Natoli: Au Revoir, Voir Dire and Other Costly and Socioeconomically Unjust Judicial Practices

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Au Revoir, Voir Dire and Other Costly and Socioeconomically Unjust Judicial Practices

MARIE D. NATOLI*

INTRODUCTION
am very pleased to have been asked to participate in the symposium and to submit my corresponding article for publication. Since I hold a Ph.D. as well as a J.D., and spent twenty-five years teaching in the social sciences before attending law school beginning in 1994, my approach to issues in the jurisprudential arena is naturally and very strongly affected by the social sciences—for the better, I would say. To say that the judicial system is in crisis is an understatement. What is heartening is the recognition by this symposium that perhaps, if we put our collective backgrounds and perspectives together, we might at least serve as catalysts for change. This change is not going to come about today, but this symposium is a welcome start. So how is the system in crisis? The premise of this article is that the judicial system does not deserve its name since justice hardly exists—this is the key crisis. Indeed, the system actually assaults the very word “justice.” I realize that many in this audience may be offended by the observations I am going to make, but an overview of the flagrant deprivations of justice to many in our society is necessary. My remarks and law review article focus on what I believe is a generally accepted fact that while the judicial system and judicial process are neutral on their face, they are biased in their administration and outcomes. The morality and ethics of practices that disproportionately inflict egregious harms on the poorest and least educated of society are long overdue in being addressed by women and men of conscience in both

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* Professor of Political Science, Emmanuel College. B.A., Hunter College; M.B.A., Suffolk University; J.D., Suffolk University Law School; Ph.D., M.A., Tufts University.

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the legal and public policy arenas. The judicial system has become a system of the wealthy, by the wealthy, and for the wealthy. Furthermore, as is also the case in the political and social arenas, those best-equipped and powerful enough to address issues of inequality are themselves benefiting from the unjust practices. The old saying “if it ain’t broke, don’t fix it” applies in the reverse to the U.S. judicial system. It is broken and long overdue for a fix. In determining any kind of reform addressing socioeconomic inequality, the first question to be asked is, “What is the purpose of ‘it’?” Reform is not only desirable, but also mandatory, when the purpose is not being met. This is especially true when people’s lives and fates are affected by system malfunction. The United States has always prided itself on a just system of laws. Justice is supposed to be blind, and the scales of justice must be equal. Anyone who has any knowledge of the U.S. judicial system, even the layperson, knows that justice is neither blind nor equal.1 Rather, it is crippled and egregiously distorted in favor of those who are higher up on the socioeconomic ladder.2 The fact that the rich get richer and the poor get poorer is bad enough for every day living. However, it should be unacceptable when potentially innocent lives are ruined, especially in proceedings where individuals do not have the financial means by which to defend themselves on the criminal side, or have appropriate representation on the civil side, even with our system of contingency fees. This Article proposes to explore potential reform of several areas of law, both civil and criminal, that are in serious need of review and immediate need for: (1) serious reform of the plea-bargaining panacea for judicial efficiency accompanied with truly adequate and more equitable legal representation; (2) reform of the jury selection process, proposing curtailing or even eliminating voir dire and the excessive use of jury consultants, moving towards the British system of randomly selecting jurors; and (3) dramatic change in the use of expert witnesses, with an emphasis upon greater equity on both sides of a case and potentially
1 See Jeffrey J. Wallace, Ideology vs. Reality: The Myth of Equal Opportunity in a Color Blind Society, 36 AKRON L. REV. 693, 695 (2003) (discussing judicial decisions failing to achieve racial colorblindness); see also Caprice L. Roberts, The Fox Guarding the Henhouse?: Recusal and the Procedural Void in the Court of Last Resort, 57 RUTGERS L. REV. 107, 130-31 (2004) (arguing that judicial recusal evidences implicit awareness that justice can be unfair). 2 See Thomas F. Liotti, Does Gideon Still Make a Difference?, 2 N.Y. CITY L. REV. 105, 130-31 (1998) (discussing the disadvantages to indigent defendants in New York); see also Leroy D. Clark, All Defendants, Rich and Poor, Should Get Appointed Counsel in Criminal Cases: The Route to True Equal Justice, 81 MARQ. L. REV. 47, 52-53 (1997) (citing the O.J. Simpson trial as an example of the judicial favor enjoyed by privileged defendants).

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looking towards a major increase in the use of court-appointed expert witnesses. I. Plea-Bargaining There’s another old saying: “If you can’t do the time, don’t do the crime.” I would like to coin another version that reads, “If you didn’t do the crime, don’t do the time.” It is axiomatic that every virtue suffers from the defects of its vices. In the case of plea-bargaining, there are few virtues but many vices.3 The 1963 Gideon v. Wainwright4 decision requiring adequate legal assistance in all criminal proceedings was justifiably applauded.5 It should be recalled that Gideon was a reconsideration and reversal of the 1942 case of Betts v. Brady.6 The Gideon Court cited extensive precedent from which the Betts decision deviated.7 Gideon was an extraordinary step in the criminal judicial process and some of the Court’s dicta is worth repeating here, insofar as it speaks to the themes of this article:
[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.8

The Gideon Court did not foresee the aftermath. We know, of course, that one problem lies in the ambiguity of the phrase “right to counsel” and that all too often defendants do not receive defense attorneys of the highest caliber, leading to dire consequences for indigent defendants.9 The

3 The history of plea-bargaining, believe it or not, is an interesting one. It all began in Massachusetts. For a very thorough history of plea-bargaining, see George Fisher, Plea Bargaining’s Triumph, 109 YALE L.J. 857, 859-61 (2000).

372 U.S. 335 (1963). See, e.g., Ellen S. Podgor, Gideon at 40: Facing the Crisis, Fulfilling the Promise, 41 AM. CRIM. L. REV. 131, 133 (2004). 6 316 U.S. 455, 473 (1942), overruled by Gideon, 372 U.S. at 339. 7 Gideon, 372 U.S. at 342-44. 8 Id. at 344. The Gideon decision criticized the Betts holding that the Sixth Amendment was not fundamental to a fair trial; therefore, the Fourteenth Amendment would not impose the federal requirement for counsel onto the state courts. Id. at 338-40.
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See Ken Armstrong, State Bar-Association Panel Urges Public-Defense Reforms, SEATTLE TIMES (May 11, 2004), available at http://community.seattletimes.nwsource.com/archive/?date=20040511&slug=defense11m.

