The U.S. justice system seems like one of those magic dot pictures to me.
You know what I mean?
A secret image has been encoded inside what looks like random noise, but to see it you’ve got to stare long enough at the whole thing in a certain way.
And I’m not talking about “getting woke” or whatever.
I’m talking about recognizing the limitations of a system that was designed by humans instead of omniscient gods.
Because to find justice under the law, outrage and righteous purpose are not enough.
The occurrence of something tragically bad — something that cries out for punishment to everyone in the wide world — is not enough.
What is enough?
What does it take for a case of wrongdoing, negligence, or malfeasance to become punishable under the law?
Why does it always seem like guilty people are getting off scot-free?
Here’s What I Know
Two years before the jury handed down its infamous “not guilty” verdict in the 2013 trial of George Zimmerman, the guy who shot and killed 17-year-old Trayvon Martin as he was walking home from a convenience store, another murder trial in Florida concluded with an equally outrageous — though less racially charged — verdict.
Orlando mom Casey Anthony had neglected to report that her two-year-old daughter, Caylee, was missing for over a month. She lied to the police about having a job at Universal Studios and said that a nanny had kidnapped her daughter. Police located the supposed nanny, but it turned out she didn’t know Anthony or any of their friends. Police tested the trunk of Anthony’s car and found evidence a human corpse had been there. Anthony denied killing her daughter. These and other facts about the case swirled in the media day after day, ensuring that — like George Zimmerman — Anthony was tried and convicted in the court of public opinion well in advance of her actual trial.
When her case was finally brought to a real court, however, the jury acquitted Anthony of first-degree murder. The media and the American public were stunned.
“How could such an obviously guilty person avoid punishment?” everyone asked.
It happened again in December 2017: nationwide outrage erupted when illegal immigrant Jose Zarate was acquitted for murdering 32-year-old Kathryn Steinle on a San Francisco pier even though he admitted firing the bullet that struck and killed her. Zarate maintained that he found a loaded gun under a bench and it went off accidentally when he picked it up — a claim that the prosecution was never able to refute.
And who can forget the grand-daddy of all such headline-grabbing cases, the 1995 acquittal of O.J. Simpson in the killing of his ex-wife Nicole Simpson and her friend Ron Goldman?
In addition to the widespread outrage they provoked, these “not guilty” verdicts had one important thing in common: a jury was asked whether the prosecution had proved its case beyond a reasonable doubt.
And in every case, the jury decided they hadn’t.
“Beyond a Reasonable Doubt”
It’s a cliche legal phrase by this point: the Internet Movie Database lists two movies and one TV show with the title Beyond a Reasonable Doubt, along with numerous individual TV episodes from various shows.
But what’s it mean, really?
I know what a doubt is, but what’s a reasonable doubt?
Reasonable to whom?
What seems reasonable to one person isn’t reasonable to another, right?
And what does it mean to go beyond a reasonable doubt?
If you feel stupid for critically questioning such a commonly used phrase, you shouldn’t.
Lawyers, judges, juries, scholars, and others have pondered over and debated the meaning of this phrase for literally centuries.
Although the phrase beyond a reasonable doubt does not appear in the U.S. Constitution — the highest law of the land — a 1970 Supreme Court decision recognized that its use was so widespread in America that it could be relied upon nationwide to provide due process protection under the law.
It’s a very high bar to meet: a jury that’s asked to decide whether evidence shows someone is guilty beyond a reasonable doubt must conclude there’s no other plausible explanation for what happened other than what the prosecution has presented.
With the trials of Simpson and Anthony, the defendants could never be placed specifically at the scene of the crime. With Anthony there wasn’t even a crime scene, so to speak.
And in the cases of Zimmerman and Zarate, even though the defendants acknowledged firing the bullets that killed their victims, the prosecution was never able to convince a jury that these killings were intentional.
“Burden of Proof”
When all is said and done in the world of law and law enforcement, you see, any specific accusation or action needs to be supported by specific evidence.
But how do you evaluate the quality of evidence?
How do you enforce the law without violating someone’s right to privacy or their right to a fair trial?
In the case of a police traffic stop, the phrase burden of proof describes the amount and type of evidence of wrong-doing a police officer needs to justify a search. In the case of a court room trial, burden of proof describes the evidence needed to render a “guilty” verdict.
And depending on the situation, the standard for the burden of proof is different.
This is really important.
A civil trial is different from a criminal one because it involves a private individual seeking restitution from another party for wrongdoing, whereas a criminal trial involves the government attempting to punish an individual for breaking the law.
While O.J. Simpson was not convicted of first-degree murder in his 1995 criminal trial, a jury in a 1997 civil trial — i.e., a case brought by the family of Ron Goldman instead of the State of California — did find that based on a preponderance of the evidence, Simpson was personally liable for the deaths of his ex-wife and Ron Goldman. The jury awarded $33.5 million to the families of those killed. How could Simpson be found “not guilty” in one trial but “liable” in the other? Easy. The standard of evidence for a civil trial is lower: it was okay, actually, for the jury to have a few reasonable doubts as long as over 50 percent of the evidence pointed to Simpson as the killer.
