Justice in Virginia – worse than imperfect!

loudouncourtThere is this wrong-headed notion in Virginia that, if we could just get better paid criminal defense lawyers with more administrative and investigative resources, that we would have criminal justice in Virginia.

That’s just not the case.

Assuring the Accused of a decent defense in Virginia is but a small part of the failure of our so-called criminal justice system.

We are convicting innocent people in Virginia because of false eye-witness testimony, false confessions, over-eager snitches, faulty forensics, true, some bad defense lawyers, but also, and this is the worst of all, because of prosecutorial misconduct and police misconduct.

In this last category, what we often mean by misconduct is that the government is concealing or destroying evidence that is exclusively within its possession that demonstrates, or tends to demonstrate, that the Accused is innocent, or his accusers are not reliable, or the sentence excessive.

The Commonwealth will fight to hold onto its information, keep it confidential from the Accused, claim it has no such information, even at the risk of convicting the innocent.

When I was a puppy federal prosecutor in New York and other prosecutors, my colleagues, would ask my advice as to whether they should turn over evidence to the defense counsel, I’d ask why they were asking the question.

It must have been, so I thought, that they were concerned the information they had might tend to help the Accused, and, consciously or not, these eager advocates, were reluctant to yield that righteous advantage.

I always thought the impetus for such questions led to only one obvious answer – that the information had to be handed over.

The best defense lawyer in the nation, ignorant of a client’s factual innocence, or a flaw in a key government witness, because the Commonwealth is sitting on evidence of innocence, or impeachment material, exclusively within the possession of the Commonwealth, might not be able to save the Accused from jail, prison or death row.

We know that the innocent have been convicted in Virginia because DNA evidence now allows us to exclude individuals as suspects in crimes – if the DNA evidence has been preserved.

Barry Scheck, an old friend, from the OJ Simpson case, and his Innocence Project have overturned one case after another for years in this fashion.

Arthur Lee Whitfield spent 22 years in prison for the double rape of two women in Norfolk within the same hour. Both women positively identified Mr. Whitfield. Mr. Whitfield pleaded guilty to one of the charges to get a lesser sentence. The Commonwealth had destroyed the DNA. But one serologist had violated lab protocol and saved a sample that exonerated Mr. Whitfield and implicated another prison inmate for the crime.

We must reform a system that provides less information to a person accused of a crime, than a party would get if sued for a $200 bad debt in civil court. And we must reform the notion that a criminal prosecution is some sort of sport, that is, all about winning a conviction, rather than doing justice. Justice is presently a coincidence of the system, not a consequence of it.

I was instructed when sworn in as a federal prosecutor of the enormous power delegated by that oath, that it could destroy an individual’s life with a misspent word, an overlooked piece of evidence, or an unsound indictment, and was further instructed, in the words of former Supreme Court Justice George Sutherland, how:

“The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. …[W]hile he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

[John Flannery is a former federal prosecutor, a former director of the National Association of Criminal Defense Lawyers, and a former special counsel to the US Senate Judiciary Committee, and to the US House Judiciary Committee.]