The Bend at the End: What Lawyers Can Learn About Disruptions and Innovations in Criminal Defense Practice from Market Analysis
| Jurisdiction | United States,Federal |
| Publication year | 2018 |
| Citation | Vol. 69 No. 3 |
The Bend at the End: What Lawyers Can Learn about Disruptions and Innovations in Criminal Defense Practice from Market Analysis
Donald F. Tibbs
Justin Hollinger
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"The link to the workers' struggle is located in the desire to blow up power at any point of its application."1
"[P]ast performance is not an indicator of future success."2
In the world of stock market analysis, there is one certainty: the stock market is unpredictable.3 It acts with a will of its own, and despite experts' attempts at market forecast, no single person or machine can accurately predict the highs and lows of each day.4 Nonetheless, market
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experts extol new techniques; develop computer algorithms;5 and attach interesting monikers, such as Stochastics, MACD, and Bollinger Bands.6 But, in the end, they all succumb to the same rule: the unpredictability of the market suggests that no trading strategy is 100%, without fail, perfect every single trade.7
That said, however, there is one simple market rule to which, if pressed hard enough, every investor, no matter how sophisticated or novice, would agree. That rule is simply that you should always follow the general direction of all the other investors until it is no longer popular to follow. So common is this approach, affectionately known as "Trend Trading,"8 that a popular mantra was developed: "The Trend is Your Friend . . . Until the Bend at the End."9 At its base level, this mantra makes great sense. If everyone else is investing in one direction, why would you be contrarian? To be contrarian, or go against the trend, is a riskier investing strategy, mostly because the world of market investing is a zero-sum game.10 For every winner, there is a loser. Perhaps, the same can be said of the American criminal justice process.
When it comes to the practice of criminal law defense, some similarities exist to stock market investing. Lawyers employ their own strategies or styles, but in the end, they generally stick to the same game plan. That is because the criminal justice process is as unpredictable as the market11 and is also a zero-sum game: for every winner there is a
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loser.12 Of all the different trial strategies employed, the most popular entails defense lawyers not allowing their clients to take the witness stand or not letting the Subaltern Speak.13
And perhaps one can understand the wisdom of such a strategy. First, there is the possibility of a cross-examination damaging the potential of the case. Also, defendants would be implicitly surrendering their privilege under the Fifth Amendment of the United States Constitution14 against self-incrimination. Finally, it is sometimes impossible to convince someone you are innocent of a crime. Most lay jurors wonder, "What do you have to hide? Why do you need to be silent? And if you were innocent, why would you be arrested?"15 While these are notable concerns, I suggest that a disruptive innovation would require defense lawyers to rethink that strategy given that we are at "the bend" at the end of "the trend."
The American criminal justice system is infected by a virus that impacts the outcome of most trials: anti-black sentiment and racism.16
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For African-American defendants, especially young black men and women, this virus, despite their lawyer's best efforts, impacts the success of their trial, thereby making the zero-sum game an unbalanced one.17 Simply, black people believe they live in a world where they can't win. In fact, in most instances, they don't win.18 If it is true, and I think most people would agree that racism condemns many black defendants long before the trial even gets underway, this means the trial outcome is not dictated solely by trial strategy.19 If that is the case, it brings one to ask, what is the wisdom of having defendants sit silent while the state, and more importantly, the police officer, present the only narrative of their case?
Of course, criminal defense attorneys can put on their own witnesses,20 but that would be tantamount to following the trend or utilizing the same trial strategy that all defense lawyers follow. The real disruption (or profit in terms of successful Outcomes) in criminal defense happens at the point or moment of recognizing the end of the popular trend, known again
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as "the bend," rather than employing the strategies that have yielded small profits or gains.
Before recognizing "the bend," one must first recognize "the trend." Finding "the trend" exposes the possibility of disruption in common practices. As with traditional market analysis, the trend always follows sentiment, feelings, or emotions attached to traditional beliefs.21 Interestingly, the same can be said for criminal defense. The trend in criminal law practice and policy has historically been influenced by the sentiment and emotions attached to anti-black racism.22 Historically, it has hovered between overt and covert practices. Whether Jim Crow segregation (overt racism)23 or stop-and-frisk (covert racism),24 racial injustice exists in the law, and the courts have been loath to fix the problem. Indeed, in some instances, the courts have been the problem more than the solution.25
Failing to recognize the trend (in this case the history) that the criminal justice process is heavily indebted to American racism leaves criminal defense lawyers, and by association their clients, exposed to failure. American courts began their history burdened with the responsibility of enforcing anti-black laws. The United States Constitution compromised the issue of black rights to ensure white unity, and the early decisions of the Supreme Court of the United States in the racial area reflected both law and society's firm belief that blacks were not entitled to rights reserved for white men.26 There were exceptions,
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but Chief Justice Taney ostensibly summarized this belief in the infamous Dred Scott case where he wrote that blacks "had no rights which the white man was bound to respect."27
Unfortunately, black defendants find little comfort in recounting the unfairness in the criminal justice system as deficiencies in the court system. Such recognition also fails to alter their perceptions of a fair outcome. To black people, the courts are an alien process controlled by a white majority; which since the courts created the process, the courts could choose to fix the process if they so preferred. While some might point to the Warren Court's Criminal Procedure Revolution as a positive gain for black defendants,28 unfortunately, the legal outcomes of that era have changed the actual plight of the average criminal defendant so little that black defendants have been given no reason to alter their conception of the criminal justice system.
It is not that the Criminal Procedure Revolution was insignificant or that the legal rulings were unwelcome by blacks. Rather, many of the procedures were less concerned with protecting the souls of black folk, than as a means of requiring police and prosecutors to comply with long established rules of due process.29 Said differently, the changes wrought
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by the series of constitutional protections engrafted onto criminal procedure during the last decade are more heart-warming to those who worked to attain them than helpful to those they were designed to shield.
Since Mapp v. Ohio,30 it has become standard procedure in some police departments for an arresting officer to "learn the script."31 The script is so noticeable that if one sits and listens to several different police officers testify about drug cases, it appears that every defendant engaged in the exact same action, which is humanly impossible. The commonality of the testimony of police officers leads one to believe that either every defendant had the exact same set of circumstances, or simply, that someone is lying.
Officers routinely testify that as they approached, the defendant dropped the evidence to the ground, the officer picked it up, found that it was contraband, and placed the defendant under arrest.32 This narrative makes sense because it is rock solid on constitutional grounds during cross-examination.33 Defendants, however, usually deny this story,
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telling their lawyers that the police simply walked up and searched them. One judge has noted that the extraordinary number of cases in which such testimony has been given suggests a disturbing amount of police perjury.34
Unfortunately, police perjury is widespread. Not only is it used to obtain criminal convictions in "dropsy"35 and "plain view" cases36 but also to cover up police brutality, bribery, and shakedowns. This process of testifying under oath to facts the officer knows to be untrue is so normative that is has earned the moniker of "testilying."37 Testilying is so common that a simple web-based search details an ample number of videos and news stories of officers perjuring themselves to either obtain
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convictions or to avoid criminal prosecution in their own cases.38 These stories are a worthy read for any nascent defense lawyer because, although they surely are aware of the practice, its widespread usage may come as a surprise.
To practitioners of criminal law, it is not a new idea that "police scandals are cyclical; official misconduct, corruption, brutality, and criminality are endemic; and necessarily, so is police lying to disguise and deny it."39 Yet, the same practitioners have afforded tremendous credibility to the testimony of police officers. For defense attorneys, this consideration frequently belies the reluctance to counsel clients to take the stand and present their side of the story...
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