While waiting for the Brittany Higgins hand-grenade to explode so that I can revel in the political fallout, I’ve been waiting for something to trigger me all week.
It’s testament to Joe Biden’s promise that his presidency would be unremarkable. The Blessed Joe’s silence is evidence of an administration hard at work. Sure, there’s been a bit of snow in Texas. Sure, 500,000 US citizens are dead from the Trump Virus. But how refreshing to focus on something other than a fat orange twittering clown: the rape of Brittany Higgins, for example, the historic Mars landing!
But now, this: Aimee Ortiz writing for the NYT reports “Official misconduct played a role in the criminal convictions of more than half of innocent people who were later exonerated“. On the face of it, as a by-line it telegraphs what’s coming. Yep, here we go again, another swipe at cops.
The National Registry of Exonerations have wrathfully reported that “official misconduct contributed to false convictions in 54 percent of exonerations” with men and capitalised-b Black exonerees “modestly” more likely to be victims of this latest outrage.
Hmm. Not much of a premise to hang your journalistic hat on just yet, I would have thought. Like, so what?
After quoting motherhood statements from a professor emeritus for added gravitas (because virtue-signalling sounds a bit tinny and subjective without it) Ortiz summarises a 218 page document into a few glib take-aways: that the report “condemns” the criminal justice system, that it “supports the BLM critique“, and that the system is rife with corruption “of the racist sort“.
Then Ortiz feeds all the honest police and prosecutors out there a delicious shit sandwich:
“In fairness, this report doesn’t make the case that both prosecutors and all police are somehow racist, but it certainly demonstrates that there’s a disparity, and there’s a consistent disparity in the sort of wrongful convictions.”
As a former prosecutor, albeit from an alien jurisdiction, I had to read the 218 pages myself. Prosecutors are like that: We read stuff, then go to work with the evidence that’s before us. Not evidence that comes to light later, which is the official basis for exonerations in the US. I’d draw you the funny cartoon we had on the wall in our office which plotted the probability of conviction against a police officer’s “care factor” but I won’t. It’s too depressing. Most criminals get off scott-free. That’s “justice” for ya.
But, importantly, you need to read the definition of “exoneration” here first.
Sadly for Ortiz, her rant is undermined in the first pages of the Report, which disclose that capitalised-b Black exonerees were only slightly more likely than uncapitalised-w whites to have been victims of misconduct (57% to 52%).
Slow news week, Ortiz?
From the get-go, the Study sets itself up as a mine of BLM propaganda. It’s ambit — “misconduct that produces false or misleading evidence that is used to convict innocent people, or that conceals true evidence that could help clear them.” — is undermined by it’s true purpose, and that is to keep the BLM fires burning.
Skipping ahead, they eventually disclose this: “In the Registry, and throughout this report—the categories “White” and “Black” do not include individuals who identify themselves as Hispanic or Latino. We do not discuss patterns in exonerations of Hispanic or Latino defendants (except in passing)” — so, what, forget Asians? Does this mean Asians are guilty of all their crimes?? I knew they couldn’t be trusted!
Lol. Anyway, but also, the Report NEVER capitalises white except for a single ‘White’ on page 62. Black is Black throughout. Sets the tone, right?
In any case, the Report concerns itself mainly with five categories of misconduct: Witness Tampering, Misconduct in Interrogations, Fabricating Evidence, Concealing Exculpatory Evidence, and Misconduct at Trial. Inexplicably, the Report ignores misconduct by criminal defense attorneys despite acknowledging that “their misconduct and incompetence may do as much to produce false convictions as misconduct by prosecutors and police officers combined.“
After that bombshell admission, the Report loses further credibility with overt declarations of anti-police bias. Citing a bunch of cases from Houston, Texas, the authors impugn: “None of those cases included any police misconduct, but that doesn’t mean none occurred.” I’m tempted to add an exclamation mark because you sense how eager the authors are to claim some blue scalps.
