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Au Revoir, Voir Dire and Other Costlyand 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 aPh.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 approachto issues in the jurisprudential arena is naturally and very strongly affectedby the social sciencesfor the better, I would say.

To saythat the judicial system is in crisis is an understatement. What isheartening is the recognition by this symposium that perhaps, if we putour collective backgrounds and perspectives together, we might at leastserve 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 thejudicial system does not deserve its name since justice hardly existsthis 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 Iam going to make, but an overview of the flagrant deprivations of justice tomany in our society is necessary.

My remarks and law review article focus on what I believe is agenerally accepted fact that while the judicial system and judicial processare neutral on their face, they are biased in their administration andoutcomes. The morality and ethics of practices that disproportionatelyinflict egregious harms on the poorest and least educated of society arelong overdue in being addressed by women and men of conscience in both

* 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.

I


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the legal and public policy arenas.

The judicial system has become a system of the wealthy, by thewealthy, and for the wealthy. Furthermore, as is also the case in the

political and social arenas, those best-equipped and powerful enough toaddress issues of inequality are themselves benefiting from the unjustpractices. The old saying if it aint broke, dont fix it applies in thereverse to the U.S. judicial system. It is broken and long overdue for a fix.

In determining any kind of reform addressing socioeconomicinequality, 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 notbeing met. This is especially true when peoples lives and fates are affectedby 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 richerand the poor get poorer is bad enough for every day living. However, itshould be unacceptable when potentially innocent lives are ruined,especially in proceedings where individuals do not have the financialmeans by which to defend themselves on the criminal side, or haveappropriate representation on the civil side, even with our system ofcontingency fees.

This Article proposes to explore potential reform of several areas oflaw, both civil and criminal, that are in serious need of review andimmediate need for: (1) serious reform of the plea-bargaining panacea for

judicial efficiency accompanied with truly adequate and more equitablelegal representation; (2) reform of the jury selection process, proposingcurtailing or even eliminating voir dire and the excessive use of juryconsultants, moving towards the British system of randomly selectingjurors; and (3) dramatic change in the use of expert witnesses, with anemphasis 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, 36AKRON 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 expertwitnesses.

I. Plea-BargainingTheres another old saying: If you cant do the time, dont do the

crime. I would like to coin another version that reads, If you didnt dothe crime, dont do the time. It is axiomatic that every virtue suffers fromthe defects of its vices. In the case of plea-bargaining, there are few virtuesbut many vices.3

The 1963 Gideon v. Wainwright4 decision requiring adequate legalassistance in all criminal proceedings was justifiably applauded.5 It shouldbe recalled that Gideon was a reconsideration and reversal of the 1942 caseof Betts v. Brady.6 The Gideon Court cited extensive precedent from whichthe Betts decision deviated.7 Gideon was an extraordinary step in thecriminal judicial process and some of the Courts 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 haledinto court, who is too poor to hire a lawyer, cannot be assured afair trial unless counsel is provided for him. . . . From the very

beginning, our state and national constitutions and laws havelaid great emphasis on procedural and substantive safeguardsdesigned to assure fair trials before impartial tribunals in whichevery defendant stands equal before the law. This noble idealcannot be realized if the poor man charged with crime has to facehis 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 andthat 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

Bargainings Triumph, 109 YALE L.J. 857, 859-61 (2000).4 372 U.S. 335 (1963).5 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 338-40.9 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 confidencein Washingtons judges and court system suffer when the public perceivesthat individuals charged with crimes are treated unfairly.10 Another major

unanticipated consequence of Gideon is the virtually across-the-board useof plea-bargaining to avoid what would be an impossible workload forpublic defenders.11

While complete elimination of the use of plea-bargaining is not likelyor practical, modifying the use of the plea rests on building a respectable,adequately financed public defense system. One observer noted that insome poorly funded systems in the field, a single public defender handles1,000 cases a year.12 This is certainly not consistent with the 2002American Bar Associations Ten Principles of a Public Defense DeliverySystem, which include recommendations that [d]efense counsel isprovided sufficient time and a confidential space within which to meetwith the client and [d]efense counsels workload is controlled to permit

the rendering of quality representation.13

While the U.S. Supreme Court in Santobello v. New York14 noted thejustifications for and values of plea-bargaining, it made the clearadmonition that all of these considerations presuppose fairness insecuring [an] agreement between an accused and a prosecutor.15 It is nowclear, for example, that the accused pleading guilty must be counseled,absent a waiver.16 Moreover, Rule 11 of the Federal Rules of CriminalProcedure, governing pleas in federal courts, now makes clear that thesentencing judge must develop on the record the factual basis for the pleaby having the accused describe the conduct that gave rise to the charge.17The plea must, of course, be voluntary and knowing and if it was inducedby promises, the essence of those promises must in some way be madeknown.18 But 1971 was a long time ago, and the plea-bargaining process

10 Id.11 See Richard Klein,Judicial Misconduct in Criminal Cases: Its 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 CQRESEARCHER 337, 337, 339 (2008).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.14 404 U.S. 257 (1971).