With the Zimmerman case, many people may forget that Trayvon Martin’s family actually settled a wrongful death lawsuit out of court for an undisclosed sum with the homeowner’s association that had made George Zimmerman their neighborhood watch captain. The civil suit didn’t get to trial, presumably, because the lawyers for the homeowner’s association looked at how crazy George Zimmerman was and decided there was definitely a preponderance of the evidence suggesting the association was negligent in letting him walk around with a gun pretending to be Dirty Harry. This civil case, had it ever gone to trial, wouldn’t have been about whether George Zimmerman committed second-degree murder beyond a reasonable doubt — that was the failed case brought by the State of Florida — it would’ve been about whether a preponderance of the evidence would show that the homeowner’s association could be considered at fault for what happened.
There’s a Reason I’m Down Here in the Weeds, I Promise
Burden of proof standards are among the most well-known and relevant phrases in American legal proceedings.
But they’re far from the only standards one can find — buried like land mines — throughout our legal system.
For example, the federal False Claims Act defines a “false claim” as any false or fraudulent claim that was “knowingly” submitted to the government (e.g., a reimbursement for medical services).
The word knowingly here is the kicker — how can a federal prosecutor prove what was going on in someone’s head when they submitted a claim, fraudulent or otherwise?
Most people can easily imagine all the mundane-yet-plausible excuses a suspected fraudster could truck out in his or her defense; many of us have even used these excuses at some point, albeit (I hope) with lower stakes — the wrong file was sent, there was a miscommunication, the request wasn’t understood in the first place, etc.
In our modern society, it’s often email, which lulls people into a state of self-incriminating candor, that provides a source of evidence in such cases — one of the many charges of fraud against Donald Trump’s former campaign manager Paul Manafort, for example, rested on an email exchange Manafort had with partner Rick Gates in which they discussed falsifying loan documentation to make a $600,000 loss look like a $3.5 million profit.
But such an obvious example of “knowingly” committing fraud is more likely the exception rather than the rule.
Many people with criminal intent are smart and disciplined. They’re able to avoid leaving a paper trail and come ready with an alternative explanation that seems plausible, thus making it very difficult for the legal system to prove that fraud was “knowingly” committed even when the excuses of the defendant seem a bit outrageous.
Other times there may not be outright dishonesty in play, but a difference of interpretation that must be resolved by a court.
Under contract law, for example, a material breach of a contract is defined as an incident that is significant enough to destroy the value of the contract.
But what is meant by material?
What is significant?
While in some cases a specific threshold might be provided to define material or significant (e.g., “a loss of over $1 million dollars”), in other cases this is up to interpretation.
Other standards relate to whether a trial is even appropriate in the first place.
The grieving parents of Kathryn Steinle have continued to seek some kind of justice through the legal system, most recently trying to hold the federal government at fault for negligence given that the gun that killed their daughter was stolen from a park ranger’s car, but the case was thrown out by a judge because the legal standard wasn’t met.
But the standard wasn’t probable cause or anything related to the burden of proof. Instead, the legal standard related to whether the court could even accept the case, and on this point the judge found there was an absence of a genuine issue of material fact with respect to an essential element of the Steinles’ claim. Translation: there was no direct link between the theft of the gun and the death of Steinle and therefore no logical basis for a trial.
Nobody could prove who stole the gun or how — four days later and several blocks away — it ended up in Zarate’s hands. So under the law, the two events didn’t have enough of a functional connection to warrant a case of negligence against the government even though there was never any doubt that the government had owned the gun and bought the bullet that killed Steinle.
I Don’t Want to Scare You
But this has all been an extremely verbose way of saying that our justice system relies on human beings to write, refine, interpret, and execute the law.
And because laws are written in descriptive language, which is non-mathematical and therefore fallible and imprecise, the first of several potential breakdowns is encoded directly into the framework of the system.
Though in America we hope and expect the system will treat everyone fairly and foster an environment in which justice prevails, laws are not like an impartial computer program that allow people to issue “guilty” or “innocent” verdicts based on clear-cut black-and-white criteria.
Instead, the legal system is like an ongoing muddle, a perpetual boondoggle in which the competing ambitions of those who are seeking justice and avoiding punishment are placed into conflict.
This is the image hidden in the noise: that legal terms and phrases like burden of proof and preponderance of the evidence aren’t just cliches you hear thrown around on TV: they’re the words that lawyers, judges, and juries ponder over and reference as they attempt to resolve — with varying degrees of impartiality — each case that’s put in front of them.
Is the system fair?
But is it broken?
It’s human beings and the ambiguous situations they create that are the broken ones.
The justice system is far from perfect because those who have created it and operate within it are not perfect.
And while we can endlessly tweak the words and the definitions we use to try to create a more perfect system, while we can increase oversight of law enforcement and create a more robust appeals process, we should at the same time reflect on what can be done to make sure the people who operate the legal system are professionals of good character who will interpret the ambiguities of the English language using good judgment and moral intentions.