Ethical Quote Of The Month: Harvard Law Professor Jeannie Suk Gersen

“We chose to set up our system to be stacked in favor of the defendant in all cases.So, in areas where most of the defendants are male, and most of the accusers are female, it’s a structural bias in favor of males. Even if we were to get rid of sexism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.”

—-Jeannie Suk Gersen, Harvard Law School professor, explaining why the failure of a jury to convict Bill Cosby has little to do with sexism and everything to do with our standard of guilt in criminal cases.

The Professor could also have said, just as accurately,

‘We chose to set up our system to be stacked in favor of the defendant in all cases. So, in areas where the defendants are police officers, and most of the victims are black, it’s a structural bias in favor of cops. Even if we were to get rid of racism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.’

It’s the exact same problem. The confusion comes when the public or a portion of it is  certain that particular defendant is guilty, and thus regards the failure of the system to find him so as proof of a malfunctioning justice system. It isn’t. It is proof that the system functions as it is supposed to, was designed to do and must do.  We do not take citizens’ freedom away unless guilt can be proven beyond a reasonable doubt under the evidence rules of the law. This is what Colin Kaepernick doesn’t understand. This is what Black Lives Matters refuses to understand. This is what feminists and the Obama Education Department, which commanded that universities give the benefit of the doubt to accusers in allegations of sexual assault rather than the accused, either refuse to understand or do understand but argue against anyway to pander to the ignorant.

Americans, however, must understand this principle, and not just understand but fight for it, because it is the foundation of the Rule of Law as well as our individual rights.

Before I am done I will probably have posted this scene from “A Man For All Seasons” more than a hundred times. Maybe I should post it every day. Those who casually advocate forging short-cuts and detours through our laws and rights as the remedy for what they perceive as intolerable wrongs need to see it, read the words, memorize them, and maybe be quizzed on the scene’s lesson as a condition predicate to being respected in any policy debate:

 

28 Comments

Filed under Arts & Entertainment, Ethics Alarms Award Nominee, Gender and Sex, Law & Law Enforcement, Popular Culture, Quotes, Race, Rights, U.S. Society

28 responses to “Ethical Quote Of The Month: Harvard Law Professor Jeannie Suk Gersen

  1. dragin_dragon

    You know, one of the explanations I have noted for the disregard of the “system stacking” is the conflation of the terms “not guilty” and “innocent”. A jury never returns a verdict of “innocent of all charges”, in part because that is not an option. Juries return a verdict of “not guilty”. This may, in fact, mean that the jury felt that the defendant was innocent. More than likely, however, it simply means that the prosecution, for whatever reason, did not convince us beyond a reasonable doubt that the defendant did do it. Case in point, how man headlines read “O.J. found innocent!”. Quite a few, although to be fair, most used the word “acquitted”. Certainly more accurate.

  2. deery

    I think, as a general principle, the statements are correct. I think a lot of people become frustrated and angry because, in practice, the system quite pointedly does not work that way for most people.

    People are exposed to the way the system is supposed to work and its ideals constantly through movies, tv, literature etc. But people are also exposed to the way the system really works for those without access to connections and money. And it in no way looks like your statements. And the resistance to acknowledging the reality that there is a wide divergence in treatment as far as the justice system goes leads to a lot of the disappointed and angry rhetoric and reactions on this subject.

    Yes, the system works, for the wealthy, for officers (especially for those that are accused of crimes against vulnerable populations), for celebrities, etc. But the deck is overwhelmingly stacked against everyone else. A two-tiered system of justice cannot accurately be called “justice” at all.

    • This is just cant without substance. I’ve worked in the system. You should see the long, long rap sheets and arrest records of these supposedly system-oppressed perps who walk free for exactly the same reasons OJ did. The crime couldn’t be proven with the available evidence. Whatever you think would work better, it isn’t lets all take a poll to decide who’s guilty, or let’s have different standards of guilt according to race, job and gender, or let’s indict whomever no indictment is most likely to cause blacks to riot in Baltimore.

      • deery

        97% of federal cases and 94% of state cases end in guilty plea deals. If even 10% less people took a plea deal, the court system would grind to a halt.

        Like I said, the principles guiding the justice system sound great, on paper. The actuality of it is that it really only works that way for a few, select people. And if that’s the case, is it really justice?

        • Tyberius A

          No it is not… and what you are saying has actually been a problem in American jurisprudence for a long time. To take it another step further, I found it very offensive for the author to suggest that by removing sexism, racism, etc… the very reason justice is supposed to be blind…would somehow make no difference in the outcome is incredulously elitist. Is she actually making the case that if O.J. had a public defender the outcome would have been the same??? Surely, she must be joking!

