
Could 'actual innocence' save the broken US justice system? - darrhiggs
http://www.bbc.co.uk/news/world-us-canada-35971935
======
dsr_
Underlying causes include: in many US states, the District Attorney (chief
prosecutor) is an elected position. In many US states, local judges are
elected.

A major winning strategy of the last hundred years or so is the "law and
order" platform, in which the politicians exploit racism, classism and even
ageism to provoke fear of violent crime. The politician promises that they
will increase arrest rates, win trials, and impose higher sentences in order
to protect the [white, middle-class, elderly] citizens from the [black or
hispanic, lower-class, teenaged] hoodlums.

And they win, and they put these policies into effect.

Do they work? Well, they work at getting the politicians re-elected, and
that's the only real success criterion.

It turns out that if you ask Americans what to do about most issues, and you
phrase the questions in non-aggressive ways, and you invoke empathy -- they
mostly agree that treating people kindly is important. That innocence should
be an absolute defense. That everyone should get necessary health care, and
nobody should starve or be cripplingly poor. That people should work if they
can, but not be abandoned if they can't.

But those positions are not very effective for the media and politicians, so
they go with what works for their goals instead.

~~~
talmand
Not that I disagree, but there are examples of the opposite sentiment being
used by elected officials during campaigns to get certain demographics to vote
for them.

------
fsloth
Is the US system really as kafkaesque as the article makes it sound? I.e.
arbitrary decisions by individual officials can ruin peoples lives without a
fair due process, and that the officials have a strong incentive not to be
charitable?

~~~
ithkuil
> [...] After 414 days in the St Clair County jail, he went home.

and this is a success story. A man is free to walk after 414 days of jail
because some enlightened new procedure that allows innocent people be set free
before trial. Somehow reading all this I just cannot help but stare at the
this number: 414. Before a trial [1].

Can this happen to anyone or do you have to enjoy a particular socio-economic
situation to deserve this treatment?

[1] [http://www.stltoday.com/news/local/crime-and-
courts/murder-c...](http://www.stltoday.com/news/local/crime-and-
courts/murder-charges-dropped-in-east-st-louis-
case/article_1ace22ff-c799-5990-98c2-bc468d227915.html)

~~~
toast0
414 days in jail awaiting trial doesn't sound like a speedy trial to me, as
required (but not defined) in the 6th amendment, either.

~~~
drjesusphd
Defendants are often advised to waive their right to a speedy trial to better
prepare a case.

------
ezoe
Polygraph? What kind of joke is this? Polygraph don't prove or disprove the
innocence. It's useless.

~~~
Nutmog
Nor do eyewitness stories. Nor does recognizing someone from a single photo
instead of a proper lineup. These are cases where there's already no reliable
evidence in the first place. Really, they should go to court and it would be
clear they're not guilty but the polygraph just helps shortcut it. Even better
would be no polygraph and just release people when they find they don't have
any reliable evidence.

~~~
roel_v
"but the polygraph just helps shortcut it"

The point is that polygraphs are utter nonsense, at about the same level as
reading tea leaves. Had she failed the polygraph, she'd still be prosecuted.
No judicial process should have a decision point that is stochastic by design.

~~~
vidarh
> Had she failed the polygraph, she'd still be prosecuted.

The article does not support that claim. It might be. But they also
specifically acknoledge that polygraphs are unreliable and seem to use it
mainly as a filter to deter people who are worried they might fail it, and in
parallel they carry out a case review.

> No judicial process should have a decision point that is stochastic by
> design.

In an ideal world, no. But adding an extra decision point where the _worst_
that can happen is that the prosecution that was going forward keeps going
forward, and the best that can happen is that the case gets dropped without
the ordeal of a trial sounds like a substantial improvement even if it doesn't
always work.

~~~
roel_v
" But adding an extra decision point where the worst that can happen is that
the prosecution that was going forward keeps going forward, and the best that
can happen is that the case gets dropped without the ordeal of a trial sounds
like a substantial improvement even if it doesn't always work."

Uh, that's not the worst that can happen. The worst that can happen is that
those who actually committed crimes are let off because they learned how to
'beat' a polygraph, or who just got plain lucky. And if you know already that
your suspect is innocent, then why the polygraph?

Look I understand how adding some voodoo scapegoat to a complicated social
construct can be used to change institutional mores that are impenetrable
otherwise. So in that sense, I have no rational reason to discourage the use
of a polygraph here; just like one can say 'if homeopathy helps people, why
shouldn't they use it? And why shouldn't we finance it from the same means we
finance regular health care?'. From a utilitarian point of view, there is no
denying this. I maintain that it's still bad (maybe not a _net_ negative, but
a negative still) to use acknowledge superstition this way.

~~~
vidarh
> The worst that can happen is that those who actually committed crimes are
> let off because they learned how to 'beat' a polygraph

They would also need to "beat" the case review of the available evidence. If
there is no evidence, they shouldn't be convicted anyway - even if they are
guilty.

------
gnud
... they trusted a polygraph more than the rest of the judicial process. That
really doesn't say anything good about the 'normal' process, then.

