Is the System Really That Broken? Observations on Public Distrust & Potential Solutions

8/13/2019 Is the System Really That Broken? Observations on Public Distrust & Potential Solutions

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Is The System Really That Broken?Observations on Public Distrust and Potential Solutions

By Ken K. Gourdin, CP

I. Introduction If commentary which often appears in response to media coverage of police, prosecutors, judges, and juries (along with that which often appears in response to attemptsto defend them) is accurate, there is a widespread distrust of the American criminal justice systemamong the public it is intended to serve. Because they are on the front lines of the fight againstcrime and disorder, police officers are prime targets for this distrust. According to many, suchdistrust is well founded simply by virtue of the facts that police officers possess such power, alongwith wide discretion in its exercise. Prosecutors, too, are entrusted with enormous power and widediscretion, and critics claim that prosecutors routinely abuse these tools to abet law enforcementmisuse of power by looking the other way. Nor is overlooking abuses confined to prosecutors.Critics claim that judges, too, routinely abet abuse of power by police and prosecutors by failingto rein in their abuses. At the end of the day, police officers, prosecutors, and judges all aregovernment employees. While it would seem that a perfect antidote to overreaching by theseemployees is increased involvement in the system by private citizens, citizens often forego this

opportunity (and shirk this duty) by proffering trivial excuses as reasons why they cannot serve.Finally, potential solutions are offered, along with concluding comments, in the last section.

II. Police Officers On January 1, 2011, I published an op-ed in The Salt Lake Tribune regarding the police shooting of an armed man on the grounds of the Oquirrh Mountain LDSTemple. In it, I critiqued on-line comments to coverage of the incident in the Tribune in whichcommenters offered various alternatives to shooting the man. Among such alternatives were firinga warning shot into the air (a poor option according to the laws of physics because what goes upmust come down, and what comes down may injure or kill a totally innocent bystander); shootingto wound rather than to kill (bad police procedure because adrenaline already makes officers lessaccurate, and shooting at an extremity in such circumstances would increase the likelihood that

officers would miss entirely); using nondeadly force (a poor option because of the likelihood itwould simply have angered him, leaving him free to harm or kill someone else); and allowing himto flee with a weapon (a poor option because officers can ill-afford to give someone involved insuch an incident the benefit of the doubt). 1

As a counterpoint to the incident at the Oquirrh Mountain LDS Temple, in 1994, St. George Policewere called to the scene of a man wielding a hatchet. While some in the public were critical ofofficers handling of the Oquirrh Mountain Temple incident because it led to the mans death,members of the public played a different role (in fact, one which was diametrically opposed) inthe St. George incident. While some bystanders in St. George called for officers to use a different,far more drastic alternative, officers were able calmly and patiently to defuse the volatile situation

without anyone getting hurt. In response to that incident, I wrote the following in a letter to theeditor, also published in The Salt Lake Tribune :

I must comment on the deplorable actions of bystanders as St. George police triedto subdue the disturbed man who was carrying a hatchet, as reported in The TribuneJune 7. The police acted in a calm, patient and appropriate manner by showing therestraint necessary to defuse the situation.


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Ken K. GourdinPage 2

Because they carry firearms and are sometimes forced into the regrettable situationof threatening to use them, as well as having to use them, police are oftenstereotyped as having a lack of respect for human life. Nothing could be further

from the truth. In the vast majority of cases, if there is any other option available,officers would prefer to take it rather [than] use their guns.

If it had come to that, I'm sure that at least one of those bystanders would havewhined and moaned about another case of excessive force.'' But I ask, who hasgreater respect for human life? The bystanders who called, ``shoot him,'' or the

police officers who didn't? 2

Its possible that more South Jordan officers are trigger -happy while comparativel y fewer St.George officers are, or that South Jordan officers in 2011 were trigger -happy while St. Georgeofficers in 1994 were not, but I doubt it. As such, I believe the contrast in the respective public

responses to these incidents (i.e., on the one hand, it was bystander members of the public whocalled shoot him in the St. George incident, while on the other hand, it was members of the public commenting on Tribune coverage of the incident who called South Jordan officers trigger -happy) is instructive.

