My guest this week is the lawyer and author Matthew Martens. Matthew is a former prosecutor and now a partner at WilmerHale law firm in Washington, D.C. His conservative politics and Christian beliefs have led him to construct a moral critique of the criminal justice system, which he sets down in his book
Death by medical error: 200,000+ per year. Source: Marty Makarky at John Hopkins School of Public Health. Actually Makarky thinks the number could be as high as 300,000.
[Time 49:00]; Status of “crime” per speeding in auto vs. exclusion of job candidate due to race. I use terms “illegal” and “criminal” to label actions that I deem to be merely against the law vs. intent; respectively. Out of stupidity, I may unknowingly violate civic building codes when I repair my home. That would be illegal. But, if I knowingly and deliberately steal that candy-bar at 7-11; without payment- that would be criminal.
I paused at [Time 48:00]; only because it was bedtime. Will resume. I like Martens’ position on considering civil rights-motivated justice system reform as relatively recent per a historical lens. This leads to a logical question oh how comprehensive was reform?
But, events of 2020 that could have been an opportunity for examination (of criminal justice system) became hijacked by power-hungry DEI directors in 100 American cities. It became clear to me during 2020 that DEI had a secret pathway planned of “Step 1, step 2, step 3, etc.,” with all relevant information hidden “top secret.” While individual justice advocates viewed the conviction of Officer Chauvin as “accomplishment”; I sensed that DEI viewed the conviction as a necessary ‘step 3’ required in order to proceed to step 4. While DEI’s police reform/abolition scheme is about gov interaction with the public, it is hidden from the public.
Was there an implication that "eight years" is considered a speedy trial? I'm sure he meant that in an opinion, a delay as long as eight years was okay given the peculiar facts of the case. I can only speak of California, but I suspect the norm across the country is similar to California law, which codifies the speedy trial right. For misdemeanors, a defendant must be brought to trial within 30 days if he's in custody at the time of arraignment and 45 days if he is out. The case will be dismissed unless he makes a knowing waiver of his speedy trial right. For felonies, it's more complicated, depending on whether the arraignment is on a complaint or an indictment. (In order to be put on trial for a felony, probable cause must first be found. That's satisfied by a preliminary hearing before a magistrate or by a grand jury having heard evidence and returning a true bill. Both are reviewable before trial and if cases will be dismissed in the absence of sufficient evidence of all elements of the crime(s).) A preliminary hearing must be held within 10 days of arraignment and completed within 60 days. Again, this can be waived. Once a person has been held to answer, an information is filed 28 days later and the trial must commence within 60 days of that. Once again, the time parameters can be waived by the defendant.
What I suspect happened in the eight year case is that there was a delay while the defendant was either on bench warrant status or was not promptly arrested on a filed arrest warrant. In such cases, it's possible for a criminal defendant to suffer prejudice by the passage of time. Witnesses and tangible evidence can disappear, for example. Speedy trial motions are brought and won by the defense after delays of a couple of years. For short delays, they must show actual prejudice. It's been a while, now, but prejudice can be implied after the passage of a certain period, often equivalent to the crime's statute of limitations. In such cases, the case will be dismissed unless the prosecution can persuade the court the delay was with good reason, usually the defendant absconding.
As anyone can see, it can get complicated but to say or imply the a speedy trial in this country is eight years is to mislead. I'm sure he didn't intend that.
As someone whose middle name is “sovereign” (not really, it’s actually James, but it’s the same difference, especially as a graduate of the class of ‘007), I don’t recognize or accept the legitimate right of the US government to punish me.
The death penalty discussion was the most interesting. Arguments that the death penalty is used inequitably can suffer from the fact that something may be lost when aggregating individual crimes with their own specific details into an aggregate. But if it is really the case, that the likelihood of a death setnence is strongly related to the race of the VICTIM, that suggests that it is being applied inequitably.
As to wrogful convictions, the 2.2% figure the guest gave is likely an underestimate. This is because exonerations, when they do happen, usually relate to the discovery of DNA evidence. But there is no guarantee that there will be useful DNA available to test, and whether there is testable DNA is unrealted to whether the conviction was rightoues or wrongful.
I found this a very interesting conversation, and I generally don’t at all mind a Christian prism for basically anything precisely because I do tend to think they are operating, pun not only not intended but making me cringe as I type it, in good faith. And I also should preface my comment by stating that I live my own life by a pretty strict moral code that certainly has some roots in my Mormon upbringing.
Now then: the point of a criminal justice system is two fold, in my opinion. The first is simple danger. The comparison between discrimination and speeding is ultimately pointless because discrimination, while not moral and odious if used to terminate someone’s employment, does not place the general public in danger. Driving more than 25 mph over the speed limit absolutely does.
