THE
3 BODY
COURT
PROBLEM
Revue by Pierre Maertin
Published May 1, 2024
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“The innocent must stay in prison” Burke Butler of the Texas Defender Services. SCOTUS has denied relief for those already in prison even if proven innocent. “the reality is that many wrongfully convicted people are never relieved of their illegal convictions and remain imprisoned despite their innocence. “
After more than half a century of reform in the Judicial and Law Enforcement arena, most Americans do not really know what transpires in their state under the guise of competent and fair justice unless they run afoul of the law or are accused by a party of either civil or criminal misconduct. I was recently approached by the Glendora Police Department in early April and accused of being involved in car keying incidents, which was the cause for me to re-examine more closely the legal and justice system in California and Los Angeles County. The Glendora Police within days of showing me a video clip, proceeded to forward their case to the District Attorney’s office, without allowing me any opportunity to rebuke or respond to their charges except when they showed me the video and asked me if that was me or if I had keyed the vehicle.
In late April, after having in vain attempted to reach the District Attorney’s office of Los Angeles to provide some form of rationale or explanation (I was informed this can only be done if I have to appear before a judge, unless the case is dismissed by the DA upon review), news broke of the top District Attorney’s advisor, Diana Teran, herself an Assistant District Attorney, being charged with 11 felony counts, news that made headlines at The Los Angeles Times and that the charges were being filed by the California State Attorney General.
As a student of management systems, in graduate business school, we learned of organizational behavior, consumer psychology and tactics and strategies based on market trends and movements. When I went to work after I finished up grad school, I found myself an auditor at a large and diversified private sector multinational group with more than 50,000 employees in more than 21 different and distinct corporations operating worldwide under the corporate umbrella.
The group generated more than $100 billion dollars in annual sales back in the late 1990s – when I was with them. Today the group is part of an even larger conglomerate with nearly 100,000 employees and close to $210 billion dollars in annual sales.
As part of the audit department, we were taught and trained to follow specific audit procedures and an audit workflow model
“In a sense “guilty
before proven innocent
or above board
“Innocent before
proven guilty?
That is fine in theory…”
“Great ideals to be sure
but son, we live
in the real world
Wake Up Already!”
As part of the audit department, we were taught and trained to follow specific audit procedures and an audit workflow model where risks and exposures are analyzed, where a diligent and focused effort is made to uncover redundancy in management, inefficiency, disconnects, incompetence, corruption and fraud – all of which serve to endanger the corporation and expose it to a multitude of liabilities with the group’s consumer base, with the American Public and with regulatory agencies.
Although we were never instructed by the audit managers to approach an audit of a business unit or corporation in the group with the mindset that the group’s management is faulty or has committed violations of corporate directives, it was generally understood that for the audit team to go and dig into the company’s operations required the belief before the audit started that the group, the auditee, was fundamentally guilty of misconduct before anything was analyzed, tested and a report was generated for senior
management and the board. In a sense “guilty before proven innocent or above board” was required of the auditor as a motivation to look hard for problems beneath the surface.
It takes a great deal of effort to audit a business unit with thousands of employees, especially if there is a conscious effort to cover up errors, or shortcuts in transactional workflows or flaws in the management structure. Employees in same department or across departments can band up together, collude and frustrate the purpose and results of an audit.
There are all kind of reasons why business units flaunt or bend the rules – all of which are believed to be innocent or justifiable – or perhaps won’t affect the company – until a significant issue arises and then it becomes the blame game. Audits are designed to avoid these crises and to break up any significant and harmful patterns before they become a serious threat to business operations.
AT A MINIMUM THREE BIAS FACTORS
FOR THREE PLAYERS
EDUCATION
LOCATION
VOCATION
BUT THERE IS WAY MORE
THE THREE BODY PROBLEM
IN LAW ENFORCEMENT
AND THE JUSTICE JUST IS SYSTEM
A recent science-fiction series titled 3 Body Problem deals with three suns around which a planet orbits, one orbit around one sun is steady and predictable, the other orbit around two suns is violent and unstable. Over the span of millennia, being subjected to alternating shear and torsional forces, the planet breaks apart and ceases to exist. The science in the series is highly questionable, but the show is already tantalizing a large number of viewers and I thought the title lends itself nicely to the courtroom dynamics.
As a former private sector auditor of a publicly-traded Fortune 500 corporation, when I started to examine the courtroom structure in the lower circuit courts and the judicial system at the county level, I became uneasy at the separation of powers between the District Attorney, the sitting Judge and the Public Defender as unusual and lacking any kind of internal controls or clean separation of powers.
If I am a marketing analyst and I am about to conduct a research or study on a population sample using methodical statistical methods, one of the prerequisites is to design a study to eliminate skewness and bias in the collection of data and its analysis. Otherwise, the data is faulty and the conclusions arrived at are biased or seriously flawed. The research analyst employs a number of tactics to reduce couplings in data points, to reduce the dependence of data sets. If there is a high level of dependency between data sets, the data loses value and is essentially corrupt and meaningless.
