Tim Bakken

The criminal justice system in the USA is a minefield, a quicksand pit and a haunted gothic horror. It has been built like an old farmhouse, with new rooms and wings attached all over the main structure, so that no one even remembers where the original front door was. Into this morass steps the fearless Tim Bakken and his Plea of Innocence, a suitably horrifying look at the way things have become so dysfunctional, and a look at what could actually fix it.

This time out, Bakken shows how trial by jury came about, digging back to ancient England where bizarre processes were all but guaranteed to avoid justice in criminal cases. They eventually led to judges and juries and rules that made at least some sense, some of the time. In the USA, this developed into an adversarial system, while in most of Europe they also have an inquisitorial system in which judges conduct investigations and prefer charges. Both are defective. In the US version of blind justice, the scales she holds are tipped heavily against the accused – much like in Old England. Bakken says “The adversarial system is no system at all.” It’s just a lot of ad-hoceries.

He says the basic problem with America’s adversarial system is that it demands no connection to truth. The justice system charges someone with a crime, and uses all its resources to validate the charge. The accused, often sitting in jail awaiting trial, has none of the same resources to muster to show innocence. Worse, in the adversarial system, the accused usually does not even testify, for fear of prosecutors bringing up old missteps as proof of criminality. Or worse again, charging the accused with perjury if despite his testimony, he is convicted anyway. As Bakken says, it is “a cruel and illogical irony that there is nothing in the Constitution or law that provides an innocent person with the right to obtain exonerating evidence in the way the Constitution and law provide guilty people with the right to exclude incriminating evidence.” This tilted and unequal playing field is the bedrock foundation of the book.

The adversarial system is theater for lawyers. They can make all kinds of slurs and allegations, even knowing them to be untrue, in order to win the case. Drama, showboating and theatrics are not worthy of the concept of justice, but if the client will remain silent, the lawyers provide the entertainment value instead. It becomes their job to ridicule and destroy any witness for the other side, regardless of damage to the witness’s reputation, honesty, or accuracy. It has come to the point where the American Bar Association “is redefining the meaning of ‘false statement’ so that it does not apply to lawyers who urge jurors or judges to adopt inferences that the lawyers know are false,” Bakken says.

The criminal justice system is totally focused on process. As long as procedures are followed and no important rules are broken, decisions stand. This has led to all kinds of bizarre situations where more than 4% of those convicted were actually innocent, and where the Supreme Court refuses to reverse decisions, even when new proof of innocence like DNA sampling establishes it in long-closed cases. The Court actually refused to halt the execution of an innocent man, because mere innocence is insufficient to overturn a decision arrived at correctly. And the Court (Scalia) was even arrogant about it, claiming the Constitution never promised the convicted anything like justice – just due process. And that the Constitution is perfect the way it stands.

Judicial history has taken many unexpected turns. Judges and juries now “try to protect the defendant and jurors from members of the community, while in the past juries were designed to protect the defendant and the community from the government.” The need for better systems can be seen in studies of juries. Anonymous juries convict defendants 37% of the time, while nonanonymous juries racked up a 22% conviction score. Fear clearly plays a big role for jurors and the justice they mete out. Also, given the opportunity, juries go for much more severe sentences than judges do, though studies of sentencing by judges of the same data end up all over the map too.

Bakken reports that police make more ten million arrests a year, throwing all kinds of lives in stress and duress for years to come. At an estimated 4%, 57,000 innocent people are among them, every year. In a study at the other end of the funnel, only 67% of convicts admitted to being correctly convicted of their crime. Altogether, between prison, probation and parole, 6.4 million Americans were under the thumb of the justice system in 2018 – a quarter of a million of them innocent.

But wrongful convictions are not limited to voluntary pleadings. From a 1932 study, Bakken cites the reasons for wrongful convictions: “mistaken identifications, inadequate lawyering, police or prosecutorial misconduct, false or coerced confessions, and perjury – are strikingly similar to those offered today.” Lawyers and judges have been aware – and complaining about it – for centuries.

About 60 years ago, the country began providing lawyers to defendants who could not afford one. But being government, they did it pathetically. These terribly underpaid lawyers are few and overloaded with work. The government pays them for an entire case what an established criminal lawyer would charge for one hour, Bakken says. Their goal is to get through the ordeal as quickly and smoothly as possible. Discovering evidence to support the truth is not a priority, if it’s even feasible.

The plague of plea bargaining is the subject of numerous whole books. Here, Bakken points out it results in far more incarceration than necessary, but helps the government side stay within budget by avoiding actual investigations and trials. This of course, is the wrong answer to the question of justice being served. Threatening the accused with exposing everything about his family, friends and neighbors, humiliating him at length and for life, only to end up with a huge bill and a longer sentence if he insists on his innocence is enough to make anyone want to cop a plea instead. So 97% of convictions come from guilty pleas.

