The Daily Journal is an erstwhile “newspaper” for attorneys who either have more money than G-d, or (like me) feel they have no choice but to go without necessary medications sometimes in order to pay for it.
That said, I read it not because I want to, but because I feel that I have to. Among other things, the Journal is the source for the Daily Appellate Report, which publishes court opinions before you can find them (easily) anywhere else.
The “news” portion of the Daily Journal varies greatly in value. Most of the time, you can read the entire paper in under 30 seconds.
Because MOST of it is just pure crap.
And this article is the proof of that pudding. Rebecca Delfino reminds me of all that is wrong with our criminal injustice system. At least in the position she takes in this article.
I can’t show you the whole article because it’s behind a paywall. I’m going to assume — and The Daily Journal can try to come after me if they think I’m wrong (Dear Daily Journal, I’m what you call a criminal defense attorney in Fresno; in other words, I’m judgment-proof) — but I’m going to assume I can screen-cap a tiny portion of it as fair use to make this post, as I did for the featured image of this post.
Ms. Delfino’s Article is Unethical
So what’s the problem with this unethical ethics article?
The wrong is two-fold.
First, Ms. Delfino proposes that unscrupulous defense attorneys require us to consider, possibly, new rules to keep us slime bags from arguing that the evidence has been manipulated. The video the jury is shown is a “deepfake,” which apparently is one word for purposes of discussing videos that have been manipulated to show something that isn’t real.
So says the defense.
“Unethical!,” shouts Professor Delfino.
Without evidence. Deeply fake, or otherwise.
But the second wrong, as shocking as it may be for Ms. Delfino, is that prosecutors, their investigators, and their “pre-investigators,” or “pseudo-investigators” (a.k.a., cops), are sometimes unethical enough to manufacture evidence.
Perhaps even deepfakes.
Causes of Manufactured Evidence
Sometimes the manufacturers of deep fake (note that this is two words here) evidence might do so “inadvertently.” So convinced are they of the truth of their own position that they fall victim to various kinds of biases: confirmation bias, availability bias, oligarchic bias….
Okay, maybe that last one is not yet recognized as a valid bias. But, if you think about some of the things that happen when someone “doesn’t comply” with conflicting orders barked out by various police dogs, and their handlers, it makes sense to do so.
After all, without their oligarchic bias, they might realize that people don’t naturally refuse to comply with the police, and they might consider other factors as the cause of the unexpected behavior. Like that different cops are barking different (and conflicting) orders.
Keith Harward & the Forensic Odontologist
In any event, someone — say maybe a “forensic odontologist” — is told that one “Keith Harward” has been arrested for the heinous crime of bashing in the skull of a fellow sailor, as he lay sleeping next to his wife. The mother of his children aged “infant” to 4 years old. After killing him, Harward supposedly rapes and sodomizes the wife/mother, who silently endures it, even smoking a cigarette with him afterwards so that her babies are not violated — as had been threatened by Harward.
The arsenic odontologist (that’s not a typo: he’s poison) definitively “matches” Harward to bite marks left on the admittedly seriously-traumatized living victim of “his” crimes.
The arsenic odontologist, eager to make a name for himself, and help establish the “specialty” of arsenic odontology, does not stop to think of whether or not he is helping to send an innocent man to prison for life. His biases, unnoticed by him, have been kicked into high gear with the knowledge that Harward is arrested, and Harward is a “known biter,” because he bit the arm of his significant other during a domestic violence fight that reads like (what we call in the law) mutual combat.
Thereafter, Harward’s teeth “match” — despite the fact two prior dentists excluded him (but they didn’t know he was guilty). (Not to be out-faked, the prosecution convinced those dentists to change their opinion for trial.)
Harward, Famously, was Innocent
Of course, it took 33 years to show that Harward was innocent, after the arsenic odontologist helped convict him. Thirty-three years that Harward spent in prison, while his parents died, and his life…well.
No children. No life, except his life sentence. Twenty-seven when he went in, he was finally released at the age of 60, after DNA proved the arsenic odontologist was wrong. Though two arsenic odontologists testilied against Harward, DNA evidence later showed that Jerry Crotty, another sailor, who went on to attack other women after his scapegoat was imprisoned, was the murderer, and rapist.
The evidence against Harward, you might say, was a deep fake. (Based on junk science, but that’s a blog post for another day.)
Ms. Delfino might frown on this evidence uncovered by the Innocence Project, and used to (finally!) free Keith Harward.
Police Would Not Create Deepfakes
Of course, Ms. Delfino’s point is well-taken. Only unscrupulous defense attorneys would ever attack evidence on the basis that it was some kind of fake. Because no one but defense attorneys ever falsifies evidence against accused people.
And, prosecutors regularly hide evidence, they never really manufacture evidence.
Would they? (Hint: In that link, at least one did.)
The frequently-found problem — though found only after lives are destroyed — is cops, DAs, and (btw) JUDGES, too often making up their minds that someone is guilty, without evidence. So convinced are some, they make shit up to support their position.
Even when it means that their victim are put to death, or die in prison. In fact, studies have shown that as many as four percent of those on death row may be innocent. Falsely convicted. (Of course, thousands die in custody before their cases are even heard in court. But, again, that’s another post.)
That might seem a small number to you.
Unless one of the four percent…is you.
Deepfakes: Coming to a Prosecution Near You
No doubt, Ms. Delfino will reject all those potentialities. This very blog post, she might say, is evidence of the unethical nature of defense attorneys.
I mean, how dare I argue that possibly deepfakes (one word) might really be created by some true believer, lacking in real evidence, on the prosecutorial side, just to obtain the conviction of someone they know is guilty?
Perhaps Ms. Delfino and I just have a different definition of what it means to be ethical.
And given that I recognize that biases — and even a lack of ethics — can afflict either side of the adversarial system, I’m going to continue to call out the deep fakers.
No matter in which Loyola Law School they make a pretense of being professors of “ethics.”