates more of its population per capita than any other place in the civilized, or uncivilized world. And that is what we have done in Louisiana with what can only be described as our for-profit criminal justice system.

In this economic war on crime truth, justice and the ordinary rights of Americans are often missing in action. Their loss is just another aspect of the collateral damage that we have inflicted upon ourselves, like the damage we have inflicted on our business climate and economy. Think about it for a minute. What chief executive officer in his right mind would want to locate his company in a state that values incarceration more than education, or state where one out of every 55 of its citizens are incarcerated and one out of every 26 are under some form of correctional control?

US_incarceration_timeline-clean.svgBut the really important and most troubling aspect of the Glen Ford case is what it says about the state of our system of appellate review that judicial review, extending from the Caddo Parish District Court all the way up to the United States Supreme Court was inadequate to correct this all-too-obvious miscarriage of justice. This was a trial where an innocent man was convicted of a vicious homicide and condemned to death while being represented by ill-prepared, underfunded and inexperienced lawyers, while the state of Louisiana was represented by well prepared, fully funded criminal prosecutors. No court of appeals overturned this case. Glen Ford’s wrongful conviction and death sentence was only set aside after the Caddo Parish District Attorney choose to act on information the office found actually exonerated Ford. This exoneration was not the product of an effectively functioning criminal justice system. Glen Ford is free because the Caddo parish District Attorney’s office recognized, owned up to and corrected a grievous error. It speaks well of the individual attorneys involved, but not the system in which they labor.

This tangible inability of our judicial system to protect innocent citizens from frivolous prosecutions and wrongful convictions is the most troubling and dangerous aspect of the Glen Ford Case. Sadly, most courts of appeal do not always carefully seek out and correct errors in the cases brought to them for review. It is far too easy to invoke the shibboleth of the doctrine of harmless error and excuse the mistakes of police, prosecutors and trial judges to avoid reversing convictions, and sending cases back to be tried properly.

So instead of raising the standard of performance and practice for police officers, prosecutors and trial judges by insisting that the rights of ordinary Americans be scrupulously honored and protected, courts of appeal all too often inadvertently reward shoddy lackadaisical work and tolerate miscarriages of justice. No one cares or complains when convictions are upheld. But it is difficult to reverse a criminal conviction. It means criticizing the hard and usually well-meaning but wrongheaded work of police, prosecutors and judges. That is usually embarrassing for all concerned. It means admitting that we do not have the best system of justice in the world. It means admitting that we make mistakes and that in our zeal to do good, we often do great harm. But the Glen Ford case, like every other wrongful conviction, reminds us how incredibly important that it is to get it right the first time And wouldn’t we be better off if some judge involved in reviewing this case somewhere along the line had said, Wait. Stop. Go back. Get it right? These were not evil, bad, or even incompetent people. How could so many good lawyers and judges have been blind to the problems in this case?

My colleague Bill Goode, aptly describes Marty Stroud as the epitome of integrityand in ruminating about their work together as young prosecutors in the 1980s takes special note of Martys admission that as a relatively young prosecutor he was blinded by the light. This notion speaks volumes about what leads to miscarriages of justice. Bill describes this blinded stateas one where the individual prosecutor focuses so intently on winning that he disregards the constitutional rights of the people involved and in the zealous pursuit of “justice” abandons his professional responsibility to pursue Truth. The blinding nature of this light is only exacerbated by the for profit nature of our criminal Justice system.

tremendous harm and causes immeasurable suffering, while believing they are doing the good, honorable and just thing.
… tremendous harm and causes immeasurable suffering, while believing they are doing the good, honorable and just thing.

Taken together Zimbardo and Goodes comments comprise my personal definition of evila person who unwittingly does tremendous harm and causes immeasurable suffering, while believing they are doing the good, honorable and just thing. We have all been guilty of such evils at one time or another. Marty has, for good or ill, merely had the fortune or misfortune of glimpsing the fruit of his actions. He is a better man for it and we are a better community because he cared enough to look into himself and share his insight.

Elton Richey is a criminal defense attorney, former Shreveport Police Officer and a retired Army Reserve Officer holding the rank of Lieutenant Colonel. He is a member of the Faculty of the National Criminal Defense College in Macon Georgia and a frequent speaker on the topic of Wrongful Convictions.

RESEARCH:
Pew Research 1 in 100 Americans behind bars in 2008
Louisiana Incarceration Rate Highest Among States

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