Justice, Injustice, Or Payback?

By John Carr, NMA Massachusetts Activist

The Boston Globe published what’s intended to be an exposé of lax handling of drunk driving cases in Massachusetts.

The conviction rate in DUI cases is 90%. Reporters want it to be over 95%. 85% of defendants plead guilty. Half of jury trials end with convictions. Most bench trials (with a judge alone) end with acquittals.

In typical criminal cases the defendant pleads guilty if the case is very strong and the prosecutor drops charges if it is very weak. Borderline cases go to trial. Juries see trials where the outcome is in doubt. The conviction rate for jury trials is determined by game theory and has not changed much even as local DUI law changed a lot.

(Defendants also plead not guilty when they have nothing to lose and plead guilty when the system punishes them severely for going to trial. DUI cases in Massachusetts don’t fit those categories.)

DUI is special. Prosecutors aren’t supposed to drop charges. This is a legal rule in addition to a political rule. Many states decided that it is better to put innocent people on trial than risk having prosecutors set guilty people free. There are procedural rules for DUI cases that don’t exist in murder cases. In Massachusetts the prosecutor is not allowed to drop a charge of repeat offense DUI unless he proves in court that he can’t get a conviction.

Many DUI defendants have to face trial despite flaws in the case. (Not most, but many.) They have a choice: judge or jury. When the facts are clearly on your side you want a judge.

Solid cases are guilty pleas, borderline cases are jury trials, and weak cases are bench trials. If we assume judges are entirely unbiased they ought to give more “not guilty” verdicts than juries. They see more cases that deserve acquittal.

The high acquittal rate in Massachusetts does not prove judicial bias on its own.

The Globe is probably right that some judges are biased. Massachusetts courts, police, and prosecutors have a long history of paying attention to connections. Politicians get rides home where we get handcuffs. They get a good deal where we get the book thrown at us.

Many unqualified judges owe their jobs to their connections. It’s easy to believe some judges decide DUI cases based on the defense attorney rather than the facts.

Even so, I’m not worried. It’s more than not caring. It feels like payback to see the system cheated out of a conviction by somebody other than a politician.

Traffic court magistrates take bribes to find people guilty. They have to meet conviction quotas. They don’t think innocent people get tickets. They impose fines because the case is presented by their friend Mr. Police Officer and the driver is a nobody.

Is the system suddenly broken because a defendant won?

Supposedly police are demoralized by the 5-10% of cases where a judge says “not guilty.” As a civilian I’m demoralized when police drive politicians home from drunken wrecks instead of arresting them. When police persuade the state to compromise safety to increase ticketing. When police assignments are based on revenue opportunities rather than safety. When the legal standard in traffic court is “presumed guilty” and you have to pay for the privilege of trying to prove your innocence.

Police are angry because their power to declare guilt has been usurped by judges.

DUI is shorthand for two crimes: driving with a prohibited alcohol concentration and driving with an amount of alcohol that may affect driving. There is no need to prove that the driver was drunk. Lack of impairment is no defense to a charge of prohibited alcohol concentration.

Over the years enforcement has increasingly targeted technical violations rather than drunk drivers. Roadblocks are popular ways to earn overtime pay while looking for people who are driving well but make the magic box indicate “guilty.” Washington, DC police charged DUI even if tests found no alcohol.

I remember propaganda posters from college. Massachusetts was proud of the fact that the mere accusation of DUI came with a ruinous cost even if you were innocent.

As a non-drinker, I fear our DUI laws more than I fear drunk drivers.

Give the Globe 5% more guilty verdicts and I will not consider the system just or believe that it protects me from drunk drivers.

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