Politics & Law

‘Justice’ in the murder years: More tales from the Brooklyn crypt

Jonathan Simon

The New York Times continues its on going series of investigatory features on wrongful convictions or likely wrongful convictions produced by Brooklyn’s law enforcement and court system in the 1980s and early 1990s with a gripping and sad story by Frances Robles on two Brooklyn teenagers (now 30 and 31) convicted of killing a corrections officer in an apparent car jacking in 1991 (read it here).

Many of these cases have involved Louis Scarcella, a detective with an reputation for always getting a confession and television detective looks that landed him frequently on television as a celebrity detective in the 1990s and 2000s, but whose repeated and frequent use of the same boilerplate language in the “confessions” he extracted, and repeated use of the same crack addicts as “eye witnesses,” has more recently come under critical scrutiny by both the Times and the Brooklyn District Attorney’s office.

I will leave you to read the details of this particular case.  It involves evidence of systematic malpractice in the Brooklyn detective’s unit and the District Attorney’s office, that points to a culture of indifference to legal or factual guilt.  Robles also gives us a fuller portrait of the trial process than we get in previous stories and it looks about as summary as some of the 18th century records from the Old Bailey.

Here was a trial for the lives (in prison, New York had no death penalty at this point) that lasted barely a day and involved an almost shocking lack of evidence.  Here I want to reflect on a few general features of the world of crime and criminal justice we see through the dark glass of these fragments from the crypts of Brooklyn’s recent criminal justice past.There is a sense of violent crime and in particular murder as a kind of normal drum beat.  These were years when the national and local murder rates were approaching their 20th century highs and many of these homicides were happening in the Brooklyn neighborhoods where Scarcella and his colleagues worked.

Both the teenagers caught up in the likely wrongful convictions here had been involved in repeated serious to violent crime, and in the case of one of them seemed to be on an escalating path toward more violent crimes (which have apparently continued during a long prison career). The extreme nature of crime in these years, and the wide dispersion of criminal behavior in the youth population, both operated as a context for police, lawyers, and court personnel, what law and society scholars call the “court working group”, to develop a working philosophy in which the obviousness of the threat and the frequency of guilty justify systematic departure from the model of individual justice and the presumption of innocence.

I say this not to justify it, but to highlight how  clear the danger signs were that justice could go astray.  High crime and concentrated crime are reasons to strengthen court independence and legal constraints, but the politics favors weakening both.

It is often noted today that lengthy rigid sentences have driven defendants to give up their trial rights and plead guilty, perhaps even when they are innocent.  Here though the defendants demanded and got a trial, and the reasonable doubt it exposed seems staggeringly obvious from twenty years’ distance, they were convicted and sentenced to life (in one case even over the fact that the defendant was a juvenile being sentenced as an adult).

The defense lawyer seems to have done a good job addressing the holes in the prosecution case.  What went wrong?  A hint is captured in a quote Robles got from one of the murder victim’s daughters who attended the trial:

Mr. Neischer’s daughter, Nakeea, who was 12 at the time of the trial, remembered of Mr. Bunn: “When they brought up the charges, he was laughing. I don’t know if he thought it was a joke, but as they read the charges and said ‘murder’ it went from giggles to not giggles. I remember thinking, ‘If you didn’t do it, why would you be laughing?’ ”

How the victims and the largely white professionals who made up the Brooklyn court system in the early 1990s saw these young black men is something we can only speculate on but two things resonate with other sociological work on the topic.  First, young men of color appear arrogant and socially hostile to white observers so commonly that it is hard not to think this is a feature in the eye of the beholder.  Second, to a shocking extent, the professionals couldn’t see these young men as individuals.  The witness reported light skinned black men in the early 20s or late teens, the two men convicted were dark skinned and younger.  The original story suggested one had been shot, but neither had a wound.

Investigations are now continuing into other Brooklyn cases, especially those connected to Det. Scarcella.  However one wonders whether such procedures, launched decades after the events, can hope to restore those injured by the abandonment of individual justice principles during this dark period of degrading fear (even more so after reading about the evidence of cover up efforts by police in this case).

Perhaps what is needed is a systematic solution.  Those whose demographic and social circumstances were once used against the should not have it work in their favor.  All prisoners from the era of near hysteria about homicide, 1975 through 1995, who are still in prison should be considered for clemency on the grounds that the entire system was so corrupted by fear and an abandonment of rule of law principles that no convictions produced by it can be fully trusted.

Cross-posted from Jonathan Simon’s blog Governing Through Crime.

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