What is criminal justice?

By that provocative title I mean what constitutes justice for those charged with crimes? Recently, the US Supreme Court heard several cases about what constitutes minimum standards of representation for the indigent.

Another case has just come before the US Supreme Court asking that very question.

Richard Rosario seemed to have a pretty airight alibi when he was accused of murder in the Bronx in 1996. He claims to have been 1,000 miles away from the  murder scene. But two eyewitnesses picked him out of a lineup. Rosario can show that he was in Florida for the entire month surrounding the murder. And dozens of people volunteered to vouch for Rosario's whereabouts in Florida but prosecutors did not follow up, relying instead on the eyewitnesses. Now, my criminal justice major students will know that eyewitness identification is notoriously unreliable, and uncorroborated eyewitness testimony is the single leading cause of wrongful convictions. It is also, according to experts, the evidence best refuted by alibi.

That should have boded well for Rosario. Yet the prosecutors went ahead with his murder trial. His court-appointed lawyer asked for and got money to send an investigator to Florida to check out the alibi witnesses but never followed through. When a new court-appointed lawyer was assigned to Rosario's case, she mistakenly believed that the investigator-funds request had been denied. Rosario was convicted.

On appeal, the alibi witness information was alllowed but the judge refused to overturn the conviction, saying that Rosario's defense had been "skillful" and that the lack of alibi testimony at the murder trial was not material to his appeal because the lawyers' mistake had not been intentional.

What? you may be wondering. What difference does it make that the mistake was not intentional? It still resulted in Rosario having a less-than-rigorous defense. A federal district judge later agreed with the appeals judge that individual mistakes do not matter in judging whether a defendant was adequately represented, only the overall performance matter. But if that individual mistake could cost the defendant the trial, should that not be taken into consideration? Apparently not, according to a full federal court review that took place last year.

Now the case is before the Supreme Court. We'll have to wait to hear what the nine think about the adequacy of counsel for the poor.

Source: Adam Liptak, The New York Times, May 2, 2011.