15 Id. at 261.16 See Moore v. Michigan, 355 U.S. 155, 159-60, 165 (1957).17 FED.R.CRIM.P.11.18 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 additionalrays of hope on the plea-bargaining process (which had run amuck) as it

addressed one of the potential travesties of the plea bargain: inadequate orincompetent legal advice.20 Justice Anthony M. Kennedy noted that plea-bargaining is not some adjunct to the criminal justice system; it is thecriminal justice system.21 Two 5-4 cases tightened the process.22 At issue inthe first case,Missouri v. Frye,23 was what possible recourse a defendant hasif his attorney does not adequately inform him of the details of a pleabargain, which the defendant would have opted to take if fully informed.24

At issue in the second case, Lafler v. Cooper,25 was the misinformationgiven to a defendant by his attorney regarding the potential outcome of atrial; the misinformation resulted in the defendant not taking a pleabargain and then being convicted for a much lengthier sentence.26 In bothcases the majority ruled that the plea deal had to be offered anew.27 Justice

Anthony M. Kennedy candidly observed the reality that criminal justicetoday is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of stateconvictions are the result of guilty pleas.28 Justice Kennedy also notedthat: In todays criminal justice system, therefore, the negotiation of a pleabargain, rather than the unfolding of a trial, is almost always the criticalpoint for a defendant. . . . [L]onger sentences exist on the books largely forbargaining purposes.29 One of the problems facing the judicial systemboth the criminal and civil sidesis backlog and the need to achievegreater efficiency;30 but at what expense? Justice Kennedys candor is to beadmired and will hopefully advance significant inquiries into a practicethat, while contributing to judicial efficiency, may have consequences

19 See Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012).20 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-have-

right-to-good-lawyers.html?pagewanted=all&_r=0.21 Frye, 132 S. Ct. at 1407.22 See Liptak, supra note 20.23 Frye, 132 S. Ct. at 1399.24 Id. at 1404.25 132 S. Ct. 1376 (2012).26 Id. at 1384.

27 Liptak, supra note 20.

28 Lafler, 132 S. Ct. at 1388.29 Frye, 132 S. Ct. at 1407.

30 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 largerissues surrounding the most prominent procedure for criminal conflict

resolution. Plea-bargaining is likely to continue to disproportionatelyharm defendants who are either entirely indigent or have significantlyfewer financial resources that would allow for employment of excellentdefense counsel.31

Putting plea-bargaining into perspective requires revisiting ProfessorLawrence Wrightsmans astute delineation of the choices faced within oursystem of justice. Professor Wrightsman wrote:

The conflict between the rights of individuals and the rights ofsociety is related to a distinction between two models of thecriminal justice system. This distinction is between the dueprocess model and the crime control model. The due processmodel 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 themaxim that it is better that ten guilty persons shall go free thanthat one innocent person should suffer. . . . [T]he crime controlmodel . . . emphasizes the efficient detection of suspects and theeffective prosecution of defendants, to help insure that criminalactivity is being contained or reduced.32

The crime control model is now dominant in the U.S., especially post-9/11.33Many argue that plea-bargaining reduces the expense of a lengthytrial.34 This contention is adamantly disputed by others, as discussedbelow.

Among the other dilemmas discussed by Lawrence Wrightsman isdiscovering the truth versus resolving conflicts.35 Plea-bargaining usually

falls on the side of resolving conflicts, so much that even some innocentpersons plea-bargain after being convinced that the evidence against themis 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 assaultupon 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).32 EDITH GREENE &KIRK HEILBRUN,WRIGHTSMANS 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 fairnessfor the accused as well as for society; they also apply to the interests of thevictims and their families. Much has been written and said about this

dominant practice in the U.S. criminal justice system38

but little has beendone about it. Proponents of plea-bargaining would argue that we musthave judicial efficiency,39 without it the courts would be backlogged.These same proponents might ask: why spend many months in bringing acase to trial when the outcome can be achieved in an agreement betweenthe prosecutor and the defense attorney? Besides, the argument continues,the defendant is probably guilty anyway.40 These arguments beg thequestion.

The reality, though, is that plea-bargaining also saves judges fromhaving their rulings reviewed at the appellate level and helps prosecutorsbuild an impressive record of convictions. For the latter, it certainly cancontribute to moving up the judicial or political ladder. Whether obtaining

a conviction through a jury trial or plea bargain, the numbers add up to animpressive record of convictions. Overworked public defenders are alsospared the impossible task of satisfying the American Bar Associations TenPrinciples ofA Public Defense Delivery System.41 These ten principles requirethat:

There is parity between defense counsel and the prosecution withrespect to resources and defense counsel is included as an equalpartner 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 prosecutionand public defense.42

Scott Phillips article in the 2009Journal of Criminal Law and Criminology

provides an excellent summary of research into the hierarchical correlationbetween the type of defense and the outcome in death penalty cases.43 Mostimportant 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 &

SOCY REV. 327, 328-29 (1979); Ronald Wright & Marc Miller, Comment, Honesty and Opacity in

Charge Bargains, 55 STAN.L.REV. 1409, 1410-11 (2003).39 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 potentialproblems cited with court-appointed attorneys are (1) flat-feecompensation, (2) the potential for insufficient support services, (3) a

potential conflict of interest for the defense attorney, (4) a potential conflictof interest for the judge, and (5) questionable appointment practices.45Phillips also notes that:

