Unfair (32 page)

What if, during an interrogation, a detective continues probing after you've requested an attorney and you confess to a heinous murder? It doesn't matter if it's the only evidence in the case and proves without a doubt that you are the perpetrator; a judge won't let it before a jury.
But if you
waive
your
Miranda
rights—as roughly 80 percent of suspects end up effectively doing—the fact that your confession is false will be treated as irrelevant: the waiver itself is taken as proof that your admission of guilt was uncoerced and reliable. Check the procedural box at the outset and the legal system is satisfied.

If we were truly concerned about substantive justice, that would never be the case.
To begin with, it would matter that suspects don't understand their constitutional rights in about one million criminal cases—about 10 percent of the total—each year.
We would address the fact that roughly one out of every three pretrial defendants believes incorrectly that if he remains silent after being arrested, his silence can be used against him at trial.
And we would care that the vast majority of those who waive their rights are the innocent, the young, and those with mental disabilities: these are the people, after all, that we claim to most want to protect.
Most critically, we would pay attention to what happens after a
Miranda
warning is read, and we would not stand for interrogation procedures that routinely produce false confessions.

But we seem to have forgotten that the purpose of guaranteeing the form of justice—the procedure to be followed, each
and every time—was to ensure substantive rights, like liberty, privacy, security, and equality. We are now all form, substance be damned. We sleepwalk through the motions. All that matters is whether the right regulation was followed.
And that allows for truly absurd results, like the false-confession case of Eddie Joe Lloyd, whose answers to police questioning were considered voluntary because he had been advised of his rights—even though his interview took place inside a mental hospital where he had been involuntarily committed with debilitating mental illness.

Worse still, when following protocol is the sole concern, it becomes acceptable to work around the rules in ways that deeply infringe the principles that motivated the creation of the protocol in the first place.
Police departments, for instance, teach investigators how to deliver a
Miranda
warning so that it is most likely to be misunderstood and ignored.
Officers are encouraged to bring up the warning as a casual aside—and not at the moment of arrest, when a person is most likely to be considering his rights.
When the
Miranda
doctrine was first introduced, cops were worried that it would severely limit their ability to gain confessions, but in fact it has turned out to have a minimal effect on police work, precisely because it is so easy to work around.

The same may be said of the historic ruling that ended stop-and-frisk practices by the NYPD: the decision was met with strong resistance by law enforcement and cheered by rights activists, but the new requirements are easily evaded.
There is nothing preventing an officer from picking out a black man on the street and frisking him for weapons; he just has to make sure that he checks the right procedural boxes related to “reasonable suspicion” (for example, is the man standing in a high-crime neighborhood, and did he run away when the officer approached?).

The complexity of our procedural rules—and the work we have put into developing them—creates the illusion of fairness. And that makes it all the more difficult to address the problems that plague our system. Ironically, it may be harder to eliminate
false confessions when there is an ineffective set of procedural rules aimed at preventing them than it would be if there were no protections at all. With elaborate structures in place, it appears that we've addressed the issue, and anything that is not barred at the gates is given little or no scrutiny—it's assumed to be legitimate. The horrible truth is that in prohibiting the torture of suspects and requiring that arrestees be Mirandized, courts made lying to suspects seem more justified—a necessary tool for the police whose work of keeping us safe became more difficult.

If we heeded the evidence on false confessions or focused on core principles of justice, we would never let detectives lie to a suspect, telling him that an accomplice fessed up or that DNA evidence connected him to the crime.
And it is revealing that most people don't understand that detectives are allowed to do this. When the general population assumes that a popular police practice is prohibited because it's unfair, it should raise a red flag. When rapists and murderers—the least rule-abiding among us—assume the same thing, it should set off fireworks.

Not everyone, though, is naïve about the “real” legal system—the manipulations, the loopholes, the human weaknesses and quirks. And the final challenge to addressing the hidden unfairness in our midst has to do with inequality: specifically, the unequal access to the truth about how legal actors perceive, think, and behave.

Some participants in criminal law cases are much savvier than others when it comes to human behavior. And these powerful individuals and institutions are already exploiting the weaknesses in our legal system for their own gain. What does that mean in practice? If you are rich and connected, you go free. If you are poor and uneducated, you go to prison.

A major source of the disparity has to do with how knowledge is disseminated in society. As we've seen, researchers are producing an ever-expanding pool of data about what really moves police
officers, judges, jurors, and others. The problem is that for much of the population, there is no point of entry.

For one thing, the commercial publishing industry has adopted a model based on amassing and then holding back this valuable resource for all but the most elite consumers.
In recent decades, large companies have swallowed up many previously nonprofit scientific journals, and prices have soared.
When a single journal subscription can cost more than $40,000 a year, most of the public is kept on the other side of the paywall.

This wouldn't matter so much if there were a serious effort to summarize the findings for a broader audience and draw connections to active policy debates. But the translation project is stymied by legitimate concerns about taking scientific data to the public “too soon.” Many researchers are reluctant to point to the practical applications of their work, lest they be accused of going beyond their data.
And there will always be a danger that when journalists report on studies, they will distort the findings or omit important nuance. Many academics also worry about the appearance of bias that can creep in once one is associated with a particular policy recommendation.
A scientist who advocates changes to the system based on her research is often seen as a scientist who brings an agenda to her data collection and analysis. Better to keep one's attention on the science and focus on reaching other academics, at least until the research is firmly established.

