Playing In A Rigged Game

When people talk about our Anglo-American justice system, in contrast to civil law systems around the world anyway, the word they most often use is "adversarial."  That is, it's based on the idea of two interested parties of relatively equal strength battling it out so as to allow the fact finder (be it judge or jury) to ferret out the truth.  That's as opposed to the inquisitorial system of continental Europe, which is driven by the judge herself.

It's a nice idea, but it very rarely works out that way in the real world, particularly when it comes to criminal justice.  Truth is, in terms of resources the prosecution and it's related agencies - state or federal - have much more power than most defendants.  Moreover, prosecutors often have the unfettered discretion of charging decisions, which can turn a minor controversy into a major prosecution.  In addition to all that, there's the simple fact that the rules of the game don't apply equally to both sides.

That's something I wrote about a long time ago on a blog far, far away.  But I'm motivated to write about it again thanks to a recent decision of the Fourth Circuit that really puts things into sharp relief.

The defendant in US v. Robinson pleaded guilty to several drug offenses, including conspiracy to distribute crack cocaine.  The case is not about his guilt, but about his punishment.  Under the US Sentencing Guidelines (which, while not mandatory are nonetheless given great weight) a sentence in drug cases is largely driven by the amount of drugs involved.  How much crack did Robinson admit to selling during his guilty plea?  It doesn't matter, because the Guidelines are based on "relevant conduct" - that is, everything you've done in relation to a particular crime, whether found by a jury or not.*

Relevant conduct often ranges far beyond the facts of the offense itself because it only has to be proven by a preponderance of the evidence, rather than beyond a reasonable doubt.  In the trade we even have a term for the drug weights that come out of nowhere following a conviction to bolster the relevant conduct finding.  We call it "ghost dope," for reasons that should become obvious.

When the presentence report came back in Robinson's case it attributed more than 1.4 kilograms of crack to him based entirely on statements from a witness named Battle.  Robinson objected, arguing that Battle had given conflicting stories in the past.  In addition, Battle had specifically said Robinson sold him PCP cigarettes during a particular period of time when Robinson was in another state.  In other words, Robinson argued that Battle wasn't reliable and his statements - nothing produced under oath, mind you - should be disregarded.

At sentencing the Government did not produce Battle to testify, even though it had notice that his reliability had been questioned and the Federal Rules of Criminal Procedure provide for such things to be hashed out at sentencing.  Instead, it argued that there were three other witnesses, also not present for the hearing, who could provide information that would make Robinson's situation even worse - i.e., attribute even more ghost dope to him.  Their statements somehow did not "make their way" to the probation officer who prepared the presentence report.
As I wrote over at the Fourth Circuit blog:

The district court presented Robinson with two alternatives.  First, it would conclude the sentencing that day 'with what's here and now, and I'll make the decisions that I need to make by a preponderance of the evidence.'  Second, it would continue the hearing, 'unwind the whole thing,' and get a revised PSR that would include the Government's new witnesses.  Robinson chose to go ahead, after again asserting that Battle was not credible.

Robinson was sentenced to 140 months in prison.

On appeal, he renewed his argument that Battle wasn't credible and he should not have been attributed all the relevant conduct found by the district court.  This is a hard argument to make in the first place - it's a factual question, subject to a very deferential standard of review.  But in this case, the Fourth Circuit didn't even consider it, concluding instead that Robinson waived his right to challenge the relevant conduct determination by choosing to go forward at sentencing.

If something seems amiss about to you, you're right.  Judge Diaz, who dissented, pointed to why:

The majority declares that Robinson made a considered decision and should have to live with the consequences. But that rationale upends the equities--and, indeed, facts--of the case before us. It is not Robinson who seeks a mulligan, but the government. 

When Robinson objected to the PSR--before the hearing--the government was put on notice that its 'evidence' was suspect. Yet it did not produce Battle. Nor did it produce the probation officer who interviewed Battle. And it had never even submitted the other witnesses’ statements to the probation officer in the first place. Despite its lack of preparation, the government was presented--as the majority sees it--with a win-win scenario: either it would have a second chance to do the job right (securing an even longer sentence), or it would get a pass on the evidentiary standard.

Remember, the burden of proof is supposed to be on the prosecution.  One could argue that it's always better for the court to have more facts when it makes a decision, but that's not the way an adversarial system works.  The parties are - or, rather, should be - stuck with what they present to the court.  There shouldn't be do overs in order to achieve the "right" result.

I wonder sometimes if the fact that our criminal justice system is basically a game - one with high stakes, no doubt - doesn't hurt defendants who are caught up in and and truly guilty as charged.  It's easy in such circumstances to focus in on the game itself, the players, and how they're not following the rules, rather than your own culpability.  If we care at all about rehabilitation, that's probably a bad thing.

I suppose I'm guilty of that too, when it comes right down to it.  Like the song says, "it's just a game, and all I can do is play."  The least the powers that be can do is make sure the rules apply to all the players equally.

* In fact, even if a jury acquits you of a particular transaction, a court can still hold it against you at sentencing.  That's a topic for another day.