The second is providing an incentive system designed to promote good behavior. This is why the idea of rethinking what a crime is, which inevitably leads to the phenomenon Steve identified in his comment, that being not prosecuting quality of life crimes, cannot ever be pursued vigorously in anything resembling a functioning society. ANY law or policy which privileges the lawbreaker over the law abiding taxpayer is unjust on its face, and I suspect that if anyone had asked him about it, Yeshua from Nazareth would have said the same thing. To force the moral to countenance immorality in pursuit of a more compassionate form of criminal justice is in itself immoral.
Interesting history of bail. But I sense a sleight-of-hand going on. He didn't say "they didn't have bail in the Colonies", merely that they went right to the magistrate *immediately* to determine bail. The length of time spent in jail (if you don't have bail) obviously has increased -- we no longer have a right to a swift trial.
The lack of a swift trial seems to be the real issue, creating incentives for plea-bargins on both sides. But I don't know how you fix that without streamlining the whole system (which likely increases the error rate). He suggests that we re-evaluate what is a crime. Which sounds an awful lot like "let's not prosecute shoplifting below $900". Or (since he seems to think that racial discrimination in hiring is worse than speeding), maybe we don't issue speeding tickets.
I don't think that ends well for society.
Ultimately, you need to reduce the crime rate. Until then, I suspect I'd accept a higher error rate (false guilty / false innocent). As long as my chances of getting shot on the street are higher than my chances of being falsely convicted, it's a rational trade.
To use the airplane analogy. If I'm dying, and my only hope is treatment in Amsterdam, I'll get on that plane, even if it crashes 2% of the time.
There was a very good reason the founding fathers, like Tom Paine and Benjamin Franklin went to such lengths to separate religion from law. Mercy may lie in the heart of the victim, but the guiding principle for a jury should be the law and the truth, not some manipulated sense of "forgiveness."
The United States may have been founded on principles espoused by Christianity, but we are not a religious republic, and many, if not most Americans would be very uncomfortable living in such a theocracy. I don't need to read the "THE HANDMAID'S TALE" to see the dangers inherent.
As a career prosecutor I would NEVER claim to be "God's agent" in any prosecution and I find it very alarming that anyone who brings cases in the name of the people would claim that any punishment they seek has the approval of the divine.
This guy needs to practice law in the 17th Century!
Wonderful episode, completely riveting from start to finish...
Death by medical error: 200,000+ per year. Source: Marty Makarky at John Hopkins School of Public Health. Actually Makarky thinks the number could be as high as 300,000.
[Time 49:00]; Status of “crime” per speeding in auto vs. exclusion of job candidate due to race. I use terms “illegal” and “criminal” to label actions that I deem to be merely against the law vs. intent; respectively. Out of stupidity, I may unknowingly violate civic building codes when I repair my home. That would be illegal. But, if I knowingly and deliberately steal that candy-bar at 7-11; without payment- that would be criminal.
I paused at [Time 48:00]; only because it was bedtime. Will resume. I like Martens’ position on considering civil rights-motivated justice system reform as relatively recent per a historical lens. This leads to a logical question oh how comprehensive was reform?
But, events of 2020 that could have been an opportunity for examination (of criminal justice system) became hijacked by power-hungry DEI directors in 100 American cities. It became clear to me during 2020 that DEI had a secret pathway planned of “Step 1, step 2, step 3, etc.,” with all relevant information hidden “top secret.” While individual justice advocates viewed the conviction of Officer Chauvin as “accomplishment”; I sensed that DEI viewed the conviction as a necessary ‘step 3’ required in order to proceed to step 4. While DEI’s police reform/abolition scheme is about gov interaction with the public, it is hidden from the public.
Was there an implication that "eight years" is considered a speedy trial? I'm sure he meant that in an opinion, a delay as long as eight years was okay given the peculiar facts of the case. I can only speak of California, but I suspect the norm across the country is similar to California law, which codifies the speedy trial right. For misdemeanors, a defendant must be brought to trial within 30 days if he's in custody at the time of arraignment and 45 days if he is out. The case will be dismissed unless he makes a knowing waiver of his speedy trial right. For felonies, it's more complicated, depending on whether the arraignment is on a complaint or an indictment. (In order to be put on trial for a felony, probable cause must first be found. That's satisfied by a preliminary hearing before a magistrate or by a grand jury having heard evidence and returning a true bill. Both are reviewable before trial and if cases will be dismissed in the absence of sufficient evidence of all elements of the crime(s).) A preliminary hearing must be held within 10 days of arraignment and completed within 60 days. Again, this can be waived. Once a person has been held to answer, an information is filed 28 days later and the trial must commence within 60 days of that. Once again, the time parameters can be waived by the defendant.
