false testimony occurred in hundreds of trials, incl. 32 death penalty

November 26, 2015 5:29 PM

Forensic Pseudoscience

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

How the flawed ‘science’ of bite mark analysis has sent innocent people to prison. It literally started with a witch hunt: A history of bite mark evidence. Attack of the bite mark matchers.

CSI Is a Lie

But despite the fact that egregious problems have occurred in hundreds of crime labs throughout the U.S., affecting tens of thousands of cases or more, and perhaps even sending innocent men to their deaths, most police officials and prosecutors remain unwilling to acknowledge what we should now see clearly: They're incapable of running crime labs that reliably protect the innocent and identify the guilty, in large part because their conflicts of interest and biases are insurmountable.

posted by the man of twists and turns (46 comments total)

Add that DNA doesn't necessarily mean what we think it does (in terms of criminal evidence) and we pretty much have no more accurate procedural plot devices. Or easy ones, anyway.

I guess a bunch of these new law procedurals are often about getting guilty people off on technicalities.

Carry on, then.
posted by clvrmnky at 5:34 PM on November 26, 2015 [2 favorites]

And law enforcement agencies still use polygraphs...
posted by 256 at 5:39 PM on November 26, 2015 [12 favorites]

This is an amazing Frontline episode on the issue.
posted by InkaLomax at 5:47 PM on November 26, 2015 [9 favorites]

Next up: Fingerprints.
posted by mhoye at 5:48 PM on November 26, 2015 [2 favorites]

They're incapable of running crime labs that reliably protect the innocent and identify the guilty, in large part because their conflicts of interest and biases are insurmountable.

You'd think there would be an opportunity for a neutral third party lab to be given double blind crime scene samples along with an equal number of control samples for analysis.

But I guess then you'd need a party interested in demonstrating the true predictive ability of crime scene analysis, and perhaps no one is particularly keen to do so. Defense attorneys, maybe.
posted by leotrotsky at 5:51 PM on November 26, 2015 [10 favorites]

As someone who will probably have to piss in a jar in order to get paid soon, the massive cluster fuck that is drug testing is especially personal.
posted by clvrmnky at 5:53 PM on November 26, 2015 [9 favorites]

Yeah, aren't lie detectors widely known to be in a category with ouija boards and dowsing rods? Why is that still okay?
posted by Sing Or Swim at 5:56 PM on November 26, 2015 [19 favorites]

Forensic science is make-believe at best.
posted by Pope Guilty at 5:57 PM on November 26, 2015 [5 favorites]

Yeah, aren't lie detectors widely known to be in a category with ouija boards and dowsing rods? Why is that still okay?

they're used to psyche you out, they're not admissible as evidence
posted by p3on at 6:00 PM on November 26, 2015 [6 favorites]

Yeah, aren't lie detectors widely known to be in a category with ouija boards and dowsing rods? Why is that still okay?

It's used in the context of an interrogation to make the subject feel more exposed. It's like the questioner lying that the truth is already known so you might as well come clean.
posted by Obscure Reference at 6:01 PM on November 26, 2015 [3 favorites]

It's like the questioner lying that the truth is already known so you might as well come clean.

With the added bonus that you're willingly committing the act of talking to the police which can go wrong 1000 ways even if you're innocent (see the oft-cited "don't talk to the police" video).
posted by ctmf at 6:09 PM on November 26, 2015 [7 favorites]

Awesome post.

The law is a ass.
posted by allthinky at 6:21 PM on November 26, 2015

This was addressed on an episode of NCIS early this season. The episode featured a killer convicted on Abby Scuito's forensic hair analysis being released. It was interesting this showed up so quickly.
posted by lhauser at 6:35 PM on November 26, 2015

As for polygraphs, apparently they are still in use internally by all manner of US government agencies, regardless of whether or not it can be admissible in court they use them for establishing trustworthiness and per a former Air Force coworker of mine you have to take a polygraph test to get approved for certain types of classified information.