Very quickly, the Report brushes aside crimes other than homicide. Why? Because the rate of exonerations segues nicely with the BLM narrative. More capitalised-b Blacks are arrested, tried and falsely convicted by corrupt police and prosecutors (and courts, but let’s not think about that, the Report doesn’t) for murder than anything else. We’re treated to cherry-picked cases demonstrating how ‘scorched-earth reinvestigations’ uncover exculpatory facts hidden by those evil cops.
I wonder how many traffic citations the authors of this study amassed prior to publication, because they get to “RACIAL PATTERNS” uber-fucking quick. Because the ratio of Black-v-white exonerees overall is disappointingly narrow, they jump straight to the BLM-favouring murder stats again. You can imagine the authors on a mountain somewhere, silhouetted against the rising dawn, wrapped in BLM flags while holding a beacon against the dark: “There is no doubt that race plays a role in the conviction of innocent defendants in America!”
Not just America, apparently. But yes, my exclamation mark. And we’re only at page 61!
When examining the rate at which police officers are disciplined for misconduct revealled by reinvestigations leading to exonerations, the data (79% of officers were criminally convicted, 20% were disciplined) is disputed by the authors, who describe it as ‘misleading‘ with the weakest argument to justify this allegation. Oh go on! Just once, be honest — admit that the tiny fraction of cops who are detected for misconduct are punished: my math is shit, but 79 + 20 = 99% punished.
The authors also fail to acknowledge that many more than 1% of capital-b Black offenders get away with crimes after investigation, arrest, indictment and trial — even for murder — because courts properly apply the laws of evidence and acquit them. Sucks to be a victim, eh? And, like the whipped media, I won’t mention Black-on-Black violence or that most criminal offences are intraracial. No, no, we read on!
In concluding their Report, the authors propose improvements to policing methodologies and how criminal matters are prosecuted.
I was stunned, for example, to learn that (a) ID parades ren’t conducted by officers uninvolved in the case, nor are they video recorded. I was shocked to read that (b) interrogations aren’t recorded, and can go for days! I remain perplexed that (c) police can lie during interrogations to extract a confession (Frazier v. Cupp, 1969; Oregon v. Mathiason, 1977; State v. Nightingale, 2012).
In this, the US is fifty years behind Australia, if not more.
We’re not without our own law and order problems here in Oz.
But having worked in the criminal courts day-in day-out for over a decade, I can say the biggest problem is not cops or prosecutor corruptly leading to the unlawful imprisonment of innocents, but a criminal justice system that finds itself increasingly stymied from protecting innocents from crime.
Nowhere in the Report are victims of crime acknowledged. Aren’t they important? No attempts were made to draw a ratio between safe convictions and exonerations. Is it 1:100? more likely 1:1000000. Instead, we get hearsay: It’s only the tip of the iceberg! We’re understating the facts! It’s much worse than you think!
Hmph. If the authors and Cortiz are really interested in the law, then how about we abide by some universal legal principles:
Ei incumbit probatio qui dicit, non qui negat is quite apt.
Loosely translated, it means he who asserts must prove. BLM have a point, but do sweeping anti-police generalizations help? I’d never escape alive if I tweeted a derogatory stereotype about a capital-b Black, but it’s okay to suggest all police are corrupt? That the entire justice system is corrupt? Fuck off with that. Let’s see the evidence.
Secondly, maybe Blackstone’s ratio (“Better that ten guilty men go free than one innocent man stand convicted“) needs reformation. Do we really agree with this? The foundations of Western law are the presumption of innocence, and the burden of proof. Without police and prosecutors (and yes, courts) working tirelessly to investigate, identify, apprehend, indict and convict felons, who protects society?
But to all the SJW’s out there marching in their BLM bandanas, waving their LGBTQI+ flags, setting fire to police cars and spitting in cops’ faces — compared to what? Your privileged, untroubled, affluent lives are worse compared to what? If you don’t like it, leave. Try your shit with the constabulary in Russia, or with those badass Indian cops with their lathi.
Police misconduct is not a trivial matter, it demands reform, but let’s get some perspective.