If on-line comments to my January 1, 2011 Tribune op-ed are to be believed, the perception thatofficers are quick to resort to deadly force even when other viable alternatives exist apparently iswidespread. But contrary to that perception, no agency employs a majority, or even a sizeableminority, of trigger -happy officers. As I told a former -police-officer friend of mine who had

been involved in a shooting incident, even though its not fair because they are neither psychologically nor sociologically well -engineered to do so, we ask both our police officers and

our soldiers to shoot (and to shoot at) people. They must do so to ensure that they (and that we)can go home to our families at the end of their shift or deployment. And even though the choiceto use such force is a difficult one, if the choice is between using such force or allowing someoneto harm or kill an innocent person I hope they would choose to use such force every time.

As I also told my former-officer friend, the reason we know that those we ask to use firearms ontheir fellow human beings are neither psychologically nor sociologically well -engineered to doso is because if they were, we would call them psychopaths or sociopaths. While there seems to

be a widespread perception among at least a minority of the public that the very reason policeofficers and soldiers choose those career paths is because of a tendency toward such maladaptive

psychological and sociological traits, the widespread incidence of Post-Traumatic Stress Disorder

(PTSD) among both groups apparently refutes this notion. By contrast, even though I am alayperson, I doubt its much of an overst atement to say that psychopaths and sociopaths bydefinition are virtually immune to PTSD (at least when it comes to the violence which they,themselves, instigate).

It is true that the police, as the point of initial contact between the public and the criminal justicesystem, are seen as a primary reason for the systems dysfunction. However, the publics distrustis not limited to police officers, as further examination will indicate.


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III. Prosecutors While police officers are on the front lines in the effort to enforce the lawand to maintain order, the publics distrust is not limited just to them. While prosecutors sworn

duty to uphold the law includes the responsibility of ensuring that neither the public nor the officerswho protect it violate the law, the corollary to the apparently-widespread (but erroneous) public

perception that officers are trigger -happy and otherwise eager to abuse their power is that prosecutors readily abet instances of law enforcements improper use of power by simply rubber -stamping them . In a February 5, 2011 Salt Lake Tribune op-ed, I disputed that perception. Iwrote:

The relationship between law enforcement and prosecutors is not as close as criticsclaim. Many officers I know wish they had such a cozy relationship with

prosecutors, as the officers scratch their heads in puzzlement when prosecutorsrefuse to prosecute on seeming technicalities after officers' "good arrests."

Municipal attorneys defend municipalities and officers against suits arising from justified law enforcement actions. In rare cases, they also prosecute lawenforcement actions that are unjustified. They could not do the latter effectively iftheir first instinct were merely to "rubber stamp" law enforcement decisions. . . .

Contrary to the persistent, prevalent public perception, the reason that prosecutorsso often find officers' use of firearms (and other actions) justified is not because

prosecutors merely "rubber stamp" law enforcement decisions; rather, it's becauseofficers almost invariably know the law and follow it, even when faced with the

prospect of making split-second, life-or-death decisions. 3 4

No less a luminary that well-known Utah criminal defense attorney Ronald J. (Ron) Yengichtook issue with my position that prosecutors dont simply rubber -stamp law enforcement decisions.In a February 22, 2011 letter to the editor, he said this:

I could not disagree more with Ken Gourdin's "Prosecutors don't simply rubber-stamp police decisions" (Opinion, Feb. 5). In my 36 years of practicing law anddefending many people who have reacted identically to police officers usingnondeadly and deadly force under virtually identical circumstances, the policeofficer is never charged with a crime and the citizen is forced to defend himself orherself in court.