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Washington Bar Association observed that “[p]ublic trust and confidence in Washington’s judges and court system suffer when the public perceives that individuals charged with crimes are treated unfairly.”10 Another major unanticipated consequence of Gideon is the virtually across-the-board use of plea-bargaining to avoid what would be an impossible workload for public defenders.11 While complete elimination of the use of plea-bargaining is not likely or practical, modifying the use of “the plea” rests on building a respectable, adequately financed public defense system. One observer noted that “in some poorly funded systems in the field, a single public defender handles 1,000 cases a year.”12 This is certainly not consistent with the 2002 American Bar Association’s “Ten Principles of a Public Defense Delivery System,” which include recommendations that “[d]efense counsel is provided sufficient time and a confidential space within which to meet with the client” and “[d]efense counsel’s workload is controlled to permit the rendering of quality representation.”13 While the U.S. Supreme Court in Santobello v. New York14 noted the justifications for and values of plea-bargaining, it made the clear admonition that “all of these considerations presuppose fairness in securing [an] agreement between an accused and a prosecutor.”15 It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver.16 Moreover, Rule 11 of the Federal Rules of Criminal Procedure, governing pleas in federal courts, now makes clear that the sentencing judge must develop on the record the factual basis for the plea by having the accused describe the conduct that gave rise to the charge.17 “The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.”18 But 1971 was a long time ago, and the plea-bargaining process

Id. See Richard Klein, Judicial Misconduct in Criminal Cases: It’s Not Just the Counsel Who May Be Ineffective and Unprofessional, 4 OHIO ST. J. CRIM. L. 195, 205 (2006). 12 Barbara Mantel, Public Defenders: Do Indigent Defendants Get Adequate Legal Representation?, 18 CQ RESEARCHER 337, 337, 339 (2008).
11 13 ABA STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, TEN PRINCIPLES OF A PUB. DEF. DELIVERY SYS. 1 (2002) [hereinafter TEN PRINCIPLES], available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf. 14 15 16 17 18

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404 U.S. 257 (1971). Id. at 261. See Moore v. Michigan, 355 U.S. 155, 159-60, 165 (1957). FED. R. CRIM. P. 11. Santobello, 404 U.S. at 261-62.

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has not run the course the Santobello Court believed necessary.19 In March of this year, the U.S. Supreme Court shed some additional rays of hope on the plea-bargaining process (which had run amuck) as it addressed one of the potential travesties of the plea bargain: inadequate or incompetent legal advice.20 Justice Anthony M. Kennedy noted that pleabargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”21 Two 5-4 cases tightened the process.22 At issue in the first case, Missouri v. Frye,23 was what possible recourse a defendant has if his attorney does not adequately inform him of the details of a plea bargain, which the defendant would have opted to take if fully informed.24 At issue in the second case, Lafler v. Cooper,25 was the misinformation given to a defendant by his attorney regarding the potential outcome of a trial; the misinformation resulted in the defendant not taking a plea bargain and then being convicted for a much lengthier sentence.26 In both cases the majority ruled that the plea deal had to be offered anew.27 Justice Anthony M. Kennedy candidly observed “the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninetyseven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”28 Justice Kennedy also noted that: “In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant. . . . [L]onger sentences exist on the books largely for bargaining purposes.”29 One of the problems facing the judicial system— both the criminal and civil sides—is backlog and the need to achieve greater efficiency;30 but at what expense? Justice Kennedy’s candor is to be admired and will hopefully advance significant inquiries into a practice that, while contributing to judicial “efficiency,” may have consequences

See Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). See Adam Liptak, Justices’ Ruling Expands Rights of Accused in Plea Bargains, N.Y. TIMES (Mar. 21, 2012), http://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-haveright-to-good-lawyers.html?pagewanted=all&_r=0.
20 21 22 23 24 25 26 27 28 29 30

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Frye, 132 S. Ct. at 1407. See Liptak, supra note 20. Frye, 132 S. Ct. at 1399. Id. at 1404. 132 S. Ct. 1376 (2012). Id. at 1384. Liptak, supra note 20. Lafler, 132 S. Ct. at 1388. Frye, 132 S. Ct. at 1407.

James P. George, Jurisdictional Implications in the Reduced Funding of Lower Federal Courts, 25 REV. LITIG. 1, 18-21 (2006).

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that dramatically offset the value of efficiency. Lafler and Frye, however, did nothing to resolve some of the larger issues surrounding the most prominent procedure for “criminal conflict resolution.” Plea-bargaining is likely to continue to disproportionately harm defendants who are either entirely indigent or have significantly fewer financial resources that would allow for employment of excellent defense counsel.31 Putting plea-bargaining into perspective requires revisiting Professor Lawrence Wrightsman’s astute delineation of the choices faced within our system of justice. Professor Wrightsman wrote:
The conflict between the rights of individuals and the rights of society is related to a distinction between two models of the criminal justice system. This distinction is between the due process model and the crime control model. The due process model places primary value on the protection of citizen, including criminal suspects, from possible abuses by the police and the law enforcement system generally. It subscribes to the maxim that it is better that ten guilty persons shall go free than that one innocent person should suffer. . . . [T]he crime control model . . . emphasizes the efficient detection of suspects and the effective prosecution of defendants, to help insure that criminal activity is being contained or reduced.32

The crime control model is now dominant in the U.S., especially post9/11.33 Many argue that plea-bargaining reduces the expense of a lengthy trial.34 This contention is adamantly disputed by others, as discussed below. Among the other dilemmas discussed by Lawrence Wrightsman is discovering the truth versus resolving conflicts.35 Plea-bargaining usually falls on the side of resolving conflicts, so much that “even some innocent persons plea-bargain after being convinced that the evidence against them is overwhelming.”36 As a result, I have come to condemn plea-bargaining, not to praise it. Plea-bargaining is an injustice, a travesty, and an assault upon society. It is abused and abusive.37

31 Talia Fisher, The Boundaries of Plea Bargaining: Negotiating the Standard of Proof, 97 J. CRIM. L. & CRIMINOLOGY 943, 972 & n.89 (2007).

EDITH GREENE & KIRK HEILBRUN, WRIGHTSMAN’S PSYCHOLOGY AND THE LEGAL SYSTEM 7 (7th ed. 2007) (internal quotation marks omitted). 33 Id. 34 Id. 35 Id. 36 Id. at 12-13. 37 See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992).