So there's apparently still a lot of people who believe in that crap in high places in government even today.
posted by sotonohito at 6:38 PM on November 26, 2015 [1 favorite]

clvrmnky: "As someone who will probably have to piss in a jar in order to get paid soon, the massive cluster fuck that is drug testing is especially personal."

Are there much in the way of false positives with saliva/urine drug testing?
posted by Mitheral at 6:49 PM on November 26, 2015

Perfect example of how polygraph analysis really works.
posted by PareidoliaticBoy at 6:55 PM on November 26, 2015 [6 favorites]

@Mitheral: "Are there much in the way of false positives with saliva/urine drug testing?"

The article mentions it in passing, but drug testing isn't exactly rigorous, and different labs can get different results (i.e., the tests are not necessarily repeatable). There are a lot of potential for both false negatives and positives, and little recourse when something goes pear-shaped for an individual.

I suppose the testing done for screening purposes might be less error-prone, given that (ideally) the lab simple gets a sample and an ID and (ideally) isn't being rewarded only for positives. That is, they aren't sure they already got their man, and want to make sure they caught him high. (Which was one of the criticisms raised in the OP; that so much of these forensics are about making sure they nail the perp they already know is guilty.)

But they are always tinkering with the tests they do. For example, once upon a time eating a poppyseed bagel would be enough for some folks to test positive for opiates. They might have adjusted their procedures for that, but I'm always worried about some new surprise or unintended consequence that means I'm out of a job.

I don't even know what the rate is for false positives. I bet they don't even share that information. It feels like a moving target; my effect on the outcome is low, and the consequences potentially high.

Not to mention that it creates a situation where I have to be careful where I go for fear of failing a test. It is my understanding that simply being in the same room as someone smoking weed could cause me to come back positive for cannabis. Again, maybe adjusted for at some labs. Maybe not?

I hate having to think like that about how I spend my time away from work. Like, my feelings are sort of "fuck you about who I spend time with; if they smoke, I don't accept your disapproval". But I'm bad tempered that way.
posted by clvrmnky at 7:08 PM on November 26, 2015 [8 favorites]

As someone who will probably have to piss in a jar in order to get paid soon, the massive cluster fuck that is drug testing is especially personal.

I don't know how rigorous the test you will be doing will be, but I have had employees whom I was sure were monumentally fucked up pass drug tests. The preemployment tests seem to mostly check if you can clean up your act for a few days or a week beforehand, and I've known daily users who managed to pass those.

If the science is bad or needs fixing, that is one thing. But this is sounding more like an entire corrupt system, and that is bad.
posted by Dip Flash at 7:17 PM on November 26, 2015 [1 favorite]

Not to mention that it creates a situation where I have to be careful where I go for fear of failing a test. It is my understanding that simply being in the same room as someone smoking weed could cause me to come back positive for cannabis. Again, maybe adjusted for at some labs. Maybe not?

I have been *repeatedly* tested - this is with nothing in particular riding on the result so it didn't change my behavior much - within a couple days of (an isolated instance of) smoking and it never showed up. This says nothing of course of what's possible or what's likely given your particular physiology. But personally I'd worry more about an out-of-nowhere false positive than about hanging out with stoners.
posted by atoxyl at 7:22 PM on November 26, 2015 [1 favorite]

But this is sounding more like an entire corrupt system, and that is bad.

Perspective is everything. When I read the comments about employment drug testing (and thought back upon the one or two times I, myself, have pissed in a cup rather than tell my future boss to fuck himself) I realized that there's a business here!

Employers don't give a shit whether you're a stoner, as long as you show up on time enough that you make them significantly more than they pay you. Drug tests are merely CYA: if you get caught Bill Cosby'ing some hapless teenager, your employer only wants to have some cover: "We checked for drug abuse, and he passed! So it's not our fault!" Or it's a government contract, and they're required to humiliate their employees (for the good of the Republic!) if they want that sweet, sweet ol-white-boy-network largesse.