When confronted with issues of self-defense, defense of a third party, or defense ofa habitation, the presumption of innocence should apply equally to both police andnon-police officers. The reality is that there is a super-presumption of innocencewhen it comes to police officers acting in the line of duty, and there is little similar

presumption for the citizen who is legitimately armed and reacts in an identicalfashion.


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Compare the sheer numbers of police officers who are cleared under these shootingcircumstances with the cases of others who are legitimately armed and act in self-defense. Prosecutors don't just rubber stamp police decisions to shoot, but also

accord police actions a greater presumption of legitimacy than regular citizens inthis culture that allows almost every citizen to carry a gun for self-defense. 5

In a March 19, 2011 letter to the editor of The Salt Lake Tribune , I responded to Mr. Yengich thus:

In "Favoring the police" (Forum, Feb. 22), Ron Yengich states that citizens usingdeadly force are treated differently than police when they react "in an identicalfashion." Just how identical two sets of circumstances are depends on how thinlyone slices the salami.

Yengich ignores important differences between officers and citizens: Police are far

better trained in the use of deadly force, they have more resources and, mostimportant, they are tasked by the state with initiating the administration of justiceto lawbreakers.

I am justified in using deadly force against an armed intruder who breaks into myhome obviously intent on harm. Once that intruder flees, the threat and my

justification cease. I am not then justified in shooting him regardless of whateverthreat he may pose to the general public.

Conversely, if I notify the police who later stop someone matching the description,he must obey officers' commands to stop, surrender any weapons and submit to

further investigation or arrest.

If he does not, officers may use deadly force because they reasonably believe thathe, having already threatened someone [with a weapon], poses a continuing danger.

If Yengich does not like that distinction, he's free to argue to change the law. 6

Not surprisingly (given his many years of successful practice as a fine defense attorney) on-linecomments both to his letter and to my response overwhelmingly favored Mr. Yengichs views. (Iwonder how many of my detractors views were colo red by the fact that they or a close friend orloved one have ever used Yengichs services?) His exalted status as a respected member of the

Bar notwithstanding however, the law says what the law says: civilians can use deadly force torepel an immediate threat of death or serious bodily injury, but they may not use that force oncethe threat ceases. Law enforcement officers, on the other hand, may use deadly force on that sameintruder if he refuses to stop, surrender his weapon, and submit to further investigation or to arrest

because they reasonably believe that he, having already threatened someone with a weapon, posesa continuing danger to the public at large.


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A rule of logic says that if a proposition is stated as an absolute, that proposition is disproved wheneven one instance is found which is contrary to the absolute. If some prosecutors critics hew tothe line that prosecutors always side with law enforcement, that position was undermined when

Salt Lake County District Attorney Sim Gill found that Salt Lake Police Officer Matt Giless useof deadly force while attempting to apprehend a juvenile fleeing in a vehicle was unjustified. 7 Feeling vindicated in the light of the withering criticism I had received, I wrote the following:

Some months ago, I was roundly excoriated and thoroughly trounced by onlineTribune commenters for daring to suggest that prosecutors do more than simplyrubber-stamp police decisions ("Prosecutors don't just rubber-stamp policedecisions," Opinion, Feb. 5).

Whether one agrees or disagrees with Salt Lake County District Attorney Sim Gill'sfinding that the recent shooting by Salt Lake City Police Officer Matt Giles of a

juvenile fleeing in a vehicle was not justified, his decision does prove my point.8

IV. Judges Nor is public distrust of the system limited to police and prosecutors. Accordingto the most suspicious segment of the public, not only do police routinely abuse the powerentrusted to them, and not only do prosecutors sim ply rubber -stamp such abuses, judges, too,are complicit in the systems malfunctioning because they routinely decline to pass judgment onthe improper actions of police and prosecutors.