The relationship between legal counsel and acquittals istroubling. It does not seem plausible to conclude that defendantswho hired counsel were actually twenty times more likely to beinnocent. Instead, the results suggest that defendants with hiredcounsel are being erroneously acquitted, or defendants withappointed counsel and mixed counsel are being wronglyconvicted, or both. The specter of wrongful conviction is real:from 1973 to the present, 130 defendants who were convicted andsentenced to death in the United States have been released due toinnocence. . . . The defendants ability to hire counsel is not arelevant legal fact, but nonetheless has a substantial influence on

case outcomes. . . . Retribution is supposed to be proportionate toharm, not proportionate to financial resources.46

Phillips 2009 findings, however, were modified by James M. Andersonand Paul Heaton in a 2012 analysis entitled How Much Difference Does theLawyer Make? The Effect of Defense Counsel on Murder Case Outcomes.47Anderson and Heaton point out that public defenders are more likely tolead their clients to plea-bargain than are court-appointed attorneys.48These observations strengthen the call for a much improved and moreadequately financed public defense system, where not only moredefendants are represented by non appointed counsel, but the publicdefender does not have an unreasonable workload, receives respectablecompensation, and has access to adequate financial support to mount a fair

defense.49 There is a vast difference between simply having a publicdefense system and having a serious public defense system. Such a systemwould hopefully diminish the inclination to move the defendant to plea-bargain.

Those who believe that justice is served while conserving the courtstime should spend a critical ninety minutes watching the Frontline

44 See id. at 720, 727-30.45 Id. at 728.46 Id. at 750, 752.

47 SeeJames 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).48 See id.49 See Armstrong, supra note 9, at A1.


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documentary: ThePlea.50

The Plea is an excoriating indictment of a practice that has become soembedded in the judicial process that few question it. Brown and Bunnell

noted,In judicial and scholarly writing . . . the particular characteristicsof 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 aspectsof federal criminal law. Much of the academic writing on plea

bargaining has focused on the general phenomenon of pleabargaining, lumping together local, state, and federal practicesfrom many jurisdictions. Other writers have abstracted the plea

bargaining process and analyzed it as a matter of economictheory.51

Plea-bargaining is an assault on justice and due process, and itsdisparate impact on the poor has largely been ignored. As with so many

other wrongs in society, the media focus (through this Frontlinedocumentary) on plea-bargaining developed an understanding of theprocess in a way that few Americans could have otherwise understood.Moreover, the documentary itself resulted in the release of two innocentpeople who accepted plea bargains because they were scared, uneducated,and coerced.52

This was an important result. Equally important is the scathingindictment of plea-bargaining and those actors in the judicial system whoseem 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 pleabargain.54 According to the defendants 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 See The Plea, supra note 50.54 The Plea: Gampero, supra note 52.


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Francis Egitto, Supreme Court of N.Y., Kings County, told the Gamperofamily,

[I]f we go to trial with this, he will give my son the maximum of

25 to life. He doesnt want to know if hes innocent. We hadstarted to pick the jury already. I think there were two jurorspicked, if Im not mistaken. Then they came up with a plea deal.Naturally, we said, Thats crazy. We didnt want a deal.55

But Judge Egitto persisted, I will give your son 25 to life, so you bettertake the plea. Or if you dont take the plea, hes getting it.56 Charles, Jr.took the plea and spent more than eight years in prisonmore than JudgeEgitto thought he would get.57 When Charles, Jr. changed his mind, JudgeEgitto insisted that Charles delineate in detail all of the aspects of thealleged crime, something Charles could not do because he was innocent.So, according to the Gamperos and Frontline, the judge scripted Charlesdescription of his crime.58 By the time Charles, Jr. came up for parole,

however, the system had changed dramatically and parole was declined.Judge Egittos comment about this was simply, As was sung by thatfamous star, Que sera sera.59

And then there was Erma Faye Stewart, the uneducated African-American mother of four, who did not understand what she pled to afterher arrest for allegedly dealing cocaine.60 She just wanted to get home toher kids. Erma Faye told Frontline, Even though I wasnt guilty, I waswilling to plead guilty because I had to go home to my kids. My son wassick. And I asked him, Listen, now, you knowyou know, I can pleadfor five-year probation. You know, justjust let me go home to mykids.61 Although she asked, her court-appointed lawyer did not explainthings 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? Hegoesyou know, he had told me that I was looking at a 10-year prisonterm. I had told him, like, For what? I aint did nothing.62 Erma Fayecontinued:

He was, like, pushing me to take the probation. He wasnt on my

55 Id.56 Id.57 Id.58 See id.59 The Plea: Erma Faye Stewart and Regina Kelly, FRONTLINE,

http://www.pbs.org/wgbh/pages/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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side at all. He wasnt trying to hear me. He wasnt trying toexplain nothing to me. And I even had told him, you know, Myunderstanding, you know, is not that good, so, you know, youre

just going to have to really break it down to me, for me to

understand.63

When interviewed by Frontline for their production, the lawyer, BrunoShimek, did not even recall Erma Faye or have any record of havingrepresented her.64 However, Frontline noted his name was right there onher plea agreement. It was not explained to Erma Faye that she was losingall the rights and benefits that she needed to feed and house her kids andherself. In addition, when Erma Faye appeared before the judge, herprobation was set at ten years, not five, contrary to her expectation. Duringthis time, Erma Faye had to pay a fine and probation costs. Erma Faye toldFrontline:

