“Everywhere you turn there’s some caveat that’s biased against the defendant,” said the Firm’s new Associate Michael Hassard. This is not news to criminal defense lawyers, we all have this moment, and Mike was learning about one of the more blatant biases: “Jencks,” the nickname for a McCarthy-era federal law that allows prosecutors to withhold witness statements until after their witness testifies, producing them to the defense only upon motion before the defense’s cross-examination of the witness. It’s hopelessly outdated too, with its horse-and-buggy vision of a trial that is quaint in the face of a 21st-century computer crime trial involving algorithmic and cryptographic expert evidence. It’s one of the more blatant procedural biases against criminal defendants; the cumulative effect of these types of blatant and hidden biases in the system is the primary reason our federal criminal justice system has turned into an unconstitutional inquisitorial plea grist mill where the burden of proof is on the defendant to prove their innocence.
“It’s the defendant’s burden to prove he’s innocent.” Those words were spoken by a federal prosecutor during a status conference for a federal criminal computer trial I represent the defendant in. In the prosecutor’s defense (can’t help it I’m a defense lawyer) he was stating this in the context of trying to get us to engage in plea negotiations that we weren’t interested in. But in our adversary system, the Constitution mandates that the Government has the burden of proving guilt beyond a reasonable doubt; here I was in federal court with a federal prosecutor saying the opposite. I ignored the comment in court, but couldn’t get it out of my head afterward. Because it’s a telling condemnation of what our federal criminal justice has become - an inquisitorial system of justice with a shadow body of law unnoticed and untaught in the law schools, where innocent people are forced to plead guilty because they can’t afford the astronomical cost of a trial that’s the result of gross inefficiencies of the judiciary combined with the bloated bureaucracy the United States Department of Justice has become.
It’s an unjust system, one that places an emphasis on the number of convictions rather than innocence, and one - because of the fact that roughly 98% of federal criminal cases end in a plea - in which prosecutors aren’t held accountable for their mistakes and bad behavior. Before I became a criminal defense lawyer it never occurred to me our justice system was this flawed and biased procedurally - the racial and class prejudice is obvious and ever-present, but I expected it to at least be procedurally fair on its face. But it’s not, and after ten years as a federal criminal defense lawyer, the first thing I tell new clients is that the faster they accept the fact that the system is unfair and irrational the quicker they’ll come to terms with it.
I can’t in good conscience remain silent about it anymore. Particularly when I look at the nonsense that’s being taught in law schools which is a fantasy when it comes to the reality of law. The case law method is bankrupt, and the sterile ahistorical positivism that passes for legal scholarship in our law schools fosters injustice because it masks what’s actually going on. So I’m speaking out.
Over the next three months I’m going to take you through the process of preparing for a federal criminal trial. I’m going to describe it to you from the defendant’s point of view. Not from the point of view of the cult of DOJ, former federal prosecutors, Hollywood, or reporters whose knowledge of the law is whatever a federal or former federal prosecutor tells them.