~~~
ithkuil
"Piper says that though they know these kinds of tests can be unreliable,
being confronted with the chance to take one can filter out disingenuous
defendants. Regardless of the results of the test - which are inadmissible at
trial due to issues with the reliability of the technology - the assistant
state's attorney (ASA) in charge of the case would also perform a [...] review
of all the evidence."

~~~
SideburnsOfDoom
> though they know these kinds of tests can be unreliable, being confronted
> with the chance to take one can filter out disingenuous defendants

So basically does that mean that although they don't trust the polygraph, they
trust the defendant's trust in the polygraph? That seems shaky and subject to
change.

~~~
vidarh
No, they are saying it filters out some portion of the defendants. The article
_also_ says they carry out a fresh review of the case, and:

"The ASA shall confirm that no other probative forensic testing can be
conducted and that no other witnesses can be identified and interviewed," the
protocol reads. "At the end of this review, if both the ASA and supervising
ASA(s) either no longer believe there exists a moral certainty of the
defendant's guilt or believe there no longer exists a reasonable likelihood of
conviction, then the case shall be dismissed without prejudice."

So, basically: The defendant asserts they're innocent _and_ are prepared to
take a polygraph _and_ there is insufficient evidence or no real prospect of
prosecution anyway.

~~~
SideburnsOfDoom
> No, they are saying it filters out some portion of the defendants.

Yes, they filter out the ones who

\- believe in polygraphs and

\- believe they would fail

------
m_eiman
It appears from the article that if you're wrongfully jailed in the US, you're
not automatically entitled to compensation for lost income and other expenses
caused by the jail time. Surely this must be incorrect?

~~~
mirimir
Nope, that's just how it is.

~~~
anexprogrammer
So someone's life gets ruined, job and home lost, spends time in prison due to
a mistake or worse, and gets no comeback at all?

How is that not a major issue for a media campaign or politicians of one
flavour or another?

~~~
thirdsun
Particularly surprising since the US is such a lawsuit-happy country where it
seems you can expect some form of compensation even for borderline ridiculous
issues. Coffee too hot? Jackpot! Life severely ruined by being wrongfully
convicted? Well, sorry about that.

~~~
talmand
I believe there is some sort of automatic compensation for being wrongfully
convicted in many areas, depending on the court that did the conviction. Being
wrongfully jailed before conviction is a different matter.

~~~
mirimir
It's rather like part of your civic responsibilities as a citizen. Like jury
duty.

------
DanielBMarkham
What a ludicrous idea. Cops break into your house, arrest you for a crime you
didn't commit, take months to figure out they blew it -- then what? You get a
greeting card in the mail announcing that you're actually innocent? Maybe some
flowers?

Sorry, no.

I support the use of force, including lethal force, on violent criminals when
the public is in danger. I support the appropriate use of force otherwise. But
in return for that support, there has to be some kind of feedback mechanism in
place. I understand that workplace accidents happen, and nobody's perfect. But
ruining somebody's life isn't the same as an IT worker forgetting his security
badge one day. "Actual innocence" looks like a gimmick to make the poor rube
you screwed over feel better, not evolve the system to a better state.

As bad as these stories are, my concern is for the next victim -- and the next
thousand after that.

------
IIAOPSW
"Crazy idea: let's not try to put innocent people in jail"

Man whoever thought of that is a fucking radical and needs to be stopped /s

~~~
ithkuil
"Then there's the fact that he had to pay the county $5 per day while he was
on an ankle monitor, plus the cost of a landline to carry the monitor's
signal. [...] She says they're still paying their legal bill in instalments."

Just a thought: if you're wrongly convicted, don't you have a possibility to
get compensation ? But if you're case is just dismissed before even going to
trial, does it mean that the authorities have no obligations to reimburse you
any legal expense you might have had while planning for the worse?

~~~
ZeroGravitas
Depending on who's budget that compensation comes out of, you may well just be
giving another financial incentive to put/keep innocent people in jail.

------
konschubert
> "That's distinct from 'I didn't get treated fairly' [.. ] It's not, 'Some of
> the evidence was obtained unlawfully, there was an incorrect ruling by the
> court, [...] - no, you actually have the wrong person here...they're
> actually innocent."

So there is a difference between real innocence and "we-are-not-able-to-
convict-him-but-we-think-he-is-guilty" innocence? And the prosecutor gets to
decide?

Then why even bother with the due process? Why not let the prosecutor decide
directly? /s

~~~
vidarh
No, they are saying there is a difference between a defendant saying "I did
not do it" and a defendant saying "you didn't have a right to search my house,
so the evidence you found there is inadmissible" or similar. E.g. the
defendants asserting that they did not do the crime vs. those who assert they
should not be convicted of the crime.

~~~
konschubert
My point is that the distinction between "actually innocent" and "not
convicted due to a technicality" basically means that due process is
circumvented.

If the police doesn't have the right to search the house but does it anyway,
it can now turn a person from "actually innocent" to "technically not
convicted". Which is for some purposes halfway to a conviction. This means
that police gets rewarded for doing wrongful searches.

------
Cozumel
Only in America would 'actual innocence' be treated as a novelty!!

------
known
Let Black Police deal with Black Suspects;

[http://www.boston.com/news/globe/ideas/articles/2007/08/05/t...](http://www.boston.com/news/globe/ideas/articles/2007/08/05/the_downside_of_diversity/)