Many critics cite the actions of U.S. District Judge Dee V. Benson for the federal District of Utahas an example of such judicial misconduct. Tim DeChristopher was arrested and charged with

placing fraudulent bids at an auction for oil and gas leases on parcels of land controlled by the

United States Bureau of Land Management. It was discovered that he had no intention of payingfor parcels he won and that he had artificially inflated the price paid for several parcels he did notultimately win. In a July 29, 2011 editorial, The Salt Lake Tribune criticized Judge Benson forrefusing to allow DeChristopher to use the defense of necessity based on the premise that he wastrying to prevent the dire environmental impacts of global warming which allegedly is caused byuse of fossil fuels, and for allegedly curtailing DeChristophers First Amendment constitutionalright to freedom of expression. 9

With regard to Judge Benson not allowing a necessity defense, while the facts of each case (andhence, judicial decisions based on what defenses to allow or to prohibit) are different, in an op-edI submitted (but which the Tribune declined to publish) I argued that in this case, Judge Benson

was right to prevent DeChristopher from using a necessity defense for several reasons. Briefly,these reasons are because global warming and its potential solutions are policy issues, not legalones; because any decision rendered by a court on global warming likely would have unforeseenadverse economic impacts; because the exact role of humans in global warming still is a matter ofconsiderable debate; because the necessity defense usually is only available to one with no otherviable alternatives, and DeChristopher had other alternatives through legislative and policychannels; and because the link between DeChristophers action and his stated objective was tootenuous to support a necessity defense.


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While the decision of what defenses to allow varies according to the facts of each case, myresponse to the criticism that Judge Benson allegedly curtailed DeChristophers First Amendment

rights is more universally applicable. That response was, in part:

As to the accusation that Benson sentenced DeChristopher for his words rather thanhis actions, it is true that DeChristopher, like all Americans, has a right to freespeech under the First Amendment [to the United States Constitution]. However,as officers of the court, one factor which judges and other sentencing authoritiesmust consider in determining an appropriate sentence is a convicted personslikelihood of reoffending.

Unsurprisingly, one factor that sentencing authorities must seriously consider indetermining whether a convicted person is likely to reoffend is what he himself has

said about his likelihood of reoffending. If sentencing authorities were to ignore aconvicted persons own statements about the matter, they would breach their dutiesas officers of the court.

DeChristopher was charged for his actions, not his words, the Tribune recentlyeditorialized, a distinction that would not escape a first -year law student, let alonea judge who, unlike Benson, would not choose to make a mockery of the FirstAmendment he is sworn to uphold. But DeChristopher has no First Amendmentright to proclaim, with impunity, that he would engage in similar conduct if givena chance, or to encourage others to do so. In that regard, at least, he is like any otheroffender. 10

DeChristopher's remorse or lack t hereof should be irrelevant, one on -line commenter to theTribune editorial said. Its truecontrary to the averments of so many ultra law -and-ordertypes that certainly neither all crime nor all criminals are created equal. However, regardless ofthe crime, remorse (or lack thereof) certainly is relevant. One certainly would never argue thatremorse is irrelevant where other, more serious crimes (say, murder or rape, for example) areconcerned. Whatever the crime or crimes involved, parole boards, judges, and prosecutorsroutinely make decisions about the length of time convicts are incarcerated (or about the length oftime they should be) based on how much remorse they demonstrate. The less remorse theydemonstrate, the greater the likelihood they will be incarcerated for longer periods of time. Thereason for this is that one of the aims of criminal sanctions (including incarceration) is

rehabilitation, and one indicator of the degree to which convicts have been rehabilitated is theirlevel of remorse. In determining DeChristophers sentence, Judge Benson was right to take intoaccount DeChristophers expressions of lack of regret, his statements that he would do the samething if confronted with similar circumstances in the future, and his encouragement of others toengage in similar behavior.