        • They take plea deals because they are guilty. Any innocent individuals being prosecuted is wrong, but the number is very, very, VERY small. The problem is the guilty people who are not prosecuted or apprehended…you know, like Hillary Clinton. Or those who rely on connections to avoid the consequences they deserve.

          • deery

            So basically you are alleging that the police arrest and the prosecutors charge the correct individual 97% of the time? No wonder you have such a deep faith that the system works!

            • ….Why would you think it doesn’t?

              • I want to expand on that… police and prosecutors don’t just loiter around the crime scene looking for someone with the right genitals and melanin, then once they find that person, flip a coin and if it’s heads they charge them. There is a relatively complex process that leads up to charges being laid, and why you think that process is so deeply flawed is beyond me. The VAST VAST majority of those conviction rates are moving violations, and yes, quite frankly, I believe that except for some very extenuating circumstances, the person radared at 75 in a 60 zone was actually going 75.

                • deery

                  We are talking about criminal cases Humble, not traffic cases, which are different things in the US. You don’t “plead” to traffic cases, as such.

                  As to why I might believe the number is probably a great deal less than 97%, there are cases like this:
                  Since the scandal broke four years ago, roughly 1,500 cases have been addressed — and around 24,000 remain. “We have no idea where most of those people are, whether they’re noncitizens or not and what has happened to them since,” said Adriana Lafaille, a staff attorney with the ACLU of Massachusetts. With so little information, it’s almost impossible to know how many have been deported for a compromised conviction. And the problem is hardly limited to Massachusetts, as similar scandals and faulty test results arise in other states, including New Jersey and Texas.

                  They estimate about 60,000 cases this one tech handled in Massachusetts alone. And, as noted, it is hardly a problem limited to Massachusetts.

                  https://www.themarshallproject.org/2017/01/18/24-000-defendants-get-a-new-chance-at-justice-in-drug-lab-scandal#.J5jdVXY5k

                  • I regretted that comment the moment I hit post. You’re right, of course, and traffic violations aren’t part of the equation.

                    However… I don’t particularly find it useful to have discussions like this one the extremes. Is what that tech did horrible… Yes. But those were 25,000 cases (I have no idea where you got 60,000 from, it wasn’t in your citation and 24,000+1,500 isn’t 60,000) out of hundreds of thousands*, millions over the time frame we’re talking about. That tech was involved with ICE, ICE handles something like 400,000 deportations each year. And that’s without getting to what we would traditionally think of as crimes.

                    Does the actions of this person invalidate the justice system? I don’t think so. I think the fact that what she did is seen as so universally disgusting is actually a validation of this. We strive not to accept it.

                    • deery

                      I probably got the 60,000 from this story: https://www.cbsnews.com/amp/news/annie-dookhan-chemist-at-mass-crime-lab-arrested-for-allegedly-mishandling-over-60000-samples/

                      They have since dismissed charges in over 20,000 cases she has been proven to have handled, and in most of those cases, the defendants pled guilty.

                      However… I don’t particularly find it useful to have discussions like this one the extremes. Is what that tech did horrible… Yes. But those were 25,000 cases (I have no idea where you got 60,000 from, it wasn’t in your citation and 24,000+1,500 isn’t 60,000) out of hundreds of thousands*, millions over the time frame we’re talking about. That tech was involved with ICE, ICE handles something like 400,000 deportations each year. And that’s without getting to what we would traditionally think of as crimes.

                      Does the actions of this person invalidate the justice system? I don’t think so. I think the fact that what she did is seen as so universally disgusting is actually a validation of this. We strive not to accept it.

                      Yes, so disgusting that she served less than three years in jail. Not to mention that it actually took quite a long time for law enforcement officials to charge her, or indeed, to even stop testifying for the prosecution in drug cases.

                      And it would be one thing if this was an isolated case, but it is not. We see the same thing happen, in various states time and again, and even in the FBI labs. And that is just one failure point in the system. There are multiple points where the state can, and too often does, have its thumb on the scale in a way that the poor and vulnerable have no realistic way of combatting.

                    • deery

                      Oh, and this tech was not working for ICE, but the state of Massachusetts.

          • Alex

            (agreeing with deery, so it’s a sign of the apocalypse)
            Maybe I should buy a lottery ticket then. I was >< this close to having to take a plea deal to avoid my children being removed from my custody a few years ago. I won't give the details, so feel free to disbelieve me, but if I as a moderately wealthy and well represented individual had to face that option I can't believe more vulnerable populations are not routinely faced with a worse dilemma.

