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Why Intel Goes Bad: We Want Bad Intel

(As a former intelligence officer, Michael C is trying to explain his larger theory on intelligence, a simple idea with complex ramifications: Intelligence is Evidence. Click here to read the previous posts.)

Another FRONTLINE episode, another failure of the justice system.

This time, instead of faulty arson investigations or coerced testimony, the fault lies with medical examiners diagnosing “shaken baby syndrome”. It sounds horrible, and dying babies always are, but were they murders?

As the FRONTLINE episode points out, and other investigative reporting as well, forensic pathology is woefully unprepared to diagnose the cause of deaths in infants. As a result, dozens of people are in prison for crimes that likely never happened. As in the case of arson victims in the 1990s or the Norfolk Four, over-zealous prosecutors demanded wrongful convictions, egged on by an over-zealous populous overseen by elected judges beholden to the same over-zealous pressure. Especially in cases of children, our country wants to hold someone responsible. Under this pressure, forensic pathologists used now controversial medical evidence to aid the prosecution.

These three FRONTLINE examples are more than statistical anomalies. Take this case in Virginia. A federal judge overturned the conviction of Justin Wolfe because the state of Virginia violated his due process, by knowingly using false testimony against the defendant.

Then in March, the Supreme Court ruled on Connick v. Thompson. While not a new case, the details are still shocking: prosecutors withheld evidence from the defense and jury that the blood taken from the scene of the crime didn’t match the defendant’s. Literally, the blood evidence proved the defendant’s innocence. The state still prosecuted the case, knowing they had the wrong person, and a man spent 14 years on death row. (In that case, the Supreme Court ruled that prosecutors could not be sued for deliberately prosecuting the wrong individual. On Violence disagrees.)

If those aren’t enough examples, check out the book Convicting the Innocent: Where Criminal Prosecutions Go Wrong, where Brandon Garrett describes, in detail, 250 wrongful convictions. In these cases, newly developed DNA evidence managed to overturn their convictions. Without that evidence, many of the men on death row would have been put to death. Garrett can’t answer the even more poignant question, “How many more wrongfully convicted men and women sit in jail without DNA to clear their names?”

I asked in last week’s post, “Why does intelligence go bad? Why do we convict people who don’t deserve it?” FRONTLINE’s continuing reportage begs another question about our justice system, “Why wouldn’t it go awry?” In each case, the prosecutors merely expressed the will of an angry, vengeful constituency. District attorneys, and now many judges, are elected by the people. The people want criminals punished. Innocent victims get caught in the crossfire.

The voting public wants prosecutors and judges who are tough on crime. Listen to retired Supreme Court Justice John Paul Stevens talking about the system's imbalanced incentives. In a speech after the Connick decision, he specifically lambasted local prosecutors who must stand for reelection: “the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused.” Respecting the Constitutional rights of a suspect is all risk no reward for a prosecutor.

In a way, prosecutors aren’t really to blame, the American public is, especially the branch of law and order Americans who want to stop crime more than they care about vague concepts like justice, freedom and equality under the law. The pressure for convictions pushes prosecutors to their constitutional limits.

With all that said, the American system of justice prevails far, far more often than it errs. The founder’s wrote the Constitution with Blackstone’s formulation in mind--better that 10 guilty men go free than one innocent man go to prison. The safeguards written into the Constitution help prevent travesties of justice, and, for the most part, the tragedies I outlined above occur when prosecutors and judges ignore these principles.

The real question for On Violence is, do we have these safeguards to prevent innocent people from dying in our quest to stop terrorists and insurgents? I’ll tackle that on Wednesday.

nine comments

I have to make one partisan-political comment. The branch of Americans I call “law and order” Americans often tends to strongly embrace the Tea Party and rigid interpretation of the constitution. Which seems to me very selective in hyper-supporting one amendment, the 2nd, but ignoring the fourth and fifth and sixth and so on. Our founders hated how the British abused the law to punish innocent Americans about as much as taxes. Many law and order Americans draping themselves in the constitution willfully ignore that, and those parts of the constitution.

Ah, yes. The Tea Party… don’t get me started…

It’s not the Tea Party alone. Anyone who uses the Constitution in politics should know what it says. This would include things like: having read the Bill of Rights, the Federalist Papers, Democracy in America or taken history classes on subjects like the Constitution or Political Science classes.

The Constitution is always interpreted; the “strict” reading tends to ignore specific parts in favor of strict readings in others.

As it relates to this topic, the mostly highly valued part of the Constitution, for me, is protecting individuals from the mob. But when the mob is the mob, it disappears.

I could write an entire thesis on the 2nd amendment. The true is that it is outdated. To clarify, as it is now, according to the second amendment, I should be able to own an A-10 warthog with a full weapons complement if I could afford it. It’s quite clear on no infringement. But that’s just not logical or ethical. There are and must be restrictions. Or else we could have C4 sold via vending machines.

Well, the big elephant in the room is the question why didn’t the last administration office holders face, at bare minimum legal scrutiny, but most logically indictment and trial for crimes leading up to invasion of Iraq and the so-called prosecution of the occupation? Or is this too just “patisan-political”?

Derek, yep that’s partisan-political. But not too much. I just try to avoid partisan issues so that people on either side can’t discredit my brother and I by saying, “oh they are just shills for the Republicans/Democrats”. The debate about violence we aren’t having is too important to let it get sidetracked.

Michael, I beg to differ but understand fully your drive not to get side tracked from the big picture. But if intelligence is evidence and in the micro prosecutors withhold evidence to get a conviction, regardless of justice, can we direct this same question on the macro, not only with the circumstances of 2001 to 2003, but the continuation of the “Long Wars” when a large body of intelligence, hence evidence, shows that the USA’s strategies in AFG in particular, and negotiation of change the SOF agreements in Iraq also, aren’t necessarily doing anyone (particularly the USA)any good? Unnecessary violence (some say that’s redundant) leads to a large failure of justice and a seachange in the concept of justice.

I’ll take this whole issue politially: the Iraq war started because of a faulty intelligence, because the American populace’s threshold for evidence for going to war was way, way, way too low.

But again, some people will now discount us for my having said that, even though I think it is a philosophically sound argument.

Derek, especially looking at the violence long term, in a sense of justice, yes we could have skewed perspectives. I just know that only so much will work when it comes to domestic politics. Also, the decision to go to war really is made by the country, it is hard to hold one leader accountable, and only one.

Good use of intel is evidence in the larger sense though.