V. Juries If police and prosecutors as a general rule really are corrupt, and if judges arecomplicit in this corruption by their refusal to intervene, then it would seem that any mechanism


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which invites the participation of regular citizens in the justice system should be at least part of afitting and necessary antidote. Utah Supreme Court Justice Matthew B. Durrant explained the

process and importance of jury service in an April 28, 2012 op-ed in The Salt Lake Tribune . Justice

Durrants invitation to serve offers these concluding remarks on the importance of jury service:

Our legal system could not function without your service. We are very grateful toeach person who serves, and we have built an environment that supports andencourages jurors. We have spread the responsibility as broadly as possible tominimize the commitment of any one person. We have written jury instructions,which are summaries of the law, in plain and simple language. We try to be efficientso we do not waste your time. And our courthouses are modern and clean.

Have you been called for jury duty? If so, please serve. Someone very much likeyou has a case in Utah's courts. Your participation helps to ensure its fair and just

resolution.11

Alas, it would seem that while many citizens feel to criticize the alleged corruption of police and prosecutors and the alleged apathy of judges toward this corruption, they are too busy to becomea part of the solution by getting involved themselves. Lehi Justice Court Judge Paul C. Farr echoedJustice Durrants thoughts on the importance of jury service in a subsequent op-ed, also lamentingthe triviality of excuses proffered by those wishing to avoid such service when those excuses arecompared with the weight of what is at stake.

I was disheartened, but not surprised, by many of the comments [about UtahSepreme Court Justice Matthew B. Durrants op -ed]. Though I do not believe they

reflect the view of the majority, they are similar to comments I have often heard incourt and elsewhere: How can we be expected to serve on a jury when they pay$18.50 for the first day of service? How can I make rent and my car payment if Ihave to miss work for a mere $18.50? My job or other activities are just tooimportant for me to serve.

Jury service is a cornerstone of our judicial system and our democracy. The jurysystem safeguards individuals from potential government abuse. Individualscharged with a crime can be tried by a jury of their peers, rather than by a judge,who is, at the end of the day, a government employee.

This right was thought so important that it was included in the Bill of Rights andhas also been included in the constitutions of the several states. It is this right thatseparates our judicial system from much of the world. Yet, what good is this rightif individuals are unwilling to serve? 12

John Edwards, who has served on several juries, wrote an op-ed which was published in the May26, 2012 edition of the Tribune , summarizing his experience and echoing Justice Durrants andJudge Farrs thoughts on the importance of jury service. He concludes with this bit of advice: All


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jurors in [the cases on which they are called to serve] will have different opinions about the worthof the experience and the nature of justice. My advice is simple, if you are called and have a truehardship, ask to be released. If it is not an inconvenience, then serve .13

The triviality of excuses often proffered in efforts to escape jury duty was illustrated by onecommenter (Ray) to Edwards op -ed. No doubt employing a good deal of irony, he said, The

problem with jury duty is that it takes away from important and meaningful things like [thetelevision show] Jersey Shore , Facebook, Twitter, etc. Heaven forbid [that] a person [have] toactually contribute something to the American justice system[ ] rather [than] simply complain[ing]about it. 14

Adding to the Durrant- Farr chorus, and seeking to draw a parallel between peoples reluctance toserve on juries on the one hand and their corresponding lack of faith in the justice system on theother, I wrote the following in a letter to the editor which appeared in the Tribune on May 11,

2012:

Recently, two distinguished Utah judges encouraged citizens to serve on juries:Utah Supreme Court Chief Justice Matthew B. Durrant ("Been called to jury duty?"Opinion, April 28) and [Lehi City] Justice Court Judge Paul C. Farr (Jur y duty toomuch to ask? Opinion, May 8).

Ive written [before] . . . in defense of prosecutors ("Prosecutors dont simplyrubber-stamp police decisions," Opinion, Feb. 5, 2011).

Local defense attorney Ronald Yengich dissented in a letter to the editor ("Favoring

the police," Forum, Feb. 22, 2011). Online comments overwhelmingly favoredYengichs views.

Judges, too, have received their share of opprobrium, both from Tribune readers inonline comments and from The Tribune itself.