To me when I took an initial look at the District Attorney, Judge and Public Defender, I noticed an inherent amount of bias in the three persons who play a pivotal role in creating judgement on the plaintiff or defendant. A courtroom is not a science lab where precision in results and mathematical modeling of data has very little room for error. A courtroom is not a lab where you can push the reset button and do the experiment over until you eliminate error and collect a set of data free from error.
THE AXIS OF “CO-OPERATION” – LET US SELL IT AS ADVERSIAL TEAMWORK
In a courtroom, the opinion of the Judge ultimately rules and as much as some in the legal profession would like us to think they are flawless robots, they are human and prone to all the failures of human reasoning. Even scientists in the field of Physics, engineers and mathematicians avoid and shun the label of “robots” because everyone can make errors, despite the rigor demanded in some fields. The opinion of one person is enshrined as “it is the opinion of this court“, as if it represents a broader evaluation and consensus of a panel.
When I look at the three pivotal individuals who hold extensive powers in a courtroom and can ruin a person’s life, I see a significant level of bias from a researcher point of view. If I were doing a statistical study, I would call out a bias in terms of education (all three are BASICALLY from a school of law or from the same school of thought), all three are biased by occupation (all three are practicing litigation law as opposed to corporate law or as opposed to advisors to investment banks on transactions), all three are biased by location (they all work in the same courthouse or courtroom), all three are biased by remuneration (they are all doctorates of jurisprudence and their income levels are comparable), all three are employed by and answer to the same employer, and all three may be biased by local culture or possibly even by party affiliation.
The near absolute immunity for judges is one of the traps in the system that promotes corruption – something that should be
unacceptable in modern society. It is a vestige of Medieval Europe where monarchies and nobility of the royal court wished to remove their opponents or undesireables in their kingdom without having the “law breaker or evil miscreant” summarily executed due to popularity with the peasants and the rank and file. Instead they would be charged with treason, insanity (or sorcery) or having broken “the absolute law of the King or Queen” and the ruling powers would rubber stamp a sham trial (“off to the dungeon with thee”).
The suggested separation of powers and reporting lines between these individuals is largely cosmetic and self-enforced. There is no active system that ensures this separation. Some lawyers in industry will claim the Commission of Judicial Performance as a lever against corrupt judges but you will also note the extent of immunity, almost absolute immunity, for judges in the performance of their duties.
For three individuals that are supposed to be separate persons or entities to ensure a fair and impartial courtroom, all three individuals fail on the basis of a very simple examination and on the axis of independent actors. There could be several and specific axes of co-dependence between these individuals but for now we will limit ourselves to the obvious and most basic factors. These axes, as you might have surmised, can lead to collusion, corruption, fraud and incompetence creeping into courtroom trials and courtroom judgements.
LAW ENFORCEMENT IS GUILTY OF THE SAME – INTERNAL AFFAIRS
We all have heard of the cases when law enforcement agents step outside the line of authority or abuse the law while carrying out their duties. After being subjected to more than 20 years of headlines decrying law enforcement abuses and corruption it is difficult to not look at the Police force or the legal system without instantly thinking, in your core, the system is flawed and corruption is the norm, not the exception.
Our law enforcement in the United States also more visibly suffers from lack of independent review, for when a problem arises within a department, Internal Affairs is invoked but in reality, Internal Affairs is not some federal agency with oversight and management control responsibilities. Instead, Internal Affairs is a label for a special team that is formed from within the ranks of the Police Department in question and they conduct a review of the case, incident or problem and issue a report. In audit terms, the auditee reviews themselves and give themselves a test. Internal Affairs is analogous, in a derisory manner, to a patient performing the operation on themselves.
“the National Registry of Exonerations reports that 575 people were so far, since 1989, found innocent based on DNA evidence.”
LET US CHECK A FEW FACTS
That is 574 court cases that slipped through the dragnet despite what must have been Herculean effort by authorities and agencies to stem the tide and prevent the cracks in the system from making it a farce to outside observers. That is 574 incremental cases where JUSTICE WENT ASTRAY AND FELL OF THE BENCH. These cases did not happen all at once or even in the same year for the legal system and authorities to pretend they were taken by surprise. There was plenty of reaction time between these cases and for the system to put in place preventative measures and yet, time and time again, innocent people were convicted of crimes they did not commit.
It cannot be, some of you are thinking, it is not that simple, we have professionals exerting a tremendous amount of judicial training and expertise that would mitigate these kind of scenarios and situations.
In some instances, the choir members are fortunate and the team plays beautiful symphonies without a hitch. Trouble is we can say the same thing of management in the private sector of corporations, yet audit reviews are not only necessary, they often are corrupted by the auditee and flustered and most often fail to identify the issues leading to regular scandals and massive headlines in the media, from product recalls, chemicals in our foods that passed muster with the FDA and other federal agencies, stark insane pollutions of our natural resources despite the best efforts of the Department of the Interior, the Department of Justice, and regular ongoing abuse of the financial markets and regulations