When it matters most, what does it matter?

During law school, I discovered a principle I call, When It Matters Most, It Matters Least.

An example in a non-legal context: let's say you have a friend or spouse with whom you have a policy of "no secrets." The problem is, you did this one thing once, that if you told them, it would destroy the relationship, so you make the determination to keep that one thing secret. That may be a perfectly valid conclusion, but it completely undermines your policy of "no secrets" so that it's more of a policy of "no secrets except for the things you'd most want to know." When it matters most, it matters least.

In the legal area, there are three whoppers.

Whopper 1: The process of asking questions of potential jurors to determine their suitability to serve on a jury for a particular trial is called "voir dire" (generally pronounced among non-French lawyers and judges to rhyme with "more tire"). According to Supreme Court jurisprudence on the matter, in a normal trial, the lawyers are forbidden from asking the potential jurors about their willingness to impose a particular sentence. The reasoning is that it taints the juror's deliberation because it gets the juror to start thinking of the defendant as guilty.

Except that rule is completely suspended in death penalty cases. In death penalty cases, jurors are required to be specifically asked whether, should they find the defendant guilty, they will be willing to follow the law and impose the death penalty. It's called "death qualifying" a jury. The reasoning behind this gigantic exception is that, because the law allows the imposition of the death penalty for certain crimes, jurors shouldn't allow their personal objections to the death penalty to keep them from frying someone. Of course, the courts haven't explained why, if they're worried so much about planting a seed in the jurors' thinking in normal cases that they preclude questions about punishment during voir dire, they don't seem troubled by it when the stakes are even higher in the capital punishment context. When it matters most, it matters least.

Whopper 2: In a normal age discrimination case, you're required to prove the employer intended to commit age discrimination. The problem is, you can almost never find the smoking gun statement which proves the employer's intent to fire someone because he or she is old. Instead, parties alleging age discrimination are allowed to establish intent based on a pattern of discrimination. That is, if you can prove that your company habitually fires people the day before they turn 65, that's sufficient to establish intent.

Okay, in a landmark Supreme Court decision called McClesky v. Kemp, the Court was presented with some pretty strong evidence that there is a racial bias in the imposition of the death penalty. Specifically, a fairly rigorous scientific study determined that, while the race of the defendant doesn't have a huge impact on whether the defendant gets the death penalty, the race of the victim does. That is, people who are black are slightly more likely than people who are white, all other things being equal, to get the death penalty, but people who kill white people are far more likely than people who kill black people to get the death people. And if you're black and you kill a white person, forget about it.

But the Supreme Court ruled that, essentially, this discrimination is simply too pervasive to address or remedy. If they were to recognize the overwhelming racial bias so endemic to the criminal justice system, the entire house of cards would collapse and cease to function. So, like a teenager with her hands over her ears yelling, "La, la, la, I can't hear you!", the Supreme Court ruled that it would ignore the study regarding racial bias in in the judicial system and not change a thing. When it matters most, it matters least.

Whopper 3: One of the mainstays of almost any criminal prosecution is eyewitness testimony. If a witness can say, "Yes, I saw John Doe strangle his wife," a jury will convict. I was in law school during the time of the O.J. Simpson murder trial. My professor in Evidence, who had been involved in a number of murder trials, explained the verdict to his confused classroom by saying that murder cases that lack an eyewitness to the murder, as the Simpson case lacked, almost never result in convictions, no matter how strong the other evidence.

However, there is a scientific study which raises significant questions about the veracity of eyewitness testimony. The study doesn't say people get things wrong; its conclusion is more subtle. What the study says is that there is no correlation between the accuracy of the eyewitness testimony and the certainty with which the witness proffers the testimony. In other words, a witness who says, "I think I saw John Doe strangle his wife, but I could be wrong," is just as likely to be accurate as a witness who says, "I am 100% certain I saw John Doe strangle his wife."

Which helps explain the testimony of rape victims. It is not uncommon for rape victims to testify, "I am 100% certain it was John Doe, who is now sitting at that table, who raped me. The whole time he was raping me, I was staring at his face so I could pick him out of a line-up later." But, as we now know from all the rape convictions which have been thrown out based on newly-admitted DNA testing, even some cases with testimony as unequivocal as what I quoted, sometimes sympathetic, unequivocal rape victims identify the wrong perpetrator. Now, this would be mitigated somewhat if a defense attorney could introduce into evidence the study I referred to regarding the relative accuracy of eyewitness testimony -- it would help juries give the testimony the appropriate weight.

But no. Again, courts have ruled that this study is inadmissible in court. (Lawyers and judges love scientific studies, except the ones which apply to them and their legal system.) The courts stated that eyewitness testimony is a bedrock of the legal system, and allowing the introduction of a scientific study which would undermine its role would undermine the entire legal system so -- again with the hands-over-the-ears "La, la, la, I can't hear you!" -- the study cannot be introduced at trial or its contents argued before a jury. When it matters most, it matters least.

But, as they say, the truth will out.

As I alluded to above, the steady parade continues of defendants being released who were wrongly convicted based on eyewitness testimony (and, let's not overlook, shoddy police work), and have now been freed based on DNA evidence. The most recent member of the parade is Luis Diaz, released August 3 in Miami, Florida, after serving 26 years for multiple rape convictions, now all overturned.

Now, the release of these wrongly convicted men may call for a day for rejoicing, but it hardly returns things to the status quo ante, nor does it relieve us, as a society, from being responsible for the legal system that wrongly imprisoned these men for decades. The importance of releasing these men and allowing many still in prison access to the DNA testing which could prove their innocence cannot be overstated, but it still doesn't give these men their lives back. Nothing can. The civil rights mantra is true, "Justice delayed is justice denied."

On the other hand, as much as the cynic is tempted to belittle those who would find comfort in delayed justice, there is absolutely no denying the unmitigated joy on the faces of these men as they are released from prison, and when I see those pictures, my cynicism just melts away. Perhaps no one more than they understands that, as John Claypool, Episcopalian priest and writer, has said on many occasions, "Life is gift, and birth is windfall," and that despite life's pain and injustice, "I wouldn't have missed being born for anything." (To read the sermon from which this quote is lifed -- one of my favorites -- go here).

Our system let these men down. It allowed them to rot behind bars, largely without regard. But being wrongly convicted, and even being wrongly viewed as a rapist or child molester by their closest friends and family didn't change the reality that these men were innocent.

I don't know what the answer is. Obviously, allowing defense attorneys to present evidence at trial which would call into question the weight given to eyewitness testimony would be a start. So would more meaningful opportunities for post-conviction review of exculpatory evidence.

I don't know what the answer is, but because of the vagaries of fate and DNA testing, we all now know that a substantial portion of our prison inmates are innocent, and we must redouble our efforts to find out which ones.

Because sometimes, even if not everytime, when it matters most, it must matter most.