They pressure me to pay this money, which they know I dontreally 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 knowyou know, Im having a hard time. You know, I have to buy myson medicine. I have to have his medicine for his asthma. Theydidnt really care about that. All they wanted, you know, was themoney.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 withother families. Although the other defendants arrested with Erma Faye sawtheir cases dismissed because of an unreliable informant, Erma Faye hadno recourse but to continue with the plea she had entered into underduress.66

Albert Alschuler, Professor of Law at the University of Chicago, who

appeared in the Frontline documentary, discussed the ramifications ofpleading guilty, including barring truth and justice.67 The defendant, heargues, never gets to tell it all. The guilty plea puts a lid on the box,regardless of whats inside the box.68 But the system works well for thecourt, the prosecutor, and even the defendants typically court-appointedattorney.

Defense attorney Stephen Bright, who serves as the Director of theSouthern Center for Human Rights, spoke with Frontline.69 Attorney Bright

63 The Plea: Stewart, supra note 59.64 Id.65 Id.

66 Id.67 The Plea, supra note 50.68 Id.69 Id.


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pointed out that plea-bargaining often adds to the revenues of themunicipality, insofar as the defendant typically has to pay fines andprobation 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 justreturns them to prison.72 Bright observed that when the courts are inpursuit of profit, thats in conflict with being in the pursuit of justice.73Another Frontline commentary, offered by Bruce Green, Professor of Law atFordham University, points out that once a plea has been entered thedefendant is in jeopardy of being disqualified for many public assistanceprograms that helped them keep their heads above water.74

Even without all of these ripple effects of plea-bargaining, the centralquestion remains whether the life of a potentially innocent individual isworth trading for judicial efficiency. Who here would want to be in theposition of being a defendant if society answers that question in theaffirmative? Indeed, given that 97% of federal convictions are the result of

plea bargains, society has answered the question in the affirmative.75

Whyhave we become so complacent in only paying lip service to a fundamentalunderpinning of the U. S. judicial system: that one is innocent until provenguilty? Plea-bargaining is not equivalent to proving guilt. It is equivalent,in many cases, to appeasing societys guilt by placing the accused in theposition of actually taking a burden off society.

On the other side, of course, is the possibility that a defendant whoaccepts a plea bargain for a reduced sentence or probation may indeed beguilty.76 Is society served by this injustice? What about the notion of letthe punishment meet the crime? How does society accept the grief felt bythose who have had their lives ruined when a loved one has been thevictim of first-degree murder, only to find that the perpetrator, pleadingguilty to second-degree murder, gets a dramatically reduced sentence? Willjudicial efficiency compensate the victims loved ones for their loss?

Another potential approach from which to view plea-bargaining isthrough contract law. After all, isnt a plea bargain a contract? But what

70 Id.71 Id.72 Id.73 The Plea, supra note 50.74 Id.75 Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (citing Dept 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)).76 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? Certainlythere is the offer. Oh, yes, there is the acceptance and consideration. But isthere bargaining power between the parties? Is there a meeting of the

minds? Do those who accept the bargain completely understand theramifications of their agreement? Certainly, Erma Faye Stewart didntknow what was in store for her.77 And is there capacity when one party tothe agreement is uneducated, poor, and desperate to get home to familyand kids?78 Is the agreement the product of duress?79 Is a plea bargain inmanyperhaps mostcases a contract of adhesion?80 Williams v. Walker-Thomas Furniture Co.81 is a staple of contract law for first-year law schoolstudents. 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 presentat the time a contract is made, the contract should not beenforced. Unconscionability has generally been recognized toinclude an absence of meaningful choice on the part of one of theparties together with contract terms which are unreasonablyfavorable to the other party. . . . In many cases themeaningfulness of the choice is negated by a gross inequality ofbargaining power. The manner in which the contract was entered isalso relevant to this consideration. Did each party to the contract,considering his obvious education or lack of it, have a reasonableopportunity to understand the terms of the contract, or were theimportant terms hidden in a maze of fine print and minimized bydeceptive sales practices? Ordinarily, one who signs anagreement without full knowledge of its terms might be held toassume the risk that he has entered a one-sided bargain.82

II. Au Revoir, Voir DireThere is the increasing insignificance of another fundamentalunderpinning 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 ofthe People, very poignantly discussed this point.84 Judge Dwyer observed,

77 The Plea: Stewart, supra note 59.78 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 TRIALJURYS ORIGINS,TRIUMPHS,

TROUBLES, AND FUTURE IN AMERICAN DEMOCRACY 164 (St. Martins Press ed., 2002).84 Id.