            • Tyberius A.

              Alex,

              I thought I was lone in feeling this way about agreeing with deery… LOL, but its a testimony to the beauty of discussing issues like this with others of different and like minds.

              I think your case is very typical, and I do believe you for reasons I’ll just say, because I have worked in law enforcement and I’ve seen it first hand. We can say that experiences reflect on city and one state and even a a dozen or so case out of the million that get adjudicated daily, but that doesn’t mean that problems don’t exist or that we are making them up. And I think that’s probably the most frustrating thing about discussions like this.

              I also have a background in statistics and practice six sigma. You can have 95, 97, and 99% accuracy, but if you are speaking about things like surgery, plane crashes and people who lose their freedom based on a flawed system and the sample of the population is a million, 1% of a million is 10,000! Well, how would you like to be in the 10,000 who lost a family member on the operating table due to faulty equipment, or be on the plane that crashed because of engine failure or lost your freedom because you were in the wrong place at the wrong time and the prosecution had eye-witness testimony (the most unreliable form of evidence) to the contrary? I think most would say in these types of scenarios, even 99% is not good enough!

    • “People are exposed to the way the system is supposed to work and its ideals constantly through movies, tv, literature etc”

      I think this is silly. I think pop culture media exposes us to more episodes that undermine faith in the system… because conspiracy, and injustice and little guys fighting “the man” are more prevalent by far than shows that show the system working and why the system should work the way it was meant.

      • Tyberius A

        Please excuse me, but what exactly is silly about the statement? That most movies and TV shows DO NOT show an idealized version of the justice system or that most peoples views are not shaped by the movies and TV media? I will contend that the news media probably undermines faith in our legal system, but TV and movies do in fact portray an idealized version of the justice system. Be that as it may, that doesnt make the statement “silly” it is based on one’s perception and I also share that perception.

        • It would seem to me that deery hopes to imply that people’s opinions of the justice system are primarily influenced by how deery insists it “really works”.

          My comment, and I think it’s well founded, is that alot of people’s perceptions about how the justice system “really works” is grossly tainted by pop culture, and that the “reality”, though flawed, isn’t as nearly as bad as deery, or the general populace, thinks it is.

          • deery

            No, Tyberious is correct. I think a large segment of the population, never having actually seen the system at work, think the idealized version presented in so much of our culture is the way it works in real life.

            I think it takes seeing how the system operates in actuality for people to become disillusioned.

            • Except that pop culture representations of the justice system are far from idealized. So your premise falls flat on its face. The pop culture renditions of the justice system go a long way in skewing negatively people’s opinions about the system.

              • Tyberius A.

                texagg04,

                You seem to present your opinion on this subject as fact without any evidence whatsoever. Can you offer any evidence, anecdotal or otherwise? I’ll even take a mild example from TV, Movies, etc., where you have observed it portraying the justice system in less than ideal ways to better understand why take the position you do.

                In the meantime, I can offer a few that in fact has portrayed the justice system in very idealized ways:

                1) Law and Order (TV); was one of the most popular crime TV shows of the last several decades, has spun off several other hit series and continues to be shown daily around the world. I was very much and continue to be a huge fan of the show, but the plea deals were obviously made for the guilty and some were turned down by the prosecution for “a higher moral good.” Every, and I mean EVERY defendant got THE BEST attorney in the country. And every main character, especially my favorite Jack McCoy, was at all times ready willing and able to put their lives, careers and reputation on the line to ensure JUSTICE was done! No political cover ups, no bathroom torture, no coerced confessions as happens in real life, albeit rarely.

                2) Blue Bloods (TV); A popular TV show that shows a “law enforcement family” who get together for Sunday dinner and says grace before the patriarch of the family advocates for the best approach to his family for the days moral dilemmas. Nice, fun to watch, but totally absent are the personal challenges that often are known to accompany “law enforcement families” such as alcoholism and physical abuse.

                3) A Few Good Men (Movie); certainly now a classic and one of my all-time favorite military court dramas. After a long, intense investigation, they get the bad guy… a highly decorated general! Absolutely would never happen in real life and did not even come close to what a military trial of that magnitude would consist of. It was idealized also because, while it did show how the military protects high ranking service men, it also portrayed that there is recourse, when in real life there often is not.

                There are many more I could cite as I am a fan of the genre, but in more cases than not, TV and movies will show a very sanitary and idealized version of how the justice system works.