On the other hand, there are apparently a fair number of people who are stressed out by the prospect of peeing in a cup, who need a favorable report to keep their job.

So here's a natural synergy: a flexible drug testing company that adheres strictly to Christian scientific methods could provide satisfactory results that meet the needs of both sides of this equation, while simultaneously delivering value to the stakeholders and disrupting the market in employment-ready information. It could even be open sourced to prevent abuse by theiving socialists.

Time to open an office in a plausible-but-sketchy building downtown and see who chooses to spend their drug-testing healthcare dollars with me!
posted by spacewrench at 7:33 PM on November 26, 2015 [5 favorites]

/me blazes up, confident he can pass that test no probs, amigo.

Dude... wait. What?

No. Not really. I've been pretty much the first person narrator of a Ringo Starr song for a few years now.
posted by clvrmnky at 7:40 PM on November 26, 2015 [1 favorite]

Good on them for owning up. Now own up on the rest - bite pattern, handwriting, ballistics, fingerprints. Not a one of them is reliable.
posted by kafziel at 8:10 PM on November 26, 2015 [2 favorites]

clvrmnky: "There are a lot of potential for both false negatives and positives, and little recourse when something goes pear-shaped for an individual."

Though it's tough to quantify what a false negative is I know lots of habitual pot users who don't seem to have trouble passing non-blood tests.

Dip Flash: "The preemployment tests seem to mostly check if you can clean up your act for a few days or a week beforehand, and I've known daily users who managed to pass those. "

This mostly. We've had guys fail the alcohol part of the test even when given several days notice. The guys who can't even manage to put off partaking the morning of seem to be the only guys seriously impacted in pre-employment screening.
posted by Mitheral at 8:26 PM on November 26, 2015

> Drug tests are merely CYA

It's all money. Their are breaks on insurance premiums if business run a testing program.

>I've known daily users who managed to pass those

A friend of a friend swears by fake urine that you can buy online. It's supposed to be the same stuff they use to calibrate the drug test equipment to get a 'clean' result. Says $40 and two days will get you a vial of it and some hand warmers to get it up to body temperature. I hear tell that unless you're on probation, they can't search you before the test and can't watch you go, so it's not likely you'll be caught.
posted by anti social order at 8:46 PM on November 26, 2015 [1 favorite]

But this is sounding more like an entire corrupt system, and that is bad.

I expect in 49 states prosecutors explain that Anne Dookhan was an anomaly and their state labs are just fine. She basically falsified over 30k cases over many years.
posted by sammyo at 9:08 PM on November 26, 2015 [1 favorite]

PREVIOUSLY.
posted by notyou at 9:27 PM on November 26, 2015

> Now own up on the rest - bite pattern, handwriting, ballistics, fingerprints. Not a one of them is reliable.

A lot of the underlying science of these has some value (though in the case of forensics relating to arson, not even that) but the issues stem from experts essentially lying about their confidence in the results.

Fingerprints, for example. The big issue is not that perfect prints are commonly duplicated because they aren't (though experts will perjure themselves on the stand and claim that this never happens, which is not true) - it's that experts will make identifications based on partial prints and don't accurately point out the uncertainty of their identification.

These experts are usually paid by the state, and they are not paid to tell the truth - they're paid to convict as many people as possible.

So you simply never see a court case where an expert witness says, "This identification is 70% accurate". No, they always have to tell you how this MUST convict because the chances are one in billions that they could be wrong.

Like so many other things about law enforcement and "justice" in the United States - heck, like so many things about the US in general - this is the point I fail to understand how the psychopaths took over with such ease.
posted by lupus_yonderboy at 9:32 PM on November 26, 2015 [16 favorites]

Polygraphs are terrible at detecting lies, but may be useful for selecting people who don't show certain physical stress markers when put in stressful situations. This may be of some use to organizations that deal with highly classified information.
posted by humanfont at 9:36 PM on November 26, 2015 [2 favorites]

> Are there much in the way of false positives with saliva/urine drug testing?