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Of all the flaws in our current system, jury empanelment is themost embarrassing. . . . Why should it take days, weeks, or evenmonths to pick a jury? It shouldntbut it often does, leaving thepublic frustrated and the jury demoralized before the first

witness takes the stand. The chief cause is uncontrolled juryquestioning by lawyersvoir 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. Thenation is ready for change. The present system is being judged inadequateby the bench, the bar, the press, and the public.86 Amar and Sullivan offersix reforms, two of which are incorporated in this piece. They suggest thatwe [s]horten the in-courtroom voir dire and [a]bolish peremptorychallenges.87 Amar and Sullivan cite the English system, which offersmuch to be admired. In England, voir dire occurs before the jury panelenters the courtroom, eliminating only those who have a conflict ofinterest or who may unduly influence other jury members.88 Why?

Because, as has been aptly observed, [t]here is conflict between theinherent purpose of voir dire, which is to find impartial jurors from a poolrepresentative of the community, and the true yet unstated purpose ofevery attorney, which is to find jurors predisposed to their position.89

I remember taking a summer course on English Law at OxfordUniversity several years ago. Lawyers all, we had the opportunity to meetwith the Chief Justice of the Oxford courts. He was quite candid in hisremarks, and one that I most appreciated was his point that you will see ajury seated within five minutes. Why? Because the next twelve jurors areautomatically seated. Unless they have any relationship with any of theparties to the trial, they are the jury of the defendants 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 OldBailey. . . . I saw how the trial . . . moved so quickly . . . [and] how quicklyand 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,36FUTURIST 6,6 (2002).86 Eugene R. Sullivan & Akhil R. Amar, Jury Reform in AmericaA Return to the Old

Country, 33 AM.CRIM.L.REV.1141, 1141 (1996).87 Id. at 1144-45.88 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).90 Id.91 Sullivan & Amar, supra note 86, at 1145.


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participated in this Great Debate, noting, [j]ury selection should not bean expensive and elaborate game dominated by jury consultants andlawyers. Juries should be picked randomly, and jurors should be excluded

only for . . . bias. The jury in the end should represent the people, not theparties or the lawyers.92 The British jurist, Judge Brian Capstick, wiselyobserved that with jury consultants and the voir dire process, the U.S. hasan a la carte jury; one which you chose, not one that was chosen byrandom selection.93 Judge Capstick also referred to jury consultants asphantom juries . . . [who invade the] privacy of the jurors who[m] arequestioned and questioned at length, then . . . struck out.94 With theseobservations, Judge Capstick urged U.S. jurists to adopt the Englishsystem.95 All of this was in 1996, yet we persist with nothing more thananother exercise in intellectual diatribe.

The Sixth Amendment to the U.S. Constitution promises the accused atrial 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 shouldmeet the promise.97 But practice has deviated from principle, and two keyfactors leading to socioeconomic disparities in the trial process are jury-selection consultants and expert witnesses. Judge William Dwyer had thisto say about jury consultants:

The unreliable hunches of lawyers are now aided, orcompounded, by a lucrative business known as jury consultancy. . . . Among other services, the consultants help lawyers select

jurors for their background, body language, and presumedsubconscious activity. Even if these prophecies were accurateahighly dubious assumptionthey would still serve no goodpurpose; they are not meant to, and dont, help empanel a fairand well-qualified jury.98

Judge Dwyer suggests that perhaps peremptory challenges should be

92 Id. at 1147.93 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), revd, 399 U.S. 78 (1970)

(holding that the Sixth Amendments 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).98 DWYER,supra note 83, at 166.


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entirely eliminated or, at the least, limited to three per side and that for aparty to have as many as twenty peremptories, as some states permit infelony 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 deeppockets an advantage, there is also the expense of time to the courtsystem.101 If voir direFrench for lets see what they are going to say102lasts weeks, these are weeks during which the courtroom might be able toprocess other cases. Voir dire is not serving its intended purpose. Sincecases are won and lost on voir dire and the de facto purpose is virtual handselection of a jury with the aid of a jury consultant, it is time todramatically limit voir dire and the role of jury consultants. 103

If the U.S. judicial systems practice of selecting a jury pool follows theadmonition that it must have racial and gender diversity, the totality of

that pool should already contain a defendants peers.104

So why not adoptthe policy of seating the next twelve? Jury selection consultants certainlywont 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 generousincomes for jury consultants. . . . [E]xperienced consultants with Ph.D.s[sic] may earn over $500,000 yearly.105 Meanwhile, the profession islargely unregulated, with no particular path that leads to the position.106But a professional organization existsThe American Society of TrialConsultantsand there are countless firms whose sole purpose is to help

99

Id. at 167-68.100 Stephanie L. Yarbrough, The Jury ConsultantFriend or Foe of Justice, 54 SMU L. REV.

1885, 1886-88 (2001).101 Id. at 1892, 1896.102 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.103 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).106 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).


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select a jury who will produce the desired verdict.107 Among these firmsindeed, the biggest of these firmsis DecisionQuest, whose homepageboasts that the firm is a proud Meetings Sponsor of the American Bar

Associations Section of Litigation, as well as a proud Sponsor of theAmerican Bar Associations Tort & Trial Insurance Practice Section.108 Red,white, and blue symbols are prominently on their website.