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What is effective about these attacks is that they apply to both fairness for the accused as well as for society; they also apply to the interests of the victims and their families. Much has been written and said about this dominant practice in the U.S. criminal justice system38—but little has been done about it. Proponents of plea-bargaining would argue that “we must have judicial efficiency,”39 without it the courts would be backlogged. These same proponents might ask: why spend many months in bringing a case to trial when the outcome can be achieved in an agreement between the prosecutor and the defense attorney? Besides, the argument continues, the defendant is probably guilty anyway.40 These arguments beg the question. The reality, though, is that plea-bargaining also saves judges from having their rulings reviewed at the appellate level and helps prosecutors build an “impressive” record of convictions. For the latter, it certainly can contribute to moving up the judicial or political ladder. Whether obtaining a conviction through a jury trial or plea bargain, the numbers add up to an “impressive” record of convictions. Overworked public defenders are also spared the impossible task of satisfying the American Bar Association’s Ten Principles of A Public Defense Delivery System.41 These ten principles require that:
There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system. There should be parity of workload, salaries and other resources (such as benefits, technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts) between prosecution and public defense.42

Scott Phillips’ article in the 2009 Journal of Criminal Law and Criminology provides an excellent summary of research into the hierarchical correlation between the type of defense and the outcome in death penalty cases.43 Most important to our discussion is that defendants fair far better with public

38 See, e.g., Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2467-69 (2004); Sam W. Callan, An Experience in Justice Without Plea Negotiation, 13 LAW & SOC’Y REV. 327, 328-29 (1979); Ronald Wright & Marc Miller, Comment, Honesty and Opacity in Charge Bargains, 55 STAN. L. REV. 1409, 1410-11 (2003).

James P. Dowden, United States v. Singleton: A Warning Shot Heard ’Round the Circuits?, 40 B.C. L. REV. 897, 908-09 (1999). 40 See Oren Gazal-Ayal, Partial Ban on Plea Bargains, 27 CARDOZO L. REV. 2295, 2328 (2006). 41 See TEN PRINCIPLES, supra note 13. 42 Id. 43 See generally Scott Phillips, Legal Disparities in the Capital of Capital Punishment, 99 J. CRIM. L. & CRIMINOLOGY 717, 718-20, 744, 747-48, 750-52 (2009).

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defenders than with court-appointed attorneys.44 Among the potential problems cited with court-appointed attorneys are “(1) flat-fee compensation, (2) the potential for insufficient support services, (3) a potential conflict of interest for the defense attorney, (4) a potential conflict of interest for the judge, and (5) questionable appointment practices.”45 Phillips also notes that:
The relationship between legal counsel and acquittals is troubling. It does not seem plausible to conclude that defendants who hired counsel were actually twenty times more likely to be innocent. Instead, the results suggest that defendants with hired counsel are being erroneously acquitted, or defendants with appointed counsel and mixed counsel are being wrongly convicted, or both. The specter of wrongful conviction is real: from 1973 to the present, 130 defendants who were convicted and sentenced to death in the United States have been released due to innocence. . . . The defendant’s ability to hire counsel is not a relevant legal fact, but nonetheless has a substantial influence on case outcomes. . . . Retribution is supposed to be proportionate to harm, not proportionate to financial resources.46

Phillips’ 2009 findings, however, were modified by James M. Anderson and Paul Heaton in a 2012 analysis entitled How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes.47 Anderson and Heaton point out that public defenders are more likely to lead their clients to plea-bargain than are court-appointed attorneys.48 These observations strengthen the call for a much improved and more adequately financed public defense system, where not only more defendants are represented by non appointed counsel, but the public defender does not have an unreasonable workload, receives respectable compensation, and has access to adequate financial support to mount a fair defense.49 There is a vast difference between simply having a public defense system and having a serious public defense system. Such a system would hopefully diminish the inclination to move the defendant to pleabargain. Those who believe that justice is served while conserving the court’s time should spend a critical ninety minutes watching the Frontline

See id. at 720, 727-30. Id. at 728. 46 Id. at 750, 752. 47 See James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 YALE L.J. 154, 204-05 (2012).
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44

See id. See Armstrong, supra note 9, at A1.

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documentary: The Plea.50 The Plea is an excoriating indictment of a practice that has become so embedded in the judicial process that few question it. Brown and Bunnell noted,
In judicial and scholarly writing . . . the particular characteristics of federal plea bargaining remain relatively under examined, certainly compared to the enormous amount of scholarly and judicial attention that has been devoted to so many other aspects of federal criminal law. Much of the academic writing on plea bargaining has focused on the general phenomenon of plea bargaining, lumping together local, state, and federal practices from many jurisdictions. Other writers have abstracted the plea bargaining process and analyzed it as a matter of economic theory.51

Plea-bargaining is an assault on justice and due process, and its disparate impact on the poor has largely been ignored. As with so many other wrongs in society, the media focus (through this Frontline documentary) on plea-bargaining developed an understanding of the process in a way that few Americans could have otherwise understood. Moreover, the documentary itself resulted in the release of two innocent people who accepted plea bargains because they were scared, uneducated, and coerced.52 This was an important result. Equally important is the scathing indictment of plea-bargaining and those actors in the judicial system who seem to have no problem in scaring and coercing the relatively powerless.53 One defendant discussed in the Frontline piece was Charles Gampero, Jr. Accused of murder, Gampero initially refused to agree to a plea bargain.54 According to the defendant’s father, Charles Gampero, Sr., Judge

50 Frontline: The Plea (PBS television broadcast June 17, 2004), available at http://www.pbs.org/wgbh/pages/frontline/shows/plea/view/ (last visited Apr. 4, 2013) [hereinafter The Plea] (describing cases where plea-bargaining was misused resulting in miscarriages of justice). 51 Mary Patrice Brown & Stevan E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia, 43 AM. CRIM. L. REV. 1063, 1064 (2006). 52 See The Plea, supra note 50; see also The Plea: Charles Gampero, Jr., FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/shows/plea/four/gampero.html (June 17, 2004) [hereinafter The Plea: Gampero] (providing information on Charles Gampero, Jr.’s parole release after spending years in prison for pleading out to a crime he claimed he did not commit); The Plea: Patsy Kelly Jarrett, FRONTLINE, http://www.pbs.org/wgbh/pages/frontline/shows/plea/four/jarrett.html (June 17, 2004) (discussing the parole release of Patsy Kelly Jarrett who spent many years in prison after pleading out to a crime she claimed she did not commit). 53 54

See The Plea, supra note 50. The Plea: Gampero, supra note 52.