What I suspect happened in the eight year case is that there was a delay while the defendant was either on bench warrant status or was not promptly arrested on a filed arrest warrant. In such cases, it's possible for a criminal defendant to suffer prejudice by the passage of time. Witnesses and tangible evidence can disappear, for example. Speedy trial motions are brought and won by the defense after delays of a couple of years. For short delays, they must show actual prejudice. It's been a while, now, but prejudice can be implied after the passage of a certain period, often equivalent to the crime's statute of limitations. In such cases, the case will be dismissed unless the prosecution can persuade the court the delay was with good reason, usually the defendant absconding.
As anyone can see, it can get complicated but to say or imply the a speedy trial in this country is eight years is to mislead. I'm sure he didn't intend that.
I don’t believe American society has been correctable on a collegial basis — that’s an illusion, or vanity of respectability politics.
As someone whose middle name is “sovereign” (not really, it’s actually James, but it’s the same difference, especially as a graduate of the class of ‘007), I don’t recognize or accept the legitimate right of the US government to punish me.
The death penalty discussion was the most interesting. Arguments that the death penalty is used inequitably can suffer from the fact that something may be lost when aggregating individual crimes with their own specific details into an aggregate. But if it is really the case, that the likelihood of a death setnence is strongly related to the race of the VICTIM, that suggests that it is being applied inequitably.
As to wrogful convictions, the 2.2% figure the guest gave is likely an underestimate. This is because exonerations, when they do happen, usually relate to the discovery of DNA evidence. But there is no guarantee that there will be useful DNA available to test, and whether there is testable DNA is unrealted to whether the conviction was rightoues or wrongful.
I found this a very interesting conversation, and I generally don’t at all mind a Christian prism for basically anything precisely because I do tend to think they are operating, pun not only not intended but making me cringe as I type it, in good faith. And I also should preface my comment by stating that I live my own life by a pretty strict moral code that certainly has some roots in my Mormon upbringing.
Now then: the point of a criminal justice system is two fold, in my opinion. The first is simple danger. The comparison between discrimination and speeding is ultimately pointless because discrimination, while not moral and odious if used to terminate someone’s employment, does not place the general public in danger. Driving more than 25 mph over the speed limit absolutely does.
The second is providing an incentive system designed to promote good behavior. This is why the idea of rethinking what a crime is, which inevitably leads to the phenomenon Steve identified in his comment, that being not prosecuting quality of life crimes, cannot ever be pursued vigorously in anything resembling a functioning society. ANY law or policy which privileges the lawbreaker over the law abiding taxpayer is unjust on its face, and I suspect that if anyone had asked him about it, Yeshua from Nazareth would have said the same thing. To force the moral to countenance immorality in pursuit of a more compassionate form of criminal justice is in itself immoral.
Interesting history of bail. But I sense a sleight-of-hand going on. He didn't say "they didn't have bail in the Colonies", merely that they went right to the magistrate *immediately* to determine bail. The length of time spent in jail (if you don't have bail) obviously has increased -- we no longer have a right to a swift trial.
The lack of a swift trial seems to be the real issue, creating incentives for plea-bargins on both sides. But I don't know how you fix that without streamlining the whole system (which likely increases the error rate). He suggests that we re-evaluate what is a crime. Which sounds an awful lot like "let's not prosecute shoplifting below $900". Or (since he seems to think that racial discrimination in hiring is worse than speeding), maybe we don't issue speeding tickets.
I don't think that ends well for society.
Ultimately, you need to reduce the crime rate. Until then, I suspect I'd accept a higher error rate (false guilty / false innocent). As long as my chances of getting shot on the street are higher than my chances of being falsely convicted, it's a rational trade.
To use the airplane analogy. If I'm dying, and my only hope is treatment in Amsterdam, I'll get on that plane, even if it crashes 2% of the time.
There was a very good reason the founding fathers, like Tom Paine and Benjamin Franklin went to such lengths to separate religion from law. Mercy may lie in the heart of the victim, but the guiding principle for a jury should be the law and the truth, not some manipulated sense of "forgiveness."
The United States may have been founded on principles espoused by Christianity, but we are not a religious republic, and many, if not most Americans would be very uncomfortable living in such a theocracy. I don't need to read the "THE HANDMAID'S TALE" to see the dangers inherent.
As a career prosecutor I would NEVER claim to be "God's agent" in any prosecution and I find it very alarming that anyone who brings cases in the name of the people would claim that any punishment they seek has the approval of the divine.
This guy needs to practice law in the 17th Century!
Not buying what Martens is selling. To many rhetorical tricks are used to make his case.