                • Since the topic is all cultural depictions of the justice system, it’s pretty easy to evaluate any individual depiction through a simple lenses. This will be summary, because I really don’t think you’ve considered this too deeply. The following should prod your mind towards examples:

                  1) Americans love a good vigilante story. Every vigilante story is based on the notion that the system doesn’t work right or works too slowly and therefore someone *has* to work outside of the broken system to *do right*. This genre is replete with dozens if not hundreds of examples all ultimately couched in the idea that the system is broken and corrupt. From dramas like the Shield which specifically heroicize outside the line cops to our favorite actions flicks and increasingly our superhero stories where the Superhero is needed because the system fails – entertainment is FILLED with the narrative that the system is broken.

                  2) Americans love a good conspiracy thriller. Sure, fictional as they are they all communicate the notion that system is against the little man.

                  3) The news media. How many times has the media soiled itself trying to show a corrupt or broken system that won’t protect minorities or other narrative-supporting figures, only barely even mention in passing when it’s gotten the story completely wrong and that the system IS actually working as intended.

                  4) Rap music that specifically focuses on cop-hatred and system-hatred.

                  I’m not saying intelligent people *shouldn’t* be able to see through most entertainment as being merely entertainment. But most people take messages away from the stories they see.

  3. All laws are laws. If you are a citizen, you agree to follow them. If you choose to violate them, you do so openly and accept the consequences. If you are a juror, you pledge to follow them.

    • Pete sez howdy

      “All laws are laws. If you are a citizen, you agree to follow them.” That is a statement of values. It is not a statement of any universal truth.

      Another value statement, about laws, is “Laws are arbitrary tools of the power elite, designed to preserve their power & wealth.”

      Both statements are valid expressions of the particular value system from which they spring. Which statement resonates more with you is merely a reflection of which morality system you pre-subscribe to, not of any absolute truth. Folks interested in exploring this notion are encouraged to read pretty much anything written by George Lackoff on “moral politics.”

      • Ethics is about values, the building blocks of ethics. This is an ethics blog. The values you just cited are unethical, because societies don’t work without them.

      • And in case you forgot (I did): You were banned. On June 2, I wrote:

        Attention: Pete sez howdy is banned.

        I don’t work here to be insulted.

        His last post:

        Mr Marshall, your approach to commentary and your version of logic is closer to McCarthyism than anything I have seen in a long time. My sense of the term is from the description given in the wikipedia entry “McCarthyism” :

        “The term is also now used more generally to describe reckless, unsubstantiated accusations, as well as demagogic attacks on the character or patriotism of political adversaries. … … Suspicions were often given credence despite inconclusive or questionable evidence, and the level of threat posed by a person’s real or supposed leftist associations or beliefs was often greatly exaggerated.”

        My response:

        Ironically, the conduct I am writing about is exactly like McCarthyism, where false rumors and anonymous sources are being used to link members of the government to Russia, as a means of discrediting them. And these are the people you have been defending

        I substantiate everything I write here. You choose to deny reality: swell: I asked for evidence, and you return with an insult. Yesterday you used an invalid and factually false claim to discredit me, and begged for forgiveness after I called you on it. That was an effort to rehabilitate Hillary. Now this, I don’t allow guests to insult me; you had your chance to back up your arguments, and failed.

        There is nothing demogogic about the diagnosis that wanting to impeach a President who has not engaged in impeachable acts is unpatriotic and unAmerican. You have a high standard to reach to get away with an accusation like that, and you didn’t even try to meet it.

        I begin to suspect that a Commenter is heading for the ban-heap early on. You were fairly late in showing your true colors, but I had a sinking feeling with this…

        Anyone who believes that the NYT is a liberal paper does not have a great grasp of what “liberal” really is, in my opinion. True liberals dismiss it as a corporate organ. Any alleged “smug progressive” worth her salt is more likely to consider the NYT as an establishment paper than anything worth emulating.
        Check out The Real News Network ( therealnews[dot]com ) and Democracy Now! for some alternative views. Russia Today ( rt[dot]com ) is a pretty good antidote to corporate biased news, too. Enjoy!

        Of course you take umbrage at the term “anti-American” and don’t want to ascribe negative conduct and motives to “the resistance.” The ridiculous claim that the New York Times is a shill for the establishment and is not “liberal” enough is far, far left tell. I don’t know how people get this way, but you can find a cure elsewhere. Nobody calls me Joe McCarthy here and gets a second chance.

        Say So long, Pete. You’re banned.

        You can apply for reinstatment, but you have not. All of the posts you have made since then, except for this one, are spammed.

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