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Francis Egitto, Supreme Court of N.Y., Kings County, told the Gampero family,
[I]f we go to trial with this, he will give my son the maximum of 25 to life. He doesn’t want to know if he’s innocent. We had started to pick the jury already. I think there were two jurors picked, if I’m not mistaken. Then they came up with a plea deal. Naturally, we said, “That’s crazy.” We didn’t want a deal.55

But Judge Egitto persisted, “I will give your son 25 to life, so you better take the plea. Or if you don’t take the plea, he’s getting it.”56 Charles, Jr. took the plea and spent more than eight years in prison—more than Judge Egitto thought he would get.57 When Charles, Jr. changed his mind, Judge Egitto insisted that Charles delineate in detail all of the aspects of the alleged crime, something Charles could not do because he was innocent. So, according to the Gamperos and Frontline, the judge scripted Charles’ “description” of his crime.58 By the time Charles, Jr. came up for parole, however, the system had changed dramatically and parole was declined. Judge Egitto’s comment about this was simply, “As was sung by that famous star, ‘Que sera sera.’”59 And then there was Erma Faye Stewart, the uneducated AfricanAmerican mother of four, who did not understand what she pled to after her arrest for allegedly dealing cocaine.60 She just wanted to get home to her kids. Erma Faye told Frontline, “Even though I wasn’t guilty, I was willing to plead guilty because I had to go home to my kids. My son was sick. And I asked him, ‘Listen, now, you know——you know, I can plead for five-year probation. You know, just—just let me go home to my kids.’”61 Although she asked, her court-appointed lawyer did not explain things to her. In speaking with Frontline, Erma Faye said, “I had asked my lawyer, you know, ‘What they going to,’ you know, ‘do about that?’ He goes—you know, he had told me that I was looking at a 10-year prison term. I had told him, like, ‘For what? I ain’t did nothing.’”62 Erma Faye continued:
He was, like, pushing me to take the probation. He wasn’t on my

Id. Id. 57 Id. 58 See id. 59 The Plea: Erma Faye Stewart http://www.pbs.org/wgbh/pages/frontline/
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55

and

Regina

Kelly,

FRONTLINE,

shows/plea/four/stewart.html (last visited Apr. 4, 2013) [hereinafter The Plea: Stewart]. 60 See id. 61 Id. 62 The Plea, supra note 50; see also The Plea: Stewart, supra note 59.

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Au Revoir, Voir Dire side at all. He wasn’t trying to hear me. He wasn’t trying to explain nothing to me. And I even had told him, you know, “My understanding, you know, is not that good, so, you know, you’re just going to have to really break it down to me, for me to understand.”63

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When interviewed by Frontline for their production, the lawyer, Bruno Shimek, did not even recall Erma Faye or have any record of having “represented her.”64 However, Frontline noted his name was right there on her plea agreement. It was not explained to Erma Faye that she was losing all the rights and benefits that she needed to feed and house her kids and herself. In addition, when Erma Faye appeared before the judge, her probation was set at ten years, not five, contrary to her expectation. During this time, Erma Faye had to pay a fine and probation costs. Erma Faye told Frontline:
They pressure me to pay this money, which they know I don’t really have. They see it as, like, as long as I have a job, you know, I can pay this. You know, I even explained to them, you know— you know, I’m having a hard time. You know, I have to buy my son medicine. I have to have his medicine for his asthma. They didn’t really care about that. All they wanted, you know, was the money.65

Erma Faye Stewart slept on the steps of her former housing project, awaking every morning to go to her $5.25 an hour job. Her kids lived with other families. Although the other defendants arrested with Erma Faye saw their cases dismissed because of an unreliable informant, Erma Faye had no recourse but to continue with the plea she had entered into under duress.66 Albert Alschuler, Professor of Law at the University of Chicago, who appeared in the Frontline documentary, discussed the ramifications of pleading guilty, including barring truth and justice.67 The defendant, he argues, never gets to tell it all. “The guilty plea puts a lid on the box, regardless of what’s inside the box.”68 But the system works well for the court, the prosecutor, and even the defendant’s typically court-appointed attorney. Defense attorney Stephen Bright, who serves as the Director of the Southern Center for Human Rights, spoke with Frontline.69 Attorney Bright
63 64 65 66 67 68 69

The Plea: Stewart, supra note 59. Id. Id. Id. The Plea, supra note 50. Id. Id.

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pointed out that plea-bargaining often adds to the revenues of the municipality, insofar as the defendant typically has to pay fines and probation costs.70 Failing to meet these costs results in breaking probation.71 This puts many who accept a plea agreement on a carousel ride that just returns them to prison.72 Bright observed that “when the courts are in pursuit of profit, that’s in conflict with being in the pursuit of justice.”73 Another Frontline commentary, offered by Bruce Green, Professor of Law at Fordham University, points out that once a plea has been entered the defendant is in jeopardy of being disqualified for many public assistance programs that helped them keep their heads above water.74 Even without all of these ripple effects of plea-bargaining, the central question remains whether the life of a potentially innocent individual is worth trading for judicial efficiency. Who here would want to be in the position of being a defendant if society answers that question in the affirmative? Indeed, given that 97% of federal convictions are the result of plea bargains, society has answered the question in the affirmative.75 Why have we become so complacent in only paying lip service to a fundamental underpinning of the U. S. judicial system: that one is innocent until proven guilty? Plea-bargaining is not equivalent to proving guilt. It is equivalent, in many cases, to appeasing society’s guilt by placing the accused in the position of actually taking a burden off society. On the other side, of course, is the possibility that a defendant who accepts a plea bargain for a reduced sentence or probation may indeed be guilty.76 Is society served by this injustice? What about the notion of “let the punishment meet the crime”? How does society accept the grief felt by those who have had their lives ruined when a loved one has been the victim of first-degree murder, only to find that the perpetrator, pleading guilty to second-degree murder, gets a dramatically reduced sentence? Will “judicial efficiency” compensate the victim’s loved ones for their loss? Another potential approach from which to view plea-bargaining is through contract law. After all, isn’t a plea bargain a contract? But what

Id. Id. 72 Id. 73 The Plea, supra note 50. 74 Id. 75 Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (citing Dep’t of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, ALBANY.EDU, http://www.albany.edu/sourcebook/pdf/t5222009.pdf (last visited Apr. 4, 2013)).
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See Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 80 (2005) (noting that one of the common criticisms of plea-bargaining is that guilty persons may not be receiving the punishment some feel they deserve).

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elements of a plea bargain conform to creating a valid contract? Certainly there is the offer. Oh, yes, there is the acceptance and consideration. But is there bargaining power between the parties? Is there a meeting of the minds? Do those who “accept” the bargain completely understand the ramifications of their agreement? Certainly, Erma Faye Stewart didn’t know what was in store for her.77 And is there capacity when one party to the “agreement” is uneducated, poor, and desperate to get home to family and kids?78 Is the agreement the product of duress?79 Is a plea bargain in many—perhaps most—cases a contract of adhesion?80 Williams v. WalkerThomas Furniture Co.81 is a staple of contract law for first-year law school students. Walker-Thomas Furniture Co. involved a commercial transaction. Can it apply here vis-a-vis plea-bargaining? As Judge Skelly-Wright wrote:
[W]e hold that where the element of unconscionability is present at the time a contract is made, the contract should not be enforced. Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. . . . In many cases the meaningfulness of the choice is negated by a gross inequality of bargaining power. The manner in which the contract was entered is also relevant to this consideration. Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain.82

II. Au Revoir, Voir Dire There is the increasing insignificance of another fundamental underpinning of the U.S. judicial system: the jury system.83 The late U.S. District Judge William L. Dwyer in his extraordinary work, In the Hands of the People, very poignantly discussed this point.84 Judge Dwyer observed,

The Plea: Stewart, supra note 59. Chapter Nine: Contracts and Consumer Law, AMERICANBAR.ORG, http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/family/cha pter_9.authcheckdam.pdf (last visited Apr. 4, 2013). 79 Id. 80 Id. 81 350 F.2d 445, 448-50 (D.C. Cir. 1965). 82 Id. at 449 (emphasis added). 83 WILLIAM L. DWYER, IN THE HANDS OF THE PEOPLE: THE TRIAL JURY’S ORIGINS, TRIUMPHS, TROUBLES, AND FUTURE IN AMERICAN DEMOCRACY 164 (St. Martin’s Press ed., 2002).
78 84

77

Id.