If Im wrong, and if, in fact, police do routinely misuse the power entrusted to themwhile prosecutors and judges routinely overlook abuses, it seems to me that the bestantidote for such overreaching is the constitutional guarantee afforded an accusedof a trial by his or her peers.

After all, who will stand up to allegedly corrupt police, prosecutors and judges if jurors and the juries on which they serve wont do it?

Its easier to complain than to be a part of the solution, I suppose. 15

VI. Conclusion: The Solution Requires More Than Simply Complaining Having outlinedthe problem of public distrust of the system and of its components, the question now presents itself,what, if anything, is to be done about it? I firmly believe that vigilance is the price of liberty, and


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that a certain distrust of government and its agents is healthy. After all, had it not been for suchdistrust there likely would have been no American Revolution, and we all still would be loyalBritish subjects today. Still, there comes a point at which a healthy distrust of government and its

agents devolves into a pathological form of psychosis in which seemingly every action taken by police, prosecutors, judges, and juries becomes a fitting subject, not only for critique, but for scornand derision. While they are far from perfect, our systems of government and justice are the bestsystems in the world. While there are notable exceptions, the vast majority of law enforcementofficers, prosecutors, judges and jurors are as worthy of our respect as is the system in which they

participate.

What I said in the Tribune about citizens reluctance to serve on juries is applicable to thecomplaints skeptics often lodge about the system as a whole: Its easier to complain than to be a

part of the solution. Critics often are quick to point out the alleged shortcomings of police, prosecutors, judges and jurors. But ask a critic when was the last time that he or she lodged a

formal complaint with an agency (or with the stat es division of Peace Officer Standards andTraining) about an officer; when was the last time that he or she lodged a formal complaint with a judge or with the Utah State Bar regarding a prosecutor; when was the last time he or she lodgeda formal complaint with the Utah Judicial Conduct Commission regarding alleged misconduct bya judge; or when was the last time he or she brought an allegation of juror misconduct to theattention of a judge, prosecutor, or defense attorney, and such questions likely will, as often as not,

be met with a prolonged silence in response.

Or, supposing that one actually has lodged a complaint with a law enforcement agency about anofficers conduct, with the Bar and/or with a judge regarding a prosecutor, with the JudicialConduct Commission regarding a judge, or with a judge, prosecutor, or defense attorney regarding

alleged juror misconduct, but nothing ever came of the complaint. A follow-up question could be,What evidence did you offer in support of your claim? and, lik ely as not, that question, too,would be met with a prolonged silence. Something more than a complainants mere say -so mustundergird the complaint: if not, its little wonder nothing ever came of it, yet the complainantsimply sees alleged inaction on the part of the party complained to as yet more evidence of thesystems dysfunction. And those who complain (both formally and informally) about incidentsinvolving criminal justice system actors, as well as those who complain that nothing was donedespite a formal complaint rarely (if ever) have all the facts.

What people often fail to understand is that just as Joe Citizen must be accorded certain rights,due process, and procedural safeguards when accused of wrongdoing, so must officers,

prosecutors, judges, and jurors be accorded those things when accused of wrongdoing. Meredissatisfaction with an outcome or interaction is insufficient to support a claim of wrongdoing.Without more than a bare allegation, a charge of wrongdoing is unlikely to be sustained. And the

person complained of must have his or her rights safeguarded, must receive due process, and must be protected by procedural safeguards. Given the frequency of interaction between these officialsand the public they are supposed to serve, complaints from the public are apt to be quite common(whether evidence exists to support them or not). Its at least as important to safeguard the rightsof public officials who are accused of wrongdoing as it is to safeguard the rights of members of


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the general public who are accused of wrongdoing. Too often, though, the attitude of too many inthe public regarding such cases is, Rights, due process, and procedural protections for me, but notfor thee.

