Justice System’s a Crime, but Witnesses Are Silent

The New York Post , which gets off on Grand Guignol , did itself proud the other day with a front-page headline proclaiming the glad tidings that “Fla.’s ‘Too Fat to Fry’ Fiend Dies Suffering.” The article’s lead sentence read, “A 350-pound killer-who insisted he was ‘too fat to fry’-screamed, shook and spouted blood as he was put to death yesterday in Florida’s brand-new electric chair.”

It was not said whether the State of Florida is asking for its money back on the chair; however, plenty of other details were provided. Lacking the Post’s gusto for sanguinary descriptions, we shall spare gentle readers with squeamish sensibilities, although in a city where being fat is almost as contemptible as not being rich, more than one person was of the opinion that Allen Lee (Tiny) Davis got what was coming to him.

Let’s hope so, because otherwise Tiny’s electrocution would be a gross miscarriage of justice in more than one sense of the word. If he didn’t do what he was punished for, it wouldn’t be so unusual. In Illinois alone, 12 men sentenced to death in the last 12 years have been saved from lethal injection by DNA evidence brought to light while they waited to hear the executioner’s song. Earlier this summer, a man in Georgia serving a life sentence found himself free and on the streets after 16 years of incarceration when DNA evidence exonerated him.

As of the last count, no fewer than 61 men around the country can thank DNA technology for establishing their innocence.

Some of the men freed by DNA evidence confessed their guilt, some were sent to the big house on circumstantial evidence, some were doomed thanks to being members of unfashionable racial or ethnic groups and some, apart from prejudice of that kind, were misidentified as the culprits by witnesses. So what’s going on here? We don’t know, we can’t say and it won’t be easy to find out. If every crime scene yielded DNA evidence, we could, not that we would, go through the cases of hundreds of thousands of mostly male prisoners languishing in carcere to determine whether or not they belong there. But every crime scene doesn’t have relevant DNA and many a crime doesn’t even have a scene, so any hopes we might have of using DNA to right the judicial system’s wrongs are ill founded.

Nevertheless, thank goodness for DNA. It has rescued at least threescore human beings from the worst fate this side of Stage 4 cancer. These DNA case reversals have put an irrefutable argument into the hands of people campaigning for an end to capital punishment. Howard Safir, our esteemed Commissioner of Police, wants to make DNA sampling as much de rigueur when a person is arrested as fingerprinting. By taking the DNA from the saliva a suspect left on a paper coffee container, the Commissioner’s detectives were able to nail the man for murder and rape. However, revelations of wholesale bungling at the famed F.B.I. laboratories is a reminder that the technology is only as useful as the organization using it is competent.

The DNA rescues make it obvious that there have to be thousands of prisoners who are innocent of the crimes for which they are in the penitentiary. Many of them may be career criminals who are guilty of serious crimes for which they haven’t been arrested or prosecuted. So we can ponder how much it does or ought to matter to us that a man is going to take the last gurney ride into the injection room for a murder he didn’t commit, if he probably has killed somebody else.

There is a further question: Can the criminal justice system, as currently constituted, be reasonably expected to get the guilty and only the guilty? We know that is not happening now. What we don’t know is the percentage of prisoners who are actually guilty of the specific crimes they are being punished for. What is our margin of error? Two percent? Seven? Twelve? What margin of error should we be willing to live with? Should we hold the criminal justice system, for instance, to the same standard that we hold automobile manufacturers or the makers of heart pacemakers and pharmaceutical products?

With pacemakers, we’re of a mind to put a manufacturer in jail if his product fails in any way. If it’s a Mercedes-Benz, we may not go quite that far, but we won’t tolerate defects. If it’s a Ford or a Chevrolet, we’re not so unforgiving. With the Yugo, if you remember that automotive import that seemed to break down more than it ran, people shrugged their shoulders and said, “What do you expect for that kind of money?” Oddly enough, the standards of the quality of justice are seldom discussed. We’re forever being shocked to learn that some wretch, usually a wretch of color, has been locked away for years for a crime he didn’t commit. We wonder if he’ll sue and how much money he’ll get. But that’s it.

Yet there’s every reason to suppose that it’s well-nigh routine to convict innocents, and not necessarily by mistake. Proving that contention is another matter. It’s rare that the attempt is even made. Recently, it was in Illinois, where four prosecutors and four deputy sheriffs were brought to trial for framing an Hispanic man in a murder case. The man was twice convicted and twice had his conviction set aside on appeal. He was acquitted in his third trial after a police officer admitted that he had lied when testifying at the first two trials. Nonetheless, the sheriff’s deputies and the prosecutors were found not guilty.

Committing perjury on the witness stand is so common that the police have a word for it: testalying. One of the accusations made against the F.B.I. in the laboratory scandal was that the technicians routinely fabricated evidence against defendants. When the news of what was going on at the labs first broke, there was speculation that hundreds, maybe thousands, of cases might have to be reopened and tried. That never happened and nobody demanded that it should.

The criminal justice systems in America and in New York are like a Rust Belt factory, or some early 20th-century industrial slum left over from the Soviet Union, an installation with unbreathable crap coming out of the chimneys, a huge sludge pond on one side and a slag heap on the other. It’s all dilapidation, sloth, demoralization, sloppiness and the perpetuation of routines, procedures and rituals that had become caricatures of themselves 50 years ago.

Last fall, grand jurors were invited by Chief Judge Judith S. Kaye, surely the last hope to restore what’s left of justice in this state, to tell what it is like inside a grand jury room. Uniformly, they testified to having next to no idea what they were doing, what they were listening to and whom or why they were indicting. Whether this remarkable woman, Judge Kaye, will succeed in instituting any abiding improvement remains to be seen but, unlike most judges, lawyers and other officials, she is alive enough and involved enough to try.

When a single police officer was induced to testify against a brother officer in the Abner Louima case, the TV anchors declared that the “blue wall of silence” had been punctured and a new day was at hand. The Louima case was special. The heat was on and a conviction was a political imperative, but no new day had dawned. If the cops or anybody else concerned with the administration of justice wants to tell the world how things are done in the law courts, the informers will be ignored and eased out, if not by their colleagues, then by a wider public which doesn’t want to hear it. DNA or not, testing or not, a Yugo’s a Yugo, and we know it.