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Of all the flaws in our current system, jury empanelment is the most embarrassing. . . . Why should it take days, weeks, or even months to pick a jury? It shouldn’t—but it often does, leaving the public frustrated and the jury demoralized before the first witness takes the stand. The chief cause is uncontrolled jury questioning by lawyers—voir dire . . . .85

Amar and Sullivan, writing for the American Criminal Law Review, argue that “[t]he time to reform the American jury system is now. The nation is ready for change. The present system is being judged inadequate by the bench, the bar, the press, and the public.”86 Amar and Sullivan offer six reforms, two of which are incorporated in this piece. They suggest that we “[s]horten the in-courtroom voir dire” and “[a]bolish peremptory challenges.”87 Amar and Sullivan cite the English system, which offers much to be admired. In England, voir dire “occurs before the jury panel enters the courtroom,” eliminating only those who have a conflict of interest or who may unduly influence other jury members.88 Why? Because, as has been aptly observed, “[t]here is conflict between the inherent purpose of voir dire, which is to find impartial jurors from a pool representative of the community, and the true yet unstated purpose of every attorney, which is to find jurors predisposed to their position.”89 I remember taking a summer course on “English Law” at Oxford University several years ago. Lawyers all, we had the opportunity to meet with the Chief Justice of the Oxford courts. He was quite candid in his remarks, and one that I most appreciated was his point that “you will see a jury seated within five minutes.” Why? Because the next twelve jurors are automatically seated. Unless they have any relationship with any of the parties to the trial, they are the jury of the defendant’s peers.90 In a symposium between British and U.S. jurists entitled “Great Debate on Jury Reform England v. United States,” Judge Eugene R. Sullivan noted , “the spark of jury reform came to me when I spent a day at the Old Bailey. . . . I saw how the trial . . . moved so quickly . . . [and] how quickly and efficiently they use the jury system in England.”91 Professor Amar

85 Id.; see also Hope Cristol, U.S. Jury System on Trial: A Judge Examines the Devaluation of Jury Trials, 36 FUTURIST 6, 6 (2002). 86 Eugene R. Sullivan & Akhil R. Amar, Jury Reform in America—A Return to the Old Country, 33 AM. CRIM. L. REV. 1141, 1141 (1996).

Id. at 1144-45. Id. at 1144. 89 Adam J. Hoskins, Note, Armchair Jury Consultants: The Legal Implications and Benefits of Online Research of Prospecive Jurors in the Facebook Era, 96 MINN. L. REV. 1100, 1113 n.117 (2012) (internal citation omitted).
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participated in this “Great Debate,” noting, “[j]ury selection should not be an expensive and elaborate game dominated by jury consultants and lawyers. Juries should be picked randomly, and jurors should be excluded only for . . . bias. The jury in the end should represent the people, not the parties or the lawyers.”92 The British jurist, Judge Brian Capstick, wisely observed that with jury consultants and the voir dire process, the U.S. has an “‘a la carte’ jury; one which you chose, not one that was chosen by random selection.”93 Judge Capstick also referred to jury consultants as “phantom juries . . . [who invade the] privacy of the jurors who[m] are questioned and questioned at length, then . . . struck out.”94 With these observations, Judge Capstick urged U.S. jurists to adopt the English system.95 All of this was in 1996, yet we persist with nothing more than another exercise in intellectual diatribe. The Sixth Amendment to the U.S. Constitution promises the accused a trial by a jury of his or her peers.96 The U.S. Supreme Court has struggled with this promise and has, at least on paper, formed standards that should meet the promise.97 But practice has deviated from principle, and two key factors leading to socioeconomic disparities in the trial process are juryselection consultants and expert witnesses. Judge William Dwyer had this to say about jury consultants:
The unreliable hunches of lawyers are now aided, or compounded, by a lucrative business known as jury consultancy . . . . Among other services, the consultants help lawyers select jurors for their background, body language, and presumed subconscious activity. Even if these prophecies were accurate—a highly dubious assumption—they would still serve no good purpose; they are not meant to, and don’t, help empanel a fair and well-qualified jury.98

Judge Dwyer suggests that perhaps peremptory challenges should be

Id. at 1147. Id. at 1163. 94 Id. at 1164. 95 Id. 96 U.S. CONST. amend. VI. 97 Compare Patton v. United States, 281 U.S. 276, 288-89 (1930), rev’d, 399 U.S. 78 (1970) (holding that the Sixth Amendment’s right to a trial by jury “means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted,” including that the jury must consist of twelve men (citing Thompson v. Utah, 170 U.S. 343, 350 (1898)), with Williams v. Florida, 399 U.S. 78, 86-90 (1970) (holding that the Sixth Amendment does not actually require the empanelment of a jury consisting of twelve people and that Florida did not violate the Sixth Amendment by refusing to impanel a jury of more than six members).
93 98

92

DWYER, supra note 83, at 166.

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entirely eliminated or, at the least, limited to three per side and that “for a party to have as many as twenty peremptories, as some states permit in felony cases, accomplishes nothing except to spread the impression that the system is being manipulated.”99 Name your price and you can get the “best and the brightest” to handpick a jury for you.100 Not only does this give those with the “deep pockets” an advantage, there is also the expense of time to the court system.101 If voir dire—French for “let’s see what they are going to say”102— lasts weeks, these are weeks during which the courtroom might be able to process other cases. Voir dire is not serving its intended purpose. Since cases are won and lost on voir dire and the de facto purpose is virtual hand selection of a jury with the aid of a jury consultant, it is time to dramatically limit voir dire and the role of jury consultants.103 If the U.S. judicial system’s practice of selecting a jury pool follows the admonition that it must have racial and gender diversity, the totality of that pool should already contain a defendant’s peers.104 So why not adopt the policy of “seating the next twelve”? Jury selection consultants certainly won’t like this reform; they would be put out of a very lucrative business. After all, the compensation for these expert services range from $60,000 to $125,000 for a mock jury trial, and “these hefty fees translate into generous incomes for jury consultants. . . . [E]xperienced consultants with Ph.D.’s [sic] may earn over $500,000 yearly.”105 Meanwhile, “the profession is largely unregulated, with no particular path that leads to the position.”106 But a professional organization exists—The American Society of Trial Consultants—and there are countless firms whose sole purpose is to help