Maureen E. Lanes Suffolk University Law Review article provides aliterary description of the jury consultant:

The jury consultants from both sides took their positions in thecramped seats between the railing and the counsel tables. They

began the uncomfortable task of staring into the inquiring facesof 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 thoroughlyanalyze a person through the telltale revelations of bodylanguage. They watched and waited anxiously for arms to fold

across the chest, for fingers to pick nervously at teeth, for headsto cock suspiciously to one side, for a hundred other gestures thatsupposedly would lay a person bare and expose the most privateof prejudices.

They scribbled notes and silently probed the faces. Juror numberfifty-six, Nicholas Easter, received more than his share ofconcerned looks. He sat in the middle of the fifth row, dressed instarched khakis and a button-down, a nice-looking young man.He glanced around occasionally, but his attention was directed ata paperback hed brought for the day. No one else had thought to

bring a book.

More chairs were filled near the railing. The defense had nofewer than six jury experts examining facial twitches andhemorrhoidal clutches. The plaintiff was using only four.

For the most part, the prospective jurors didnt enjoy beingappraised in such a manner, and for fifteen awkward minutesthey returned the glaring with scowls of their own.109

If you havent yet picked up on the writing style or the subtle humor,the name Nicholas Easter should have told you that Lane is quoting fromJohn Grishams 1996 work, The Runaway Jury.110 If you have read that work,you can come to your own conclusions regarding the pitfalls of using

107 Yarbrough, supra note 100, at 1888, 1897.108 DECISIONQUEST, http://www.decisionquest.com/Public/Home/index.cfm (last visited

Apr. 4, 2013).109 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 RUNAWAYJURY 27 (1996)).110 Id. at 463 n.1.


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expert jury consultants. Lanes concluding remark that notes the oftenineffectiveness of jury consulting is right on target. More important is herfinal note that Overzealous claims by jury consultants undermine the

publics confidence in a jury verdict and the jury system as a whole.111

Butthe jury consultant remains confident, perhaps even cocky.

Tricia McDermott, reporting for CBS News in 2007, provides us with agood picture of the jury-consulting industry. McDermott noted,

These days, its hard to find a big case without experts in humanbehavior involved. Jury consulting came into its own during theO.J. Simpson trial, when a consultant named Jo-Ellan Dimitriuspicked the jury that found him not guilty. . . . Dimitrius isinvolved in everything from picking the jury, to coachingwitnesses, to fine-tuning arguments. I almost act as a 13th

juror, she says. I hear the case for the first time. . . . I wannaknow what the bad is, so that we can figure out a way todesensitize or neutralize the negative components. With a Ph.D.in criminology, Dimitrius has never spent a day in law school.Rather, shes hired for her intuition.112

McDermott also draws on observations of another jury consultant,Howard Varinsky, who worked as a prosecution jury consultant for thePeterson case and Martha Stewarts prosecution. McDermott quotesVarinsky as describing himself as a human BS meter, claiming he canusually size someone up in 10 minutes or less. . . . [he]ll look at theirappearance first. . . . [He]ll look at what they were wearing. [He]ll look atthe quality of their clothes, their attention to detail.113 Varinsky also asksprospective jurors who their favorite person is. Referring to the trial ofMartha Stewart, Varinsky said, We had people who said Cher. We hadpeople that said Martin Luther King, Hillary Clinton, Ronald Reagan.114

McDermott asks, What does it say about you if your favorite person isCher? Varinsky:

To me? . . . It says youre not very bright. In a case where youhave a lot of information that one has to process and theinformation goes against your side, I think you would wantsomebody who says Cher. Because to me that says someone whois not that intelligent and they may vote emphatically.115

111 Id. at 480.112 Tricia McDermott, The Jury Consultants, CBSNEWS.COM (Dec. 5, 2007, 3:22 PM),

http://www.cbsnews.com/8301-18559_162-620794.html.113 Id. (internal quotation marks omitted).114 Id.115 Id. (internal quotation marks omitted).


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III. Expert Witnesses: Hired Guns for the Deep PocketsThe justice system is caught on the horns of a dilemma. On the one

horn, increasingly complicated cases often require areas of expertise ortestimony beyond the capability of the average layperson. As U.S. SupremeCourt Associate Justice Stephen Breyer observed in his 1998 address to theAmerican Association for the Advancement of Science (AAAS), The needarises [for expert witnesses] because as society becomes more dependentfor its well-being upon scientifically complex technology, we find that thistechnology increasingly underlies legal issues of importance to all of us.116This recognition of the need to integrate science and the judiciaryprompted AAAS to form a project entitled CASE (Court AppointedScientific Experts).117 And of course it is not in the interests of would-beexpert witnesses or those who train them. The expert witness industryis rampant. Regarding this development, Judge Dwyer noted, Of all ourAmerican 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 tothe irresistible call of the witness box, and the importance of competentand reliable expert witnesses cannot be overestimated in these increasinglylitigious times.119