But what if th ere is substance to support an allegation, but the complaint still doesnt result inaction being taken against an alleged wrongdoer? Is the public simply stuck with the wrongdoer and his or her action? No. But the solution of last resort is one which, in comparison to simplycomplaining about the status quo , is comparatively difficult. If I disagree with the actions of a lawenforcement agency, I can either vote out its head directly (if he or she was elected), or I can voteout the person (a mayor, usually) responsible for appointing him or her. Likewise, I can do thesame if I disagree with a prosecutors actions. If I disagree with the actions of a judge (includingaction he or she failed to take with respect to juror misconduct), that judge is subject to a retentionelection every four years. 16

In summary, too many of those who complain most vociferously about the systems dysfunctionare content to let their complaints be the end of the matter. When was the last time they wrotetheir local newspaper, representative, senator, mayor, city council member, police chief, or sheriff?When was the last time they contacted the agency responsible for investigating alleged wrongdoing

by an officer, administrator, prosecutor, judge or juror? When was the last time they actuallyserved on a jury when called rather than attempting to shirk that duty with a poor excuse? Whenwas the last time they attended a city council meeting or a legislative session? For that matter,when was the last time they simply bothered to vote? The First Amendment to the Constitution,along with its analog in the state Constitution, gives them the right to complain, formally orinformally, however much they wish to do so. But taking the time to marshal the evidencenecessary to support a complaint and to bring that complaint to the attention of the appropriate

authority will at least ensure that their voice is heard, not just by the public at large but by thosecharged with rectifying wrongdoing. If appropriate action isnt taken in that event, then perhapstheir voice deserves to stand out above the cacophonous din of those who do nothing more thancomplain. Until then, if the system is truly as broken as its critics say it is, we have only ourselvesto blame.

END NOTES

1 See Ken K. Gourdin (January 1, 2011), Officers sometimes forced to shoot armed suspects,The Salt Lake Tribune A11, available on line athttp://www.sltrib.com/sltrib/opinion/50953459-82/officers-suspect-shoot-force.html.csp,last accessed July 12, 2012.

2 Ken K. Gourdin (June 13, 1994), Police showed restraint (Letter to the editor), The Salt LakeTribune A8, copy in authors possession.


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3 Ken K. Gourdin (February 5, 2011), Prosecutors dont just rubber -stamp police decisions,

The Salt Lake Tribune A11, http://www.sltrib.com/sltrib/opinion/51184835-82/officers-law-prosecutors-enforcement.html.csp, last accessed July 25, 2012.

4 Its certainly true that one case is a completely inadequate sample upon which a completely -uninitiated, complete outsider safely can make (perhaps overly-) broad generalizationsabout a completely foreign justice system. Certainly, the United States is not without itsshare of overzealous prosecutors (e.g., Mike Nifong in the Duke University lacrossealleged rape case). However, for an example in which genuine rubber-stamping of police

by prosecutors seems certain to have occurred, one need look no further than the case ofAmanda Knox, the American studying abroad in Perugia, Italy who spent four years in anItalian prison after being convicted of killing her roommate before she was freed after

prevailing on appeal. See, e.g., Nathaniel Rich (June 27, 2 011), The Never[ -]ending Nightmare of Amanda Knox[:] How a naive kid from Seattle was coerced intoconfessing to a brutal murder and wound up sentenced to 26 years in an Italian jail ,

Rolling Stone , accessed on line at http://www.rollingstone.com/culture/news/the-neverending-nightmare-of-amanda-knox-20110627#ixzz21jI9vQD7, on July 26, 2012.For a description of Italian prosecutor Giuliano Mignini, see page three. On page four,Rich describes the lead prosecutors role in the Italian justice system thus: Mignini'sofficial title is public minister, a hybrid of detective and district attorney. This makesMignini less a prosecution lawyer than a Grand Inquisitor. He leads the investigation,giving directions to the police under his care, and serves as lead prosecutor during thetrial. This arrangement means that the police often find themselves under professionalobligation to look for evidence that supports the prosecutor's hypotheses. This isespecially true in high-profile cases, when there is enormous pressure to explain quicklywhat exactly happened. However frequently rubber -stamping might occur in theAmerican justice system, such frequency surely pales in comparison to its frequency insystems in which police and prosecutors essentially are one and the same.