Id. at 167-68. Stephanie L. Yarbrough, The Jury Consultant—Friend or Foe of Justice, 54 SMU L. REV. 1885, 1886-88 (2001).
100

99

Id. at 1892, 1896. Hans Zeisel & Shari S. Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491, 491 n.1 (1978). However, the accurate translation of “voir dire” is “true talk,” because the French word “voir” (meaning “see”) derives from the Latin word “versus” (meaning “truth”). Id.
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101

Franklin Strier & Donna Shestowsky, Profiling the Profilers: A Study of the Trial Consulting Profession, Its Impact on Trial Justice and What, If Anything, To Do About It, 1999 WIS. L. REV. 441, 442-43 (1999). 104 Glasser v. United States, 315 U.S. 60, 85-86 (1942). 105 Sally Kane, Jury Consultant, ABOUT.COM: LEGAL CAREERS, http://legalcareers.about.com/od/careerprofiles/p/juryconsultants.htm (last visited Feb. 12, 2013). Dana Sparks, The Average Salary of a Jury Consultant, EHOW, http://www.ehow.com/info_8596947_average-salary-jury-consultant.html (last visited Feb. 12, 2013).
106

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select a jury who will produce the desired verdict.107 Among these firms— indeed, the biggest of these firms—is DecisionQuest, whose homepage boasts that the firm is “a proud Meetings Sponsor of the American Bar Association’s Section of Litigation,” as well as “a proud Sponsor of the American Bar Association’s Tort & Trial Insurance Practice Section.”108 Red, white, and blue symbols are prominently on their website. Maureen E. Lane’s Suffolk University Law Review article provides a literary description of the jury consultant:
The jury consultants from both sides took their positions in the cramped seats between the railing and the counsel tables. They began the uncomfortable task of staring into the inquiring faces of 194 strangers. The consultants studied the jurors because, first, that was what they were being paid huge sums of money to do, and second, because they claimed to be able to thoroughly analyze a person through the telltale revelations of body language. They watched and waited anxiously for arms to fold across the chest, for fingers to pick nervously at teeth, for heads to cock suspiciously to one side, for a hundred other gestures that supposedly would lay a person bare and expose the most private of prejudices. They scribbled notes and silently probed the faces. Juror number fifty-six, Nicholas Easter, received more than his share of concerned looks. He sat in the middle of the fifth row, dressed in starched khakis and a button-down, a nice-looking young man. He glanced around occasionally, but his attention was directed at a paperback he’d brought for the day. No one else had thought to bring a book. More chairs were filled near the railing. The defense had no fewer than six jury experts examining facial twitches and hemorrhoidal clutches. The plaintiff was using only four. For the most part, the prospective jurors didn’t enjoy being appraised in such a manner, and for fifteen awkward minutes they returned the glaring with scowls of their own.109

If you haven’t yet picked up on the writing style or the subtle humor, the name “Nicholas Easter” should have told you that Lane is quoting from John Grisham’s 1996 work, The Runaway Jury.110 If you have read that work, you can come to your own conclusions regarding the pitfalls of using

Yarbrough, supra note 100, at 1888, 1897. DECISIONQUEST, http://www.decisionquest.com/Public/Home/index.cfm (last visited Apr. 4, 2013).
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107

Maureen E. Lane, Twelve Carefully Selected Not So Angry Men: Are Jury Consultants Destroying the American Legal System?, 32 SUFFOLK U. L. REV. 463, 463 (1999) (quoting JOHN GRISHAM, THE RUNAWAY JURY 27 (1996)).
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expert jury consultants. Lane’s concluding remark that notes the often ineffectiveness of jury consulting is right on target. More important is her final note that “Overzealous claims by jury consultants undermine the public’s confidence in a jury verdict and the jury system as a whole.”111 But the jury consultant remains confident, perhaps even cocky. Tricia McDermott, reporting for CBS News in 2007, provides us with a good picture of the jury-consulting industry. McDermott noted,
These days, it’s hard to find a big case without experts in human behavior involved. Jury consulting came into its own during the O.J. Simpson trial, when a consultant named Jo-Ellan Dimitrius picked the jury that found him not guilty. . . . Dimitrius is involved in everything from picking the jury, to coaching witnesses, to fine-tuning arguments. “I almost act as a 13th juror,” she says. “I hear the case for the first time. . . . I wanna know what the bad is, so that we can figure out a way to desensitize or neutralize the negative components.” With a Ph.D. in criminology, Dimitrius has never spent a day in law school. Rather, she’s hired for her “intuition.”112

McDermott also draws on observations of another jury consultant, Howard Varinsky, who worked as a prosecution jury consultant for the Peterson case and Martha Stewart’s prosecution. McDermott quotes Varinsky as describing himself as “a human BS meter,” claiming “he can usually size someone up in 10 minutes or less. . . . [he]’ll look at their appearance first. . . . [He]’ll look at what they were wearing. [He]’ll look at the quality of their clothes, their attention to detail.”113 Varinsky also asks prospective jurors who their favorite person is. Referring to the trial of Martha Stewart, Varinsky said, “We had people who said Cher. We had people that said Martin Luther King, Hillary Clinton, Ronald Reagan.”114 McDermott asks, “What does it say about you if your favorite person is Cher?” Varinsky:
To me? . . . It says you’re not very bright. In a case where you have a lot of information that one has to process and the information goes against your side, I think you would want somebody who says Cher. Because to me that says someone who is not that intelligent and they may vote emphatically.115

Id. at 480. Tricia McDermott, The Jury Consultants, CBSNEWS.COM (Dec. 5, 2007, 3:22 PM), http://www.cbsnews.com/8301-18559_162-620794.html.
112 113 114 115

111

Id. (internal quotation marks omitted). Id. Id. (internal quotation marks omitted).