A Google search immediately found many examples. This Scientific American article has some numbers claiming that roughly one positive in ten is false (because false positives are rare, but then true positives aren't that common either).

There are also issues because urine tests of many groups of people - "women, vegetarians, the elderly, people who drink lots of water, and people of small body size" - can look as though they're diluted because of a low creatinine leve.
posted by lupus_yonderboy at 9:40 PM on November 26, 2015

The following urine test thing is kind of a derail, but given that this whole story is old news, what's more derail?

Back in the day, in order to get a job at the navy shipyard, I had to pass a piss drug test. Rather than stop smoking out for a month, I bought some powdered goop from the head shop that was marketed as a piss drug test mask. Guaranteed. I was supposed to stop smoking a couple days prior to the sample taking, drink a mountain lake of water, and mix in a few scoops of goop with every glass. The night before, I was to wake up eight hours before the test, drink a scoop of goop and 24 ounces of water, and do the same six hours before, AND NO EVACUATING URINE UNTIL SAMPLE TAKING TIME. Drink coffee as usual, or tea, or juice, whatever your day required, which meant a pot of coffee for me, as usual.

Naturally, I was well prepared for the interview. I was practically green. I was hopping.

I raced through the clipboard app form, and answered all the HR lady's questions as calmly as I could, despite the knowledge that I was presenting with almost three years of daily weed smoking, a pot of coffee, and a gallon of weed purified urine in my bladder pressing for release.

After the forms were filled, and the questions answered, we waited for the laggards to wrap up. And we waited. We watched the morning news on mute in the corner. The newscasters smiled and shifted in their chairs. Rain was forecast. The Lakers had won. Some politics happened. Eventually we were all finished, and one of the staff collected all the clipboards, and stacked them up on a folding table in back, and then returned to the TV in the corner, pulled a vcr tape off the table below, pressed it into a player, and pushed "play." It had been hours since the first dose of goop and water, and fewer since the second. The coffee lazed atop both doses , expectantly. We build ships. We build them safely. We watch out for each other. We champion diversity. We protect America. We never pee. Flags wave. Sparks fly. Ships sail.

Eventually we shuffled into the pissoir, ten or a dozen at a time. We do pee, but only after we see red. They handed us cups on the way in, with stickers on the lids with our company numbers and our last names, and we caught some urine from our anxious streams, and closed the lids and handed the samples over on the way out.

I have no idea if the goop or the waiting worked. I was hired!

A couple months later, after I cut my thumb with a metal grinder, they asked for another sample. That time there was no goop and no advance warning, but plenty of weed smoking in the days before, and no repercussions other than the date marker on the consecutive safety days calendar in the pipe shop going from "272" to "0".

So, uh, to get back on track; science is bunk? Unless they are looking for a reason to fire you. Or to convict you.
posted by notyou at 11:04 PM on November 26, 2015 [8 favorites]

Now own up on the rest - bite pattern, handwriting, ballistics, fingerprints. Not a one of them is reliable.

Let's not forget about the "arson experts" whose methods have the scientific rigor of one of those dial a psychic hotline things. For one tragic example, there's the case of Cameron Todd Willingham as covered in this New Yorker article, Trial by Fire, a few years ago. Apparently there was also a documentary, which I didn't know about until just now.

From the New Yorker article:

Many arson investigators, it turned out, had only a high-school education. In most states, in order to be certified, investigators had to take a forty-hour course on fire investigation, and pass a written exam. Often, the bulk of an investigator’s training came on the job, learning from “old-timers” in the field, who passed down a body of wisdom about the telltale signs of arson, even though a study in 1977 warned that there was nothing in “the scientific literature to substantiate their validity.”