It is so burdensome and expensive to be a defendant in an American criminal trial that the innocent plead guilty to lesser charges just to be done with it before the trial alone ruins their lives. The rate of innocents pleading guilty in the US is much higher than in similar western nations. So are prison sentences, which many other nations seek to avoid completely.

The Supreme Court has ruled that the accused’s lawyers cannot participate in the search for evidence before trial, because that would occur prior to adversarial judicial proceedings. For those who cannot afford it, “investigation is a word with no meaning, an illusion with no hope,” Bakken says.

Some of the wrongly convicted are eventually exonerated. Among them, 79% were convicted by at least one eyewitness. Eyewitnesses are notoriously unreliable. They can be coached by the police, their memories altered by their own prejudices or the conditions under which they saw the perpetrator. And people do have lookalikes. One way or another, eyewitness accounts are too highly valued in criminal cases. And if the prosecution is obnoxious enough, no number of eyewitnesses to the defendant being 600 miles away at the time of the crime will prevent conviction, as Bakken shows all too easily.

But Bakken keeps returning to the onesideness of the government having all the resources and the accused having none: “It seems magical to believe that truth will appear where no one is responsible for finding it and all the parties in litigation (except government lawyers) are devoted to hiding the truth if doing so benefits their clients.”

There is no shortage of ideas to make the criminal justice work better. Many are self-evident just from reading the situations above. But Bakken goes further, examining ways to make it fair and consistent.

He calls for an office of neutral magistrates, whose job it would be to look at everything about the case, including exonerating evidence the prosecutors are not interested in and the defendants can’t afford. This would, for the first time in the USA, raise truth to an equal level with process.

But the most dramatic change would be to allow the accused a third choice beyond guilty and not guilty: innocent. By pleading innocent, the accused would open a whole new avenue with prosecutors. It would allow him to tell them what actually happened, where he was or wasn’t at the time and any other facts that might exonerate him. This would be pre-trial, not under public cross examination with all its accusations and personal histories. The interview would not be admissible evidence itself, precisely because the accused would not be examinable on the stand and did not make statements under oath. But it could and should set off an investigation that might exonerate him.

It’s one of many great ideas, and like all of them, there seems to be no way to implement them. Bakken gives readers no clue how any of this might ever come to fruition. It doesn’t deter from the knowledge and perspective readers will gain from the book, but it adds to the sadness of it all.

It seems I have been reading rather a lot on criminal justice, a fascination with dystopia, perhaps. I have not only reviewed Bakken’s excellent previous book, The Cost of Loyalty, (see https://medium.com/the-straight-dope/im-from-the-military-and-i-m-here-to-help-a... ) on military justice (I am amazed he is still teaching law at West Point after publishing it – which is why I called him fearless off the top), but I’ve also reviewed many of the books he cites as sources in this new volume. He is most definitely a worthwhile read in matters of criminal justice.

David Wineberg… (mehr)

The US military has an unassailable reputation it does not deserve. From the inability to win a war to the worst schools and rampant criminal activity (drugs, rapes, bribes, massacres), the military sets the worst example in every sphere. In The Cost of Loyalty, Tim Bakken, a civilian law professor at West Point, has dug up and assembled a litany of failure, and failing with arrogance and pride. It reads like an Auditor General’s Report – endless examples of incompetence, bias, total disregard for the constitution, wasted money and unindicted criminal activity. Its actions lead to deaths in the millions. Its extravagance costs taxpayers trillions.

Lest you think I exaggerate, here’s what Bakken says right in the preface: “The conditions for individual and organizational failure are pervasive inside the military: loyalty over truth; isolation; censorship; control over everyone; manipulation of the media; narcissism; retaliation; and callousness.” And he hasn’t even started.

West Point, the army crown jewel since 1802, is far less than it appears. Bakken shows it fraudulently pumps up its stats to show how exclusive it is. It says only 9% get accepted. However, they include as applicants any kid who just asks for an information packet. The truth is West Point accepts well over 50% of actual applicants, because it has to.

Their quality continues to plunge. For one thig, the forbiddingly high rejection rate scares off many potential (decent) students. For another, they take on athletes with zero academic qualifications to help boost constantly failing sports teams. Third, they take large numbers of sub-marginal high schoolers and put them in prep, where they get paid $1000 a month, and still do not become academic bloomers, just more poor students when they become cadets. Fourth, more than a quarter of cadets have SAT scores in the 400s and 500s, putting them in the bottom 40% nationally. (SAT scores alone put the military academies outside the top 100, despite their self-promotion as top schools.) Fifth, when they graduate (debt-free) to guaranteed lifetime careers in the army, 50% have lower health/fitness scores in than when they were accepted. (In civilian society, this is called destroying value.) Bakken says many can’t even read. But they will spend billions, plan wars, lead others and make decisions affecting civilians’ lives and deaths as generals.