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III. Expert Witnesses: Hired Guns for the “Deep Pockets” The justice system is caught on the horns of a dilemma. On the one horn, increasingly complicated cases often require areas of expertise or testimony beyond the capability of the average layperson. As U.S. Supreme Court Associate Justice Stephen Breyer observed in his 1998 address to the American Association for the Advancement of Science (AAAS), “The need arises [for expert witnesses] because as society becomes more dependent for its well-being upon scientifically complex technology, we find that this technology increasingly underlies legal issues of importance to all of us.”116 This recognition of the need to integrate science and the judiciary prompted AAAS to form a project entitled CASE (Court Appointed Scientific Experts).117 And of course it is not in the interests of would-be expert witnesses or those who “train” them. The “expert witness” industry is rampant. Regarding this development, Judge Dwyer noted, “Of all our American trial practices, none is more baffling to a European visitor than our use of partisan experts.”118 Writing for the British Medical Journal, Janette Gulleford observed that “all professions are having to respond to the irresistible call of the witness box, and the importance of competent and reliable expert witnesses cannot be overestimated in these increasingly litigious times.”119 While it can be acknowledged that increasingly difficult cases may indeed require expert testimony, the second horn of the dilemma is that this has resulted in the “irresistible call of the witness box.”120 The literature is replete with the matter-of-fact call to potential experts to hone their skills. For example, an article by Robert S. Griswold appeared in the 1996 Journal of Property Management notes that “property managers looking for an additional source of income may want to consider offering their knowledge and expertise in court as expert witnesses. This work pays around $150 to $250 an hour.”121 There are numerous publications to aid in finding and compensating expert witnesses. One of the most comprehensive is published by SEAK, Inc., entitled 2009 SEAK National

116 AAAS Project Links Judges to Scientific Experts, AAAS.ORG, http://www.aaas.org/news/newsandnotes/inside69.shtml (last visited Apr. 4, 2013).

Id. DWYER, supra note 83, at 174. 119 Janette Gulleford, Preparing Medical Experts for the Courtroom, 309 BRIT. MED. J. 752, 75263 (1994), available at http://www.accessmylibrary.com/article-1G1-15798005/preparingmedical-experts-courtroom.html. 120 See id. 121 Robert S. Griswold, Your Day in Court: Becoming an Expert Witness, 61 J. OF PROP. MGMT., May-June 1996, at 27, 27.
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Guide to Expert Witness Fees and Billing Procedures.122 Serving as an expert witness has become a profession in itself.123 It is suspect how such experts have time to engage in the profession that provided them with the expertise to begin with. Moreover, one should question the cost of this service industry and its resulting socioeconomic disparities. Can those without “deep pockets” afford the services of expert witnesses to persuade a jury? While the stakes are higher in a criminal case, civil plaintiffs who have suffered serious harms may also be disadvantaged due to the cost of expert witnesses. Plaintiff’s attorneys are less willing to take on the cost of expert witnesses when subject to a mere one-third contingency fee. How else can a plaintiff compete with the “deep pockets” of the corporate sector? How does the extensive and expensive role of expert witnesses contribute to the achievement of justice? A very strong argument can be made for court-appointed witnesses so that costs are lowered and “the battle of the experts” is avoided. Judge William Dwyer suggested that while
we should not extinguish the parties’ right to call expert witnesses, who often do valuable work. . . . [W]e must make better and wiser use of the court’s ability to appoint an expert of its own. . . . [T]he dismay over partisan experts is greatly reduced, and confidence in trials enhanced, when judges make careful use of their power to bring disinterested expertise into the picture.124

Professor Anthony Champagne presents interesting findings on the use of court-appointed expert witnesses in family law cases. These findings might be useful to generate an expansion to other areas of law. The authors note, “[i]n contrast with the legal systems of many other countries, the use of privately-retained experts is the dominant method for presenting expert testimony in the U.S., but the use of privately-retained rather than courtappointed experts has been the subject of intense criticism.”125 The criticisms include much that has already been discussed here: principally, potential bias and expense, and the resulting “battle of the experts.”126 The

122 See generally ALEX BABITSKY ET AL., NATIONAL GUIDE TO EXPERT WITNESS FEES AND BILLING PROCEDURES, at ix (SEAK, Inc., 2009) (noting the piece was authored in part by SEAK Inc. president Steven Babitsky); see also Joseph E. Bonadiman, Experience Versus Education in Forensic Engineering, FORENSIC EXAM’R, Winter 2007, at 38. 123 David G. Owen, A Decade of Daubert, 80 DENV. U. L. REV. 345, 351 (2002) (discussing the rise of professional expert witnesses in response to increasingly complex legal issues and a greater volume of litigation). 124 DWYER, supra note 83, at 174. 125 Anthony Champagne et al., Are Court-Appointed Experts the Solution to the Problems of Expert Testimony?, 84 JUDICATURE 178, 178 (2001). 126 See id. at 178-79.

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use of court-appointed experts, they argue, work well in their case study of family law in Texas, finding approval of the process by both judges and expert witnesses. There are often limited resources in family law, and court-appointed experts have been a positive response to that limitation.127 Professor Arti Rai, writing for the Columbia Law Review, in an article entitled Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, returns us to Justice Breyer’s observation regarding the increasing need for experts.128 While Professor Rai’s article addresses patent law, some general observations can be extrapolated from his work. While arguing that “only judges with training in the science or technology involved in a particular case have the ‘epistemic competence’ to adjudicate disputes in scientific or technological areas[,]”129 Rai, justifiably so, questions the feasibility of such a plan, noting:
It is unlikely that we will be able to assemble a group of judges who not only are sophisticated in the law but also have expertise in all of the various areas of science and technology covered by the patent system. Even if we could, setting up a judicial process that is merely a higher cost version of the administrative process is unlikely to produce benefits that would justify its cost.130

Rai suggests an alternative worthy of consideration. He notes,
By contrast, it would not be difficult to assemble a group of judges who had some exposure to basic scientific research methodology. These judges could then be given a budget sufficient to encourage liberal use of court-appointed expert witnesses, special masters, and technical advisors who had skill in the particular science or technology relevant to the patent case. To be sure, liberal use of such third-party expertise would tend to move aspects of patent litigation away from an adversarial model. It is by no means clear, however, that adversarial procedures that rely on a “battle of the experts” represent the best mechanism for educating lay persons about the relevant science.131

An excellent example of the costly and confusing “battle of the experts” was the trial of Louise Woodward, the English nanny accused of murdering the eight-month-old boy under her care.132 As an editorial in New Scientist observed,

See id. at 180-82. See Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, 103 COLUM. L. REV. 1035, 1098 & n.285 (2003). 129 See id. at 1098 (citing Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L.J. 1535, 1565-66 (1998) (discussing “epistemic competence”)). 130 Id. 131 Id. at 1098-99. 132 See Commonwealth v. Woodward, 694 N.E.2d 1277, 1281, 1293 (Mass. 1998).
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The sheer weight of conflicting medical evidence which dominated Louise Woodward’s trial . . . in Massachusetts seemed to leave so much room for reasonable doubt about her guilt that an acquittal looked like the only sensible verdict. But as the whole world now knows, she was found guilty of murdering Matthew Eappen. The media can be forgiven for playing every angle from Woodward’s obsession with theatre to her comparative plainness and British reserve. But something deeper went demonstrably wrong in Boston. To reach their verdict the jurors had to reject a mass of expert medical testimony which cast serious doubt on the prosecution’s case that Woodward caused the dead baby’s injuries by shaking him violently and throwing him against a flat surface. Right now we can only speculate on why this happened.133

