Editorial:
Reasonable
Doubt
Routinely
4/4/03
David Borden, Executive Director, [email protected], 4/4/03 Several years ago, a friend and DRCNet supporter commented to me that the information we provided him in his e-mail was always bad news, important but depressing. A couple of years later, he told me the news in DRCNet wasn't all bad anymore; some of the news was actually good. This past week brought some very good news, though still incomplete, the repudiation by Texas officials of the infamous Tulia incarcerations -- which I described as the "Tulia Lynchings" in a previous editorial -- and the likelihood that all of the Tulia convictions will be vacated and the remaining defendants released and not re-tried. Jeff Blackburn, an attorney who labored effortlessly for years on behalf of the Tulia victims, discussed the larger problems in the criminal justice system of which Tulia was just one famous illustration, and some legal reforms that he and other advocates are pressing for in Texas, including a bill actually passed last year that requires that testimony given by informants be corroborated. Blackburn doesn't feel this goes far enough, however; he thinks the testimony of police officers should have to be corroborated too. On the face of it, some might consider this extreme and reflective of an "anti-police" viewpoint. But it is neither. One need not believe that all cops lie, nor even that most lie, to recognize that perjury and other misconduct by police officers is a significant problem -- this weekly newsletter runs a "corrupt cop" story every issue, and we never have trouble finding one -- and this concern is not limited to "radicals" or defense attorneys. Dr. Joseph McNamara, for example, former police chief in Kansas City and San Jose, early in his career a beat cop in New York City under Commissioner Patrick Murphy and now a fellow at the conservative Hoover Institution at Stanford University and no enemy of police, has described the problem eloquently. At the 1995 conference of the Drug Policy Foundation in Santa Monica, he ridiculed the obvious fabrications presented in courts routinely by police officers in drug cases, saying, "it boggles the mind, how many defendants do give consent and get searched when they have drugs on them, and say 'Sure, officer, open my trunk.'" McNamara and others have described the term "testi-lying," a well known phrase in modern drug war policing. Even if police perjury were not half as prevalent as McNamara has described, the phenomenon would still present a fundamental hindrance to the reliability of police testimony in trials for the purpose of obtaining criminal convictions. Our system of justice requires defendants be deemed guilty beyond a reasonable doubt, if they are to be convicted. Reasonable doubt doesn't mean one individual's word against another's, nor even a probability of guilt in the opinion of the juror. Reasonable doubt means the evidence is so strong that there is extremely little probability of innocence. Logically, the uncorroborated testimony of an individual cannot be considered to be beyond reasonable doubt, if the class to which that individual belongs has a record of unreliability in testimony -- even if most members of that class are reliable. This is not an extreme statement or an anti-police statement; it is an objective statistical conclusion as to what it takes in today's society and criminal justice system to be reasonably certain the person sent to prison or jail is actually guilty. This is not a comfortable conclusion; it is a conclusion that would fundamentally shake the foundations of drug war policing if implemented to its logical conclusion. But it is an accurate line of reasoning, for which I've never heard a solid argument in opposition. Simply, if we respect the principle of requiring guilt beyond a reasonable doubt to secure a conviction, and if we are lawful and obey the rules which mandate that standard, then Blackburn's proposed policy should be fully implemented, new law or not. The fact that this has not already been done shows that judges and jurors en masse have not respected that principle. It is tragic that the standards in US criminal justice have deteriorated to such a degree that this is necessary. But that is a reason to reform the policies driving the problem, not to dilute an all-important tenet for protecting the innocent that has stood for centuries. Hence, Blackburn's proposal may be the only way to restore integrity to the system and to prevent more Tulias -- and the more routine individual injustices -- from recurring again and again.
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