A Justice Story: The System Stinks

Well, well, well, so it wasn’t that gang of marauding, African-American teenagers “wilding” through the white man’s part of Central Park who raped and all but murdered a young woman 12 years ago. At the time, the case gave the inhabitants of ZIP code 10021 such a bad case of the shivers that you could hear the necks of their wine bottles jiggling up against the lips of their stemware as they poured their potations and quietly damned Lincoln for not sending the blacks back to Africa. It was one of those moments during which false racial prophets rise into the headlines and brutes like Donald Trump try-as the man did-to rally lynch mobs by placing inflammatory ads in the papers.

Now, after the five convicted of the crime have done the time, the world learns that they weren’t there, didn’t do it and don’t know anything about it. We should be getting accustomed to this kind of news. There has been a regular tattoo of such announcements since mitochondrial DNA testing has been introduced to establish the who-was and the who-wasn’ts of rapes and other kinds of crime where blood or spit or flesh itself is an element of the evidence. Thanks to these upsetting tests, we are repeatedly reminded that half the time, the authorities don’t get it right. The long arm of the law and the bony finger of justice keep tapping the wrong shoulders.

This case was, as they used to say, open and shut, or a slam dunk, as they say now. The accused confessed, and there’s no evidence that the cops beat them into it, but then guilty confessions by innocent persons are hardly new in Euro-American history. Most of the thousands of women in the 16th and 17th centuries who were hanged or burned at the stake confessed to being witches when, at least by our 21st-century lights, they decidedly were not-and many of them were not tortured. The Communists, particularly in the time of Joseph Stalin, were adept at obtaining what often appeared to be genuine confessions of anti-party activity by innocent people who, thanks to their interrogators, came to believe in their own guilt. (See the novel Darkness at Noon, by Arthur Koestler, for a soul-freezing account of how innocence comes to embrace the crimes it didn’t commit.) In the coming months, we may be told how the five were induced to make their confessions.

Did they come to believe they had committed the crime? Did the police believe they had, or the D.A.’s office-or was this a question of the authorities and the larger community having an impelling need to find and punish? Were they framed-and do we truly want answers to any of these questions?

Somewhere chiseled on the front of every courthouse is the word “Justice,” which, at the minimum, means we don’t put people who didn’t do it in jail. But what if, with the best will in the world, we can’t do justice? What if, in this nation with more than a quarter of a billion inhabitants floating hither and thither, we don’t have the means of doing justice? What if we just can’t get the job done a quarter of the time, or a half of the time? That’s no idle question. What with those mitochondrial DNA tests, new truths about ancient crimes are continually bursting out of the closed case files, as we learn again and again that the jury or the judge-or the both of them, and the appellate courts, too-got it wrong.

The real possibility exists that getting it right in the criminal courts half the time may be about as good as we’re able to make it. Without factoring in such elements as bulging dockets, incompetent lawyers, fatigue, corruption, disinterest and so forth, doing justice may be beyond us. Criminal cases depend, for the most part, on snitches (or informants, if you want to dignify them) and witnesses. Snitches are famously unreliable, since they do what they do for money or get-out-of-jail cards. As for witnesses, however honest and well-disposed to do as the system needs them to do, they fail and they fail and they fail. A large percentage of us can’t correctly see and accurately recall an event if it is one involving speed and violence.

Then there are crime labs and criminalists, those white-coated persons at the crime scene picking up hairs and finding blood traces. It’s all very impressive, especially when you see them in action on the television cop shows, but technology is able to make only modest contributions toward catching and convicting the true perpetrator. Assuredly, fingerprinting (a 19th-century technology), photography, (another 19th-century technology) and the Internet help, but experience shows that they’re a long, long way from making sure we get the right people in the right jail cells.

As the recent sniper case illustrates, all the paraphernalia of modern detective technology availed the authorities nothing. The criminal had to phone in tips on himself to the cops, and do so repeatedly, until the man or men were finally caught. Chief Moose of Maryland’s Montgomery County police caught it in the neck for letting the killer or killers continue to do his/their lethal stuff, but it wasn’t the chief’s fault; he and his colleagues didn’t have the tools. Nobody does. Remember the Unabomber? All the crime labs and all the technology and all the profilers and all the advanced electronics and all the money and all the agents of the federal government were all for naught: It was the Unabomber’s brother who nailed him. So much for modern detective work.

None of this, it should be added, obtains with white-collar crime, where there is a paper trail. They can nail those babies if they are of a mind to, or they can give the suspected white-collar crooks winks, pats on the back and appointments to big-shot jobs-but that’s for another time.

The police are at their best when they have a criminal underworld to operate in. In a known underworld, with its crisscrosses of gangs, associates, established paths of illicit commerce, informants, hangouts, patterned activity, identifiable people with records and comprehensible motivations, the police can sink in, be part of the scene, and therefore find the malefactors and convict them. (Excluded from the Muslim underworld, Western police have it tough in catching terrorists.) If a given malefactor is jugged for the wrong crime, in the greater scheme of things it may be but a minor injustice, since he probably committed a felony of equal or greater seriousness that he got away with. Get ‘em on one thing, get ‘em on another, but get ‘em off the streets. Frame ‘em if you have to, but keep the dayglo-orange perp line shuffling from hood to van, from van to jail, from jail to court, from court to penitentiary. Rough justice, but the only kind we have.

The system of justice depends on a system of injustice-a proposition you are not likely to hear many officials affirm. Indeed, we have an elaborate and costly apparatus, one of whose major functions is to convince us of just the opposite-to make us believe that justice is always done, save in the rare case of the five who confessed, by some mysterious miscarriage of their psychology, to what they hadn’t done and went to prison for it. Our public defenders, our ACLU’s, our appellate courts, our throat-clearings about the Bill of Rights, all serve to reassure us that, while we’re being protected from having our throats slit as we sleep in our beds, only the guilty are being punished, and they for the crimes they actually committed. Even the cop shows on TV-the ones done in that superb style of faux realism-reinforce the conviction that ours is the best criminal-justice system in the world.

Now here’s an awesome thought: Maybe it is.