While it can be acknowledged that increasingly difficult cases mayindeed require expert testimony, the second horn of the dilemma is thatthis has resulted in the irresistible call of the witness box.120 The literatureis replete with the matter-of-fact call to potential experts to hone theirskills. For example, an article by Robert S. Griswold appeared in the 1996Journal of Property Management notes that property managers looking foran additional source of income may want to consider offering their

knowledge and expertise in court as expert witnesses. This work paysaround $150 to $250 an hour.121 There are numerous publications to aid infinding and compensating expert witnesses. One of the mostcomprehensive 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).117 Id.118 DWYER, supra note 83, at 174.119 Janette Gulleford, Preparing Medical Experts for the Courtroom, 309 BRIT.MED.J. 752, 752-

63 (1994), available at http://www.accessmylibrary.com/article-1G1-15798005/preparing-

medical-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 issuspect how such experts have time to engage in the profession that

provided them with the expertise to begin with. Moreover, one shouldquestion the cost of this service industry and its resulting socioeconomicdisparities. Can those without deep pockets afford the services of expertwitnesses to persuade a jury? While the stakes are higher in a criminal case,civil plaintiffs who have suffered serious harms may also be disadvantageddue to the cost of expert witnesses. Plaintiffs attorneys are less willing totake on the cost of expert witnesses when subject to a mere one-thirdcontingency fee. How else can a plaintiff compete with the deep pocketsof the corporate sector? How does the extensive and expensive role ofexpert witnesses contribute to the achievement of justice? A very strongargument can be made for court-appointed witnesses so that costs arelowered and the battle of the experts is avoided. Judge William Dwyer

suggested that whilewe should not extinguish the parties right to call expertwitnesses, who often do valuable work. . . . [W]e must make

better and wiser use of the courts ability to appoint an expert ofits own. . . . [T]he dismay over partisan experts is greatlyreduced, and confidence in trials enhanced, when judges makecareful use of their power to bring disinterested expertise into thepicture.124

Professor Anthony Champagne presents interesting findings on theuse of court-appointed expert witnesses in family law cases. These findingsmight be useful to generate an expansion to other areas of law. The authorsnote, [i]n contrast with the legal systems of many other countries, the useof privately-retained experts is the dominant method for presenting expert

testimony in the U.S., but the use of privately-retained rather than court-appointed experts has been the subject of intense criticism.125 Thecriticisms include much that has already been discussed here: principally,potential bias and expense, and the resulting battle of the experts.126The

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 EXAMR, 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?,84JUDICATURE 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 offamily law in Texas, finding approval of the process by both judges andexpert 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 PatentSystem Reform, returns us to Justice Breyers observation regarding theincreasing need for experts.128 While Professor Rais article addressespatent law, some general observations can be extrapolated from his work.While arguing that only judges with training in the science or technologyinvolved in a particular case have the epistemic competence to adjudicatedisputes 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 judgeswho not only are sophisticated in the law but also have expertise

in all of the various areas of science and technology covered bythe patent system. Even if we could, setting up a judicial processthat is merely a higher cost version of the administrative processis 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 ofjudges who had some exposure to basic scientific researchmethodology. These judges could then be given a budgetsufficient to encourage liberal use of court-appointed expertwitnesses, special masters, and technical advisors who had skillin the particular science or technology relevant to the patent case.To be sure, liberal use of such third-party expertise would tend tomove aspects of patent litigation away from an adversarialmodel. It is by no means clear, however, that adversarialprocedures that rely on a battle of the experts represent the bestmechanism for educating lay persons about the relevantscience.131

An excellent example of the costly and confusing battle of theexperts was the trial of Louise Woodward, the English nanny accused ofmurdering the eight-month-old boy under her care.132 As an editorial inNew Scientist observed,

127 See id. at 180-82.128 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 whichdominated Louise Woodwards trial . . . in Massachusetts seemedto leave so much room for reasonable doubt about her guilt thatan acquittal looked like the only sensible verdict. But as the

whole world now knows, she was found guilty of murderingMatthew Eappen. The media can be forgiven for playing everyangle from Woodwards obsession with theatre to hercomparative plainness and British reserve. But something deeperwent demonstrably wrong in Boston. To reach their verdict the

jurors had to reject a mass of expert medical testimony which castserious doubt on the prosecutions case that Woodward causedthe dead babys injuries by shaking him violently and throwinghim against a flat surface. Right now we can only speculate onwhy this happened.133

How can medical professionals perceive the same evidence in suchvastly different ways? Certainly, presiding Judge Hiller Zobelsmodification of the jury verdict served as a checking mechanism.134 But can

we always count on such judicial discretion? Despite the vociferousobjections to court-appointed expert witnesses, it is time that the judiciaryseriously consider utilizing Rule 706.135 It is time to recognize that there arevested interests that want to perpetuate the system as it is.136 Let mesuggest some more food for thought: President Dwight D. Eisenhowersinsightful warning about the dangers of the military-industrial complex, aphrase he coined and used in his farewell address in January 1961.137 Letme extrapolate from President Eisenhowers phrase as I suggest that thereexists today a judicial-professional complex, and it requires as much asPresident Eisenhower anticipated. That such a judicial-industrial complexexists is undeniable: the interests of the judiciary coincide with andreinforce 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 theway about The Iron Triangle, composed of Congress, the bureaucracy,

133 Death of an Expert Witness, NEW SCIENTIST, Nov. 8, 1997, at 3.134 See Woodward, 694 N.E.2d at 1287-88 (discussing the trial judges modification of the jury

verdict from murder to manslaughter after finding the defendants 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. Eisenhowers 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).