The article goes on at much greater length about the patently incorrect evidence from the initial arson investigation and how it's dismantled by the actual scientific expert who comes in after the fact to review the case.
posted by litera scripta manet at 11:46 PM on November 26, 2015 [3 favorites]

Oh, and while we're on the topic of the criminal justice system making use of supposedly scientific testimony that is, at best, incredibly dubious in its validity, there's also shaken baby syndrome. Here's an article published last year in the Atlantic, How Can Doctors Be Sure a Baby's Been Shaken? and a 2011 New York Times article, Shaken-Baby Syndrome Faces New Questions in Court.

There are so many horrific problems with our criminal justice system in the US, and reading these things makes me want to rip my hair out, scream, cry, and/or punch something. At the very least, it blows my mind how anyone can support the use of the death penalty given all of this evidence of the flaws in the system.

To make matters worse, it seems like the criminal justice system is so insular and stuck in its ways, that it's hard to see how meaningful changes can be made without outside intervention. Of course, not many politicians probably want to weigh in on this, since advocating for people convicted of brutal crimes doesn't make for very good sound bites or publicity.
posted by litera scripta manet at 12:00 AM on November 27, 2015 [3 favorites]

The idea of being coldly murdered by the state for a crime one is innocent of is horrifying. Equally horrifying is that several politicians openly boast of killing people.
posted by five fresh fish at 12:10 AM on November 27, 2015 [4 favorites]

A friend of a friend swears by fake urine that you can buy online .... I hear tell that unless you're on probation, they can't search you before the test and can't watch you go, so it's not likely you'll be caught.

The "Whizzinator," a prosthetic device used to deliver clean (purchased) urine or powdered urine via catheter from bags secreted under the clothes has led to numerous arrests over the years. The usual tell has been the apparatus making a an audible noise when it comes in contact with the specimen cup. From Texas' Lubbock Avalanche-Journal:

Last week, probation employees discovered a flesh-colored appendage hooked to a bag of urine. The urine was warmed by a heating element so that the urine sample would be at almost body temperature, Martin said.

Interim assistant director Tom Madigan said the officer overseeing the test became suspicious when he heard the man tap what was supposed to be a natural body part against the rim of a cup.

"It shouldn't go 'clink,' " Madigan said.
posted by Graygorey at 12:43 AM on November 27, 2015 [1 favorite]

Admittedly, those arrests were of parolees and not employees or job applicants, but we're not talking about highly sophisticated stuff here.

But really, we're not talking about people outsmarting the system, we're looking at a system that's using unreliable science to put people away. Apologies for the derail.
posted by Graygorey at 12:59 AM on November 27, 2015

Metafilter: it shouldn't go "clink"
posted by clvrmnky at 6:38 AM on November 27, 2015 [1 favorite]

clvrmnky, not pulling your quotes to pick on you, but drug testing is something I have some background in, so....

The article mentions it in passing, but drug testing isn't exactly rigorous, and different labs can get different results (i.e., the tests are not necessarily repeatable). There are a lot of potential for both false negatives and positives, and little recourse when something goes pear-shaped for an individual.
There are rigorous, repeatable tests for the most typical drugs of abuse. I can understand why you think otherwise, because there is not (or perhaps was not - I no longer work in the field) much in the way of requirements for what kind of testing was run by private entities such as employers, but this discussion is specifically about forensic analysis. I worked at a drug testing lab years ago, and our testing had very exacting standards. Our tests were routinely calibrated against other labs. And while employers' tests may have sometimes only been simple bioassay screenings (which do generate some false positives), forensic test panels always underwent full chromatography and spectroscopy analysis, which are reliable and repeatable (and in fact, one of our internal checks was to run a sample more than once, and if the variance was beyond a certain range the test was considered a failure).