How can medical professionals perceive the same evidence in such vastly different ways? Certainly, presiding Judge Hiller Zobel’s modification of the jury verdict served as a checking mechanism.134 But can we always count on such judicial discretion? Despite the vociferous objections to court-appointed expert witnesses, it is time that the judiciary seriously consider utilizing Rule 706.135 It is time to recognize that there are vested interests that want to perpetuate the system as it is.136 Let me suggest some more food for thought: President Dwight D. Eisenhower’s insightful warning about the dangers of the military-industrial complex, a phrase he coined and used in his farewell address in January 1961.137 Let me extrapolate from President Eisenhower’s phrase as I suggest that there exists today a judicial-professional complex, and it requires as much as President Eisenhower anticipated. That such a judicial-industrial complex exists is undeniable: the interests of the judiciary coincide with and reinforce both the interests of jury consultants and expert witness professionals who service the judiciary. I am sure, too, that everyone here has learned somewhere along the way about “The Iron Triangle,” composed of Congress, the bureaucracy,

Death of an Expert Witness, NEW SCIENTIST, Nov. 8, 1997, at 3. See Woodward, 694 N.E.2d at 1287-88 (discussing the trial judge’s modification of the jury verdict from murder to manslaughter after finding the defendant’s experts’ version more credible). 135 See FED. R. EVID. 706. 136 See, e.g., Janet C. Hoeffel, Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 STAN. L. REV. 465, 499-500 (1990) (discussing the vested interests of expert witnesses). 137 See Transcript of President Dwight D. Eisenhower’s Farewell Address, OURDOCUMENTS.GOV, http://www.ourdocuments.gov/doc.php?flash=true&doc=90&page=transcript (last visited Apr. 4, 2013) (warning of the “potential for the disastrous rise of misplaced power”).
133 134

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and vested interest groups.138 At the risk of mixing metaphors, I suggest that there is a “Judicial Iron Triangle,” with the courts (and judges) at the apex of the pyramid; counsel (both prosecution and defense) as the second point; and jury consultant-expert witnesses as the third point. Each of the three points feed off and reinforce each other at the cost of the judicial system’s integrity and equity. Both expert witnesses and jury consultants, it goes without saying, make a lot of money.139 The judge wants things expedited and, of course, needs experts in complicated cases.140 For prosecution and defense counsel, the amount of money poured into both types of consultants may mean the difference between victory or defeat. But what happens to the client who cannot afford these expensive services? On the criminal side, this is just one more factor leading to plea-bargaining. On the civil side, can the lesswealthy plaintiff take on the “deep pockets,” even if the plaintiff’s attorney is working on contingency? Just how much money is an attorney working on contingency willing or able to put into a plaintiff’s case? The 1985 U.S. Supreme Court holding in Ake v. Oklahoma141 that a criminal defendant is entitled to the provision of psychiatric expert testimony may suggest greater developments in providing expert support in criminal cases.142 Writing the majority opinion, Justice Thurgood Marshall noted:
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. In recognition of this right, this Court held almost 30 years ago that once a State offers to criminal defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant if the transcript is necessary to a decision on the merits of the appeal. Since then, this Court

138 William Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 HARV. J.L. & PUB. POL’Y 95, 96 (1993). 139 See James W. Douglas & Helen King Stockstill, Starving the Death Penalty: Do Financial Constraints Limit Its Use?, 29 JUST. SYS. J. 326, 330-31 (2008). 140 See Carol Henderson Garcia, Expert Witness Malpractice: A Solution to the Problem of the Negligent Expert Witness, 12 MISS. C. L. REV. 39, 41 (1991); Elizabeth Reifert, Getting into the Hot Tub: How the United States Could Benefit from Australia’s Concept of “Hot Tubbing” Expert Witnesses, 89 U. DET. MERCY L. REV. 103, 105 (2011). 141 470 U.S. 68 (1985). 142 See id. at 83.

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has held that an indigent defendant may not be required to pay a fee before filing a notice of appeal of his conviction, Burns v. Ohio, 360 U.S. 252 (1959), that an indigent defendant is entitled to the assistance of counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), and on his first direct appeal as of right, Douglas v. California, 372 U.S. 353 (1963), and that such assistance must be effective. See Evitts v. Lucey, 469 U.S. 387 (1985); Strickland v. Washington, 466 U.S. 668 (1984); McMann v. Richardson, 397 U.S. 759, 771 , n.14 (1970). Indeed, in Little v. Streater, 452 U.S. 1 (1981), we extended this principle of meaningful participation to a “quasi-criminal” proceeding and held that, in a paternity action, the State cannot deny the putative father blood grouping tests, if he cannot otherwise afford them.143

Critical to the future extension of rights to expert witnesses is Justice Marshall’s statement:
Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to “an adequate opportunity to present their claims fairly within the adversary system,” id. at 612. To implement this principle, we have focused on identifying the “basic tools of an adequate defense or appeal,” Britt v. North Carolina, 404 U.S. 226, 227 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them.144

Justice Marshall added:
The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State’s effort to overcome the presumption of innocence is obvious and weighs heavily in our analysis.145

Writing for the Howard Law Journal, Michael James Todd made the accurate observation:

143 144 145

Id. at 76. Id. at 77. Id. at 78.

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Au Revoir, Voir Dire [T]he Ake rationale may logically extend to experts whose subject area is normally outside the range of a laymen’s [sic] general knowledge. Ballistics experts, chemists and an unlimited number of other experts would appear to be mandated by the Ake decision; however, this constitutional mandate is tempered since the indigent defendant must establish that the expert issue will be a “significant factor” at trial.146

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In Ake, the importance of psychiatric assistance is evident because a successful insanity defense could absolve the indigent defendant of complete criminal responsibility.147 Clearly, guilt or innocence will not be the “significant factor” measuring standard, but it should at least serve as a strong mitigating factor. One should be mindful that due process only requires that an indigent has the basic tools to present a defense and, therefore, must establish that expert assistance is among these tools.148

CONCLUSION
It can be disputed whether the U.S. judicial system is in crisis, or is preferably, suffering from some serious, although correctable, problems. There is no denial that the system more often than not results in serious socioeconomic injustices. Therefore, it is a stretch, in all good conscience, to continue to call it a system of justice. Justice requires equity. Equity can be achieved if those within the judicial system work with public policy makers to correct the flaws that result in a system that dramatically works in favor of the wealthy and makes those least able to afford it all the worse off.

146 Michael James Todd, Criminal Procedure–Due Process and Indigent Defendants: Extending Fundamental Fairness to Include the Right to Expert Assistance: Ake v. Oklahoma, 29 HOW. L.J. 609, 623 (1986). 147 Ake, 470 U.S. at 72. 148 Id. at 83-84.