By Maurice Collada

In a matter of two weeks Chris Smith was wrongly convicted of two
crimes in two separate trials.  Both crimes involved attempted rape,
actual rape, robbery, and brutal assault. According to the justice
system, Mr. Smith was a sexually deviant monster. He was sentenced to
forty years for the crimes.  He maintained his innocence despite the
opportunity to receive parole earlier in return for admitting guilt
and taking responsibility.  He maintained his innocence despite being
offered to participate in a sexual predator rehabilitation program. He
endured decades of being in prison categorized as a rapist; the lowest
in the hierarchy of felonies within the prison culture. After
twenty-two years in prison, DNA evidence exonerated Mr. Smith.  The
question we must ask ourselves is how this happened. Our legal system
failed. Why did it fail? How did it fail?

The Innocence Project alone has helped to exonerate 200 other
individuals who have stories similar to Mr. Smith. That is over 200
failings. Why? How? Of those 200 exonerated individuals, most of them
filed direct appeals from their convictions but without the DNA
evidence 79% of them failed. Many of the 200 exonerated were initially
convicted based on eyewitness identification  Despite other evidence,
the eyewitness identification was enough for a twelve jurors left with
nothing else to put a man in prison, sometimes to await execution. In
Mr. Smith’s case the woman who identified him was the woman who was
raped.  She admitted to being very drunk and under the influence of
barbiturates on the night in question. These two aspects are vital to
our legal system: our appellate process and our evidentiary system.
Yet both failed in at least 200 cases to produce the correct outcome.
Why? How?

It is beyond the scope of this post to go into practical reforms for
our legal system to fix its shortcomings. However, some lessons might
be learned from one particular group’s take on our legal system:
artists.  In Law and Literature, a class taught at Fordham University
School of Law by Thane Rosenbaum, the student learns about the schism
between what the law cares about and what literature cares about. In
learning about this divide the law student hopefully learns that while
our legal system is better than it might have been during say the
Salem Witch Hunt Trials, it still fails on a number of fronts. In
reviewing the stories of the 200 exonerated individuals who spent
years in prison for crimes they did not commit, one realizes that
although literature often enjoys the freedom from not having to deal
with the strictures of reality or practicality, it may offer some
guidance for reform to ensure that we do not convict the innocent.

“To Kill a Mockingbird” is a prime example of convicting a man for a
crime he did not commit because the legal system limits the story one
can hear.  Tim Robinson was a nice black man in Maycomb county
Alabama.  He was an honest man and a charitable man. And he was all of
these despite living amongst people who thought of him as a lower
species than them. When he was accused of raping the Ewell girl, he
might have been convicted on the spot. He was doomed before trial not
because he did it, but because he was subject to a legal system that
protected against hearing the full, complete and subjective sides of
the story. He was subjected to a legal system that allowed for
personal biases to seep in while barring vital details from being
admitted for Robinson’s defense. It is true that “To Kill a
Mockingbird” is a commentary on much more than just our legal system,
but one must acknowledge the similarities between Mr. Robinson’s
conviction and that of Mr. Smith’s. Both were innocent men who were
convicted largely on eyewitness accounts that were wrong. In the book
Mr. Robinson was wrongly identified because father and daughter sought
to cover up scandalous details about their family life.  In Mr.
Smith’s case, the misidentification was due largely to intoxication
and the desire for finality and retribution. The former motives are
obviously more malicious and make for better drama. The latter motives
are much more understandable. However, both lead to the terrible
outcome of an innocent man going to prison. “To Kill a Mockingbird”
provides us with the background that makes the reader angry at the
outcome. It explores the political influence on the trial and
demonstrated irregularity in the stories of the accusers.  Granted it
can do so much more easily because it is fictional, but it provides an
important lesson.  If the legal system attempted to exclude the
political influence rather than the details of the story then possibly
the right outcome could be reached.

In short, if we are looking for the answers to how are legal system is
failing and why it is failing, maybe instead of looking to case
reporters and law reviews, we can look to literature. Maybe the author
and the artist could provide some better answers than the legal
scholar or the lawyer.

By: Mark G. Riley

Over the past few months, I have heard more and more references to
tort reform in the Washington healthcare debate. News sources seem to
pump out endless stories about how such reform is being considered by
Senator X and Representative Y as a possible way the Democrats might
appease the Republicans and pass a bipartisan bill.

At the heart of the issue, Republicans argue that healthcare costs
will decline if we cap non-economic damages in our civil tort system
(e.g., pain and suffering). Thinking logically, this makes sense.
Less money in payouts to patients will directly translate to savings
for the companies that insure the hospitals. Will this translate into
insurance companies lowering their rates? That’s where the line of
logic ends, and we enter into the world of the hypothetical. The
truth is, nobody really knows if capping damages will lower healthcare
costs for consumers.

In their clarion call for tort reform, Republicans accuse the
Democrats of opposing caps because of the campaign support they
receive from trial lawyers. Although this is partly true, the
Democrats do have valid and principled reasons for their opposition.
With that said, they habitually flounder in articulating these
reasons. The primary issue they often fail to identify is what tort
reform actually means to the people it will affect most — the sick,
the permanently injured, and the emotionally scarred.

It is estimated that approximately 100 thousand people die from
medical mistakes every year in the United States. Constituents need
to be reminded that behind every large damages award they read about
in the paper, there is a human being who has suffered a loss because
of another person’s action (or inaction for that matter).

Building on this point, it must be driven home that reforms such as
capping damages have the effect of making lawsuits a less attractive
option for malpractice victims. In Texas, for example, the
legislature capped non-economic damages at something around 150
thousand dollars. Subsequently, the number of malpractice lawsuits
dipped (interestingly, overall healthcare costs did not).

The likely reason for such a decline in the amount of claims filed is
that many patients in Texas now choose out-of-court settlements over
the high-risk, high-cost, and extremely time consuming process of
going to trial. After all, why would these patients take on the
financial risk of a trial if the maximum damages award they can
receive will not come close to what they need and deserve?

The fact that patients settling outside of court often receive less
money than they would in a jury trial is, of course, common knowledge
in this country. What is often forgotten, however, are the ways in
which settlements affect these patients in moral — not monetary –
ways. Democrats need to remind citizens of these moral elements, and
can do so citing three specific examples.

First, hospitals are often not forced to make an admission of guilt in
these settlements. This tends to deny patients the closure they need.
Second, hospitals tend to withhold exact details about what actually
happened to the patients in these settled cases (indeed, many claims
are filed by victims solely to find out more information about the
incident). This tends to deny patients access to the complete truth
of the matter. Third, there are some victims who desire a public
forum to discuss their painful stories, and without the financially
reasonable option of going to trial these patients are denied a proper
venue to do so. This tends to deny them the healing process they need
to move on with their lives.

Unfortunately, these moral elements of out-of-court settlements are
often absent from the Democrats’ tort reform discussions. This, in my
opinion, is to the detriment of their party and the debate in general.
With nearly one-third of Congress having attended law school, you
would think more members would channel these basic concepts from torts
class into their arguments. Perhaps they, like many of us, have
blocked 1L from their minds forever.