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and vested interest groups.138 At the risk of mixing metaphors, I suggestthat there is a Judicial Iron Triangle, with the courts (and judges) at theapex of the pyramid; counsel (both prosecution and defense) as the second

point; and jury consultant-expert witnesses as the third point. Each of thethree points feed off and reinforce each other at the cost of the judicialsystems 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 thedifference between victory or defeat. But what happens to the client whocannot afford these expensive services? On the criminal side, this is just onemore factor leading to plea-bargaining. On the civil side, can the less-wealthy plaintiff take on the deep pockets, even if the plaintiffs attorneyis working on contingency? Just how much money is an attorney working

on contingency willing or able to put into a plaintiffs case?The 1985 U.S. Supreme Court holding in Ake v. Oklahoma141 that acriminal defendant is entitled to the provision of psychiatric experttestimony may suggest greater developments in providing expert supportin criminal cases.142 Writing the majority opinion, Justice ThurgoodMarshall noted:

This Court has long recognized that when a State brings itsjudicial power to bear on an indigent defendant in a criminalproceeding, it must take steps to assure that the defendant has afair opportunity to present his defense. This elementary principle,grounded in significant part on the Fourteenth Amendments dueprocess 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 participatemeaningfully in a judicial proceeding in which his liberty is atstake. In recognition of this right, this Court held almost 30 yearsago that once a State offers to criminal defendants theopportunity to appeal their cases, it must provide a trialtranscript to an indigent defendant if the transcript is necessaryto a decision on the merits of the appeal. Since then, this Court

138 William Kristol, Term Limitations: Breaking Up the Iron Triangle,16HARV.J.L.&PUB.

POLY 95,96(1993).139 SeeJames W. Douglas & Helen King Stockstill, Starving the Death Penalty: Do Financial

Constraints Limit Its Use?, 29JUST.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 Australias 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 afee before filing a notice of appeal of his conviction, Burns v. Ohio,360 U.S. 252 (1959), that an indigent defendant is entitled to theassistance 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 beeffective. 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 aquasi-criminal proceeding and held that, in a paternity action,the State cannot deny the putative father blood grouping tests, ifhe cannot otherwise afford them.143

Critical to the future extension of rights to expert witnesses is JusticeMarshalls statement:

Meaningful access to justice has been the consistent theme ofthese cases. We recognized long ago that mere access to the

courthouse doors does not by itself assure a proper functioning ofthe adversary process, and that a criminal trial is fundamentallyunfair if the State proceeds against an indigent defendant withoutmaking certain that he has access to the raw materials integral tothe building of an effective defense. Thus, while the Court hasnot held that a State must purchase for the indigent defendant allthe assistance that his wealthier counterpart might buy, see Rossv. Moffitt, 417 U.S. 600 (1974), it has often reaffirmed thatfundamental fairness entitles indigent defendants to anadequate opportunity to present their claims fairly within theadversary system, id. at 612. To implement this principle, wehave focused on identifying the basic tools of an adequatedefense or appeal, Britt v. North Carolina, 404 U.S. 226, 227(1971), and we have required that such tools be provided to thosedefendants who cannot afford to pay for them.144

Justice Marshall added:

The private interest in the accuracy of a criminal proceeding thatplaces an individuals life or liberty at risk is almost uniquelycompelling. Indeed, the host of safeguards fashioned by thisCourt over the years to diminish the risk of erroneous convictionstands as a testament to that concern. The interest of theindividual in the outcome of the States effort to overcome thepresumption of innocence is obvious and weighs heavily in ouranalysis.145

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

143 Id. at 76.144 Id. at 77.145 Id. at 78.


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[T]heAke rationale may logically extend to experts whose subjectarea is normally outside the range of a laymens [sic] generalknowledge. Ballistics experts, chemists and an unlimited numberof other experts would appear to be mandated by the Ake

decision; however, this constitutional mandate is tempered sincethe indigent defendant must establish that the expert issue will bea significant factor at trial.146

In Ake, the importance of psychiatric assistance is evident because asuccessful insanity defense could absolve the indigent defendant ofcomplete criminal responsibility.147 Clearly, guilt or innocence will not bethe significant factor measuring standard, but it should at least serve as astrong mitigating factor. One should be mindful that due process onlyrequires 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 ispreferably, suffering from some serious, although correctable, problems.There is no denial that the system more often than not results in serioussocioeconomic injustices. Therefore, it is a stretch, in all good conscience, tocontinue to call it a system of justice. Justice requires equity. Equity can beachieved if those within the judicial system work with public policymakers to correct the flaws that result in a system that dramatically worksin favor of the wealthy and makes those least able to afford it all the worseoff.

146 Michael James Todd, Criminal ProcedureDue 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.

natoli: au revoir, voir dire and other costly and socioeconomically unjust judicial practices

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