For example, once upon a time eating a poppyseed bagel would be enough for some folks to test positive for opiates. They might have adjusted their procedures for that, but I'm always worried about some new surprise or unintended consequence that means I'm out of a job.
This is still true. And it's because you literally do have trace amounts of opiates in your system - it's not a false positive (I recognize that you did not claim otherwise, but I feel it's worth making explicit). They have in fact adjusted what levels are considered positive to account for that - but again, as of when I worked in a lab, those higher levels were only required for forensic testing; private entities could still request that the lower standards be used. Even at the low level, you'd need to have eaten your bagel no more than a few hours before the test for this to be even a minor risk.

Not to mention that it creates a situation where I have to be careful where I go for fear of failing a test. It is my understanding that simply being in the same room as someone smoking weed could cause me to come back positive for cannabis. Again, maybe adjusted for at some labs. Maybe not?
Maybe if you are hot boxing - ie intentionally inhaling the secondhand to get high. Generally though, second-hand smoke is not nearly enough for you to test positive. Keep in mind that for all of the tests, testers can see pretty startlingly minute traces of drug - but if the amount is below a certain level, tens to hundreds of times higher than the minimum amount they can see, all that shows up in the report back is "Negative." Also keep in mind that with few exceptions (and THC isn't one of them), what they test for isn't the drug itself, or not only the drug, but metabolites of the drug, so contact exposure isn't going to trigger a positive. Your body has to have actually metabolized the drug.

Fun story: the lab I worked at had a relationship with what was at that time the only legal marijuana field in the US. The owner, himself an active biochemist, heard a rumor that second-hand smoke might create a false positive because THC, being fat soluble, might be absorbing through the skin. So he took some pure THC, mixed it in with some DMSO (a solvent that is more or less harmless, but that helps solutes be absorbed into skin), and stuck his hand in for a while. Then he gave us hair, blood, and urine samples to test for both THC and its metabolites. THC does not absorb into your skin.
posted by solotoro at 7:34 AM on November 27, 2015 [13 favorites]

On post-view, maybe it isn't that fun of a story, at least not if you've never worked with DMSO and therefore can't imagine how his hand must have smelled for the rest of the day.
posted by solotoro at 7:35 AM on November 27, 2015 [5 favorites]

Most forensic fields--hair matching, fiber matching, verbal pattern analysis, ballistics, fingerprint matching, drug field testing, bite mark matching, gait analysis, handwriting matching, blood spatter analysis, wound path trajectory, etc.--were not created, or even vetted, by scientists who were searching for truth. It was created by law enforcement officers who wanted to generate additional evidence to use against people they believed to be guilty. And in many places, crime labs are an arm of law enforcement, and are treated as part of the police and prosecution team. Basically any forensic field that wasn't created for some other purpose originally was created for the purpose of securing convictions. So when it's used in court, it is doing exactly what it was designed to do: getting people convicted. And there have been only rudimentary efforts to determine whether the people getting convicted are actually people who have committed crimes, instead of just being people unlucky enough that some police officer or technician in some police lab thought that something about them matched something about a case.

For example, DNA testing wasn't originally designed to catch criminals, it was developed as part of scientists' and doctors' efforts to understand human genetics and increase medical knowledge, and only later did both law enforcement and the innocence movement realize its value in crime-solving. But even with DNA analysis, there are areas that are more law enforcement and less science. For example, a lot of the DNA profiling that law enforcement and prosecutors now use in court to be able to say, "there is a 1 in X chance that this DNA came from anyone other than the defendant" was developed by law enforcement, and in a lot of cases, it's not based on sample sizes or data that would hold up to scientific scrutiny. And it's very difficult for a lay juror or lay judge--or even a prosecutor or defense attorney--to tell when they get the results from the lab whether they're good science or not. Especially now that law enforcement is purporting to be able to provide statistical probabilities for majority and minority donors to very small volume mixture samples (e.g., where 2 people's DNA is mixed together, what are the odds that the defendant is one of those two people?), there's a ton of controversy over whether the numbers they are using are scientifically sound. And the labs are usually controlled and/or funded by the same people who run law enforcement.