What they can do is go wild. Women face five times the rate of sexual assault in military academies (one woman in four) as they do in civilian schools. Getting caught committing a crime results in a wrist slap, if anything. The real punishment is saved for whistleblowers, who are fired, not renewed, reassigned, transferred out or hounded out as needed. There is no room for truth in military academies. Retaliation is endemic at all levels.

Military personnel cannot sue the military. Military academies are exempted from constitutional constraints. Academies are not even covered by Title IX regulations. “The system is specifically designed so that the victim, whether cadet, soldier, or officer, has no recourse,” Bakken says.

To get in, future-cadets’ parents bribe congressmen to nominate them. This was the top news story for months in the civilian sector, but it has gone on for years with zero controversy in the military. Instead, it’s a requirement.

The result, says Bakken, is that the military is run by C+ students. But that is only the beginning. They are taught by military professors without doctorates. Many don’t even have experience in their subject; it’s just an assignment for them. They are rotated through with no commitment to their subject, research or publishing. The curriculum is heavily weighted towards engineering. Not managing situations or people, not other cultures or even the history of war. Foreign languages are taught by non-speakers. Graduates are essentially completely unprepared for the military career ahead. And yet, soldiers maintain military experience is interchangeable with any level of other expertise, according to findings by Joan Johnson-Freese, US Naval War College, Annapolis.

Among the many needless ironies in the book, the basic one is that the military, charged with defending freedom of expression, prohibits it among its members and civilian instructors. This extends up to the highest ranks, where not disagreeing with the Defense Secretary on troop levels or the President on an invasion has led to endless unwinnable wars, thousands of American deaths, hundreds of thousands of locals’ deaths, and endless guilty consciences for not having spoken up at the time. It’s all about protecting your own career, at the expense of everyone else – millions worldwide. Say little to your peers and never disagree with a superior. That’s the military path to the top, Bakken says.

The result has long been insane strategies promulgated by incompetent generals who have no realistic vision of the game before them. Bakken says they have prepared the military for a war with Transformers, not with guerillas, religious radicals, local insurgents or millions affected by the ruthless, bloody and cruel US soldiers. The ultimate gaffe is to hand all decision-making to the military itself. The founders were so fearful of the military they made it subservient to the civilian administration on purpose. Ultimate decisions must come from civilians. But Donald Trump handed Defense Secretary General James Mattis carte blanche to do whatever he wanted in Afghanistan, with the predictable outcome of total failure at the cost of hundreds of thousands of civilian lives. Not only is Afghanistan still majority-held by the Taliban, but the military has turned the whole country against the USA for its hatred, brutality and ignorance. Meanwhile, back in Washington, the military lies all day long about its victories, achievements and successes in subduing the enemy and implanting democratic freedoms throughout Afghanistan. Where there were hundreds of terrorists before, today there are hundreds of thousands, anxious to take revenge. The US military makes the world far more unsafe with every campaign it mounts.

Bakken says American soldiers consider themselves warrior kings, able and free to destroy others at will. And the military will protect them and hide their deeds as best it can, by lying and avoiding. If word does get out, the military relies on the tiresome, inexcusable excuse that it was not intentional, and therefore not a war crime. Bakken show the US all but completely ignores international treaties and human rights agreements, including, if not especially, the US constitution. It sets up multiple future conflicts for each one it wages, worst of all on US soil. For which Americans continually express eternal gratitude.

All this might be okay if the military was competent at its main job – winning wars. But it isn’t. The most damning charge in The Cost of Loyalty is that the generals are incompetent grandees with giant private planes and unlimited privileges. They rely on their own gut instinct without consultation, and they fail, every time. The last general to win a war graduated West Point in 1915. That was Dwight Eisenhower. The rest seem to have learned nothing.

Even in their own war games, the opposition crushes the USA, nailing its planes on the ground, overcoming control centers, and causing leaders to end the games early because there’s nothing left of the US team to overrun. The Taliban are more nimble, al-Qaeda more resourceful. Everywhere, natives hate the Americans supposedly defending them, because the Americans slaughter the natives at will and en masse. Meanwhile at West Point, they teach cadets marching songs about torturing and wiping out hadjis - the military slang for arabs.

Worse perhaps, the military continues to usurp power from the government. In both Korea and Vietnam, generals (McArthur, Westmoreland) secretly moved to use nuclear bombs to wipe out the enemy, but were caught and prevented from doing so. Today, the military simply disregards the civilian world and operates separately, under its own system, totally incompatible with American values and laws. This is precisely what the founders feared and why they refused to have a standing army at all.

As for Tim Bakken, the only reason he can write such a book and not be fired is because he continues to work at West Point under court order. The military already tried to harass him out as a whistleblower, and it resulted in an order to keep its hands off him. This book could not have been written otherwise.

David Wineberg… (mehr)