A Whistle in the Wind

A Whistle in the Wind

I recently read a magazine article about a man who was wrongfully convicted of murder and spent 27 years in prison. The author, Max Adler, a respected journalist, reviewed all of the pertinent legal documents in an attempt to learn what had gone awry in the legal system that led to this miscarriage of justice. The documents ran to around 3,000 pages. While Adler seemed to think this was a lot of material, by today’s standards, it isn’t. Nevertheless, after his review, Adler had this to say:

“By the end, I’m convinced of one thing: Nowhere can words matter less than in the criminal-justice system. Opposing sides defecate piles of paperwork to discourage or deafen the opponent. And they’ll do this for decades. Amid so much noise, the truth gets as lost as a whistle in the wind.”

Adler’s words are a spectacular indictment of the criminal justice system and we need to bear in mind that he is a well-educated, trained, experienced, mature, sophisticated journalist. I wondered, if the legal system looks this way to a person such as Adler, how must it appear to those who are less educated, inexperienced and naive? And, more importantly, what can be done about it?


In the criminal justice system there is relatively little pretrial discovery available to the defendant. Prosecutors do have a legal duty to divulge to the defendant information which, in their subjective judgment, is exculpatory to the defendant. This principle was established in the famous United States Supreme Court case of Brady v Maryland. There is little to no oversight at the trial court level to ensure that prosecutors fulfill this duty. In the ordinary criminal case, a defendant will have to rely on his or her criminal defense lawyer to find and develop evidence that is helpful to the defense. If the defendant is represented by a court appointed lawyer, which is often true, that lawyer will have to act as both investigator and lawyer. Lawyers are trained to be lawyers, not investigators. Court appointed lawyers are also paid very little and they are almost never given the financial resources necessary to hire investigators or expert witnesses. For the most part, defendants in criminal cases who are represented by court appointed lawyers or who have limited personal financial resources to hire a lawyer, are facing long odds, even if they are innocent. It simply isn’t a fair fight.

If we are serious about doing something to fix the problems, we must first address the imbalance of power between the government and the defendant. Texas and most other states rely upon a patchwork system of appointing lawyers in private practice to represent indigent defendants. These lawyers are often inexperienced, paid very little money and have no access to ancillary professional services such as investigators and forensic experts. It would be far better to create a state public defenders office and staff that office with qualified lawyers and an array of professional staff members capable of helping the lawyers find and present the truth. This type of public defenders office also needs money to hire outside forensic experts.   

A second recommendation is to create a mechanism to enforce the duty of prosecutors to reveal the existence of exculpatory evidence before trial, i.e., before it is too late. In the usual scenario, the defendant only finds out about exculpatory evidence many years after conviction, if ever. If the “new” evidence is brought to a court’s attention, a new trial may be ordered, but nothing happens to the prosecutor who violated the duty to disclose the exculpatory evidence. This should change. Prosecutors should face, at the very least, professional disciplinary action for withholding exculpatory evidence and a strong argument can be made that a court should be able to punish a prosecutor for withholding evidence. Of course, this won’t stop the law enforcement agencies investigating crimes from hiding evidence or from willfully failing to investigate alterative theories of the crime, but it’s a start and it gives prosecutors a strong incentive to do their duty.


The truth should never get as lost as a whistle in the wind.


Video is property of Strong Island Films, Inc.


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