But outside of DNA and other hard sciences that are used and tested by independent scientists, to call these fields junk science isn't accurate, because they are no kind of science. If it wasn't developed originally as science for science's sake--if instead it was developed by cops, and if it hasn't since been independently tested and verified and standards for it developed by scientists with no ties to law enforcement, and if it is currently practiced by law enforcement and not by independent scientists--you should put it in the same category as phrenology and astrology.
posted by decathecting at 1:09 PM on November 27, 2015 [5 favorites]

It's fucking psychopathic that courts do not simply vacate the convictions en mass in cases of mass evidence fraud like this. Almost all the people Annie Dookhan wrongfully convict remain behind bars.
posted by jeffburdges at 4:13 PM on November 27, 2015 [6 favorites]

""It shouldn't go 'clink,' " Madigan said."

All depends on the size of your Prince Albert.
posted by Mitheral at 4:35 PM on November 27, 2015 [2 favorites]

BentFranklin, that kind of vengeful thinking is really attractive. But it's the same attitude that leads to the win-at-all-costs mentality that causes prosecutors and police and other agents of the state to misbehave in the first place. What if, instead of thinking about identifying bad guys and giving them the worst punishments we can think of so that we make sure they get what they deserve, we started thinking about reforming the system so that it's less focused on punishment in the first place? What if we were thinking more about social justice and poverty reduction and supporting the most vulnerable among us, instead of thinking about how to satisfy our thirst for vengeance?

I'm a defense attorney. I hate lazy, dishonest prosecutors with the fire of a thousand suns. They hurt people I care about, and I have to watch them do it on a pretty near daily basis, and they never (or close enough to never that the statistical average is zero) see any consequences for it. But adding more punishments to the system is not the solution to any problem, even when I personally might take great schadenfreude from it. We need to rise above our urge to punish everyone all the time, no matter how much our feelings tell us they deserve it; that's the only way we're going to solve any of this.
posted by decathecting at 4:37 PM on November 28, 2015 [1 favorite]

Prosecutorial misconduct is among the darkest and most heinous crimes, and ought to be punished accordingly. Murder kills a man. Abuse of power kills human society.
posted by Pope Guilty at 10:20 PM on November 28, 2015 [1 favorite]

Pope Guilty, it's not that I disagree with you. It's that I realize that our obsession with making sure everyone gets what's coming to them IS the problem here. And those of us who realize that have to set the example, no matter how unfair it feels that the people whose crimes we hate more than any other are getting away without being punished. Because everything you said about abuse of power? The people who control the system really, honestly, genuinely believe that same thing about drug dealing and rape and all the other crimes they are committing their crimes to try to prosecute. And you're not going to convince them otherwise.

If it were up to me, each of my clients who has been the victim of police brutality or prosecutorial misconduct would be allowed to beat the shit out of the law enforcement official responsible for that. That's what would feel fair to me. And I bet some of my clients would really feel better after they did it. But indulging that fantasy would make me a bad person, just like indulging the fantasy that it's okay to manufacture evidence and coerce confessions to imprison a rapist makes the people who do that bad people. And the system needs fewer bad people, not more.
posted by decathecting at 9:31 AM on November 29, 2015

Setting what example? There is and can be no equivalence between a prosecutor and an accused criminal. They are in a power relationship which cannot be elided or ignored.
posted by Pope Guilty at 10:15 AM on November 29, 2015

I'd be fine with a system in which the state officials advocated for the real public interest. And a defendants lawyer helped them navigate the process, advocated for them, ensured they did not get stepped on, etc. Ain't clear that's possible though.

It should be considered misconduct when a prosecutor pursues defendants they suspect to be innocent or targets guilty defendants for political reasons or reasons at odds with the public interest. And misconduct should make it impossible for that prosecutor to prosecute cases in the future.
posted by jeffburdges at 12:13 AM on December 4, 2015