5 Ronald J. Ron Yengich (February 22, 2011), Favoring the police (Letter to the editor), TheSalt Lake Tribune A14, http://www.sltrib.com/sltrib/opinion/51257813-82/police-defense-officers-presumption.html.csp, last accessed July 18, 2012.

6 Ken K. Gourdin (March 20, 2011) On deadly force (Letter to the editor), The Salt LakeTribune O2, http://www.sltrib.com/sltrib/opinion/51450925-82/deadly-force-police-officers.html.csp, last accessed July 18, 2012, bracketed phrase included in originalsubmission but deleted by editor.

7 See Sheena McFarland and Erin Alberty (July 19, 2011), West Valley officer -involvedshooting ruled unjustified, The Salt Lake Tribune ,http://www.sltrib.com/sltrib/news/52211596-78/cardon-shooting-officer-police.html.csp,last accessed July 12, 2012.

8 Ken K. Gourdin (August 3, 2011), Salt Lake police shooting (Letter to the editor), The Salt


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Lake Tribune , http://www.sltrib.com/sltrib/opinion/52262644-82/police-shooting-decisions-gill.html.csp, last accessed July 16, 2012.

9 Editorial (July 29, 2011), A sad day: Benson ruling unconscionable, The Salt Lake Tribune ,http://www.sltrib.com/sltrib/opinion/52280590-82/dechristopher-benson-government-

prison.html.csp, last accessed July 25, 2012.

10 Ken K. Gourdin (circa July 29, 2011), Tribune criticism of Judge Benson is unfair, submittedto (but declined for publication by) The Salt Lake Tribune , copy in authors possession(also available on line at http://www.greatgourdini.wordpress.com/2012/07/26/tribune-criticism-of-judge-benson-is-unfair, last accessed July 25, 2012).

11 Matthew B. Durrant (April 28, 2012), Been called to jury duty? The Salt Lake Tribune ,http://www.sltrib.com/sltrib/opinion/53988998-82/jury-service-person-jurors.html.csp,last accessed July 26, 2012.

12 Paul C. Farr, (May 8, 2012) Jury duty too much to ask? The Salt Lake Tribune ,http://www.sltrib.com/sltrib/opinion/54045146-82/jury-service-ask-duty.html.csp, lastaccessed July 26, 2012.

13 John Edwards (May 26, 2012), Tales from the jury box, The Salt Lake Tribune ,http://www.sltrib.com/sltrib/opinion/54163594-82/jury-judge-case-court.html.csp, lastaccessed July 31, 2012.

14 Id ., (see Rays comment to Edwardss op -ed below the article as it appears on line), lastaccessed July 31, 2012.

15 Ken K. Gourdin (May 11, 2012), If not juries, what? (Letter to the editor), The Salt LakeTribune , http://www.sltrib.com/sltrib/opinion/54071914-82/jury-police-sltrib-duty.html.csp, last accessed July 25, 2012.

16 Anyone who believes that such judicial retention elections are merely pro forma ought to ask(among others) former Utah Third District Judge Leslie Lewis. See Lisa Rosetta(November 8, 2006) Third district judge Leslie Lewis ousted, The Salt Lake Tribune ,http://www.archive.sltrib.com/printfriendly.php?id=4621589&itype=NGPSID, accessed

July 31, 2012. The Tribune even editorialized against Judge Lewiss retention. Seeeditorial (November 2, 2006), Vote No on retention of Judge Leslie Lewis, The Salt Lake Tribune , http://www.sltrib.com/opinion/ci_4586670, accessed July 31, 2012.

Documents

Is the System Really That Broken? Observations on Public Distrust & Potential Solutions