But as the public waits for replications, others are carefully reading the preliminary findings.
They are trial consultants, members of a rapidly growing half-a-billion-dollars-a-year industry focused on bringing the insights and methods of social science to the world of litigation.
Before the 1970s there was no such thing as a jury expert or a witness preparation guru, but today there are over six hundred firms in existence, and they exert a significant force on our criminal and civil legal systems.
In major litigation, trial consultants are now used as a matter of course.

Interestingly, these consultants are not primarily lawyers: in
one survey, only 5 percent of consultants had a JD, and only 11 percent reported any background in law.
Rather, they are social scientists: about half of trial consultants hold a PhD, and about half are trained as psychologists (with obvious overlap between the two groups).
As one litigation consultant explained, “Basically, jury consulting is applied psychology….We'll read studies from
The Journal of Applied Psychology
or
Law and Human Behavior
. We are practitioners but pretty much everyone here could flip and become an academic.”

And, in fact, it is academics who are credited with launching the field.
One of the first and most prominent cases involving consultants was the 1974 trial of Joan Little, a young African American woman from North Carolina who was charged with murder in the death of a white prison guard at Beaufort County Jail, where she was locked up.
Little claimed that the guard had raped her and that she had stabbed him with an ice pick in self-defense.
A group of scientists led by John McConahay, a psychology professor at Duke, decided to offer their services. The first step they took was to survey county residents concerning their feelings about the case, as well as their general attitudes on matters like whether black women are inclined toward violence. By providing evidence that potential Beaufort County jurors were twice as likely as those in other jurisdictions to have made up their mind that Little was guilty, McConahay and his colleagues helped get the trial moved to Wake County, a significant benefit to the defense.
In addition, the team collected data in order to figure out which traits and preferences suggested that a juror would side with the defendant and used this information to strike jurors with authoritarian views who were older, Republican, and less educated.

Although the trial dragged on for five weeks, the jury acquitted Little in just over an hour.
Some critics now question the ultimate impact of the jury research, given the seeming weakness of the prosecution's case against Little, but McConahay's team helped pave the way for modern trial consultants.

The team's methods live on.
It is still standard practice before a trial begins for consultants to collect information on the
potential
jury pool, discover any correlations that exist, and then target a sympathetic jury.
Actual jurors are generally scored and ranked in terms of how closely their responses align with the ideal pro-prosecution or pro-defense panel member.

Today, though, trial consultants provide many other services, including assisting with overall strategy development, presentation effectiveness, deposition preparation, media relations, and negotiation. Their advice is based not only on existing psychological and marketing research but also on their own data collection in a case.
Trial consultants may put together focus groups or stage full mock trials to test out particular approaches, theories, witnesses, or pieces of evidence; employ shadow jurors to watch the actual proceedings and provide feedback; and conduct post-trial interviews to better understand juror decision-making and develop strategies for future cases.

This all seems beneficial—a natural development in the pursuit of more effective and complete legal representation. So what's the problem?

Historically, the big concern has been charlatanism and the difficulty of assessing whether trial consultants make a significant difference to the outcome of trials. But with the industry rapidly becoming more sophisticated and honing its practices, the major issue for the future is access: who will get to enjoy consultants' services and who won't?

The expansion of the industry has been fueled by attorneys representing corporations in complex civil suits with hundreds of millions or billions at stake.
The result is that trial services are now very pricey, with fees averaging around $250 an hour and some significantly higher.
Jury consultants are commonplace when the rich and famous are dragged into court: O.J. Simpson, Martha Stewart, Calvin Broadus (aka Snoop Dogg), Robert Blake, and the Menendez brothers all used trial consultants for their criminal
cases.
And it's part of the standard defense package for highrolling white-collar defendants.
But those with fewer resources have often been left to fend for themselves. That's fundamentally unfair.
Justice Hugo Black was right when he wrote, more than a half century ago, that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”

And the gap between the haves and have-nots is only going to widen. For those at the top, crime really does pay—and the more you make, the more access you have to those who can help you game the system. And the more you have that power, the less likely the government is to investigate you, prosecute you, or take a hard line in plea bargaining, because they know that they aren't going to win at trial. There's a reason that this book about unfairness hasn't talked about white-collar crime: those who engage in corporate self-dealing, illegal accounting schemes, and securities fraud get more than a fair deal.

For those at the bottom, by contrast, the lack of access initiates a devastating downward cycle. You can't stop losing, because every time you return from prison, you are in a worse position to gain the help you need. Each new sentence keeps you away longer from gainful employment, education, and personal connections. You never have the chance to build up the necessary capital to buy in to the secret world that hedge-fund fraudsters take for granted. And you pass on the curse to your children: when you're incarcerated, they, too, are less likely to go to college or rise out of poverty. Entire inner-city communities become locked into this self-reinforcing inequity, while gated ones across the river are able to secure wealth and success for generations to come.

The cruel irony is that the trailblazers of the trial-consulting industry were motivated by a desire to defend the poor and vulnerable.
Like those who assisted Joan Little, the sociologists involved in the first example of modern trial consulting two years earlier sought to ensure basic fairness for others, not to make money.
Seven antiwar activists—six of whom were Catholic
priests or nuns—stood charged with conspiring to raid federal offices, blow up steam tunnels in Washington, D.C., and kidnap Henry Kissinger to bring an end to U.S. involvement in Vietnam.
The government elected to stage the trial in Harrisburg, Pennsylvania, a strongly conservative city with a low percentage of Catholics.
Jay Schulman and his team, concerned that the jury pool would be heavily biased in favor of the prosecution, initiated a pretrial research study to try to learn which characteristics of community members were most closely linked to their likely verdicts. The purpose was simply to negate the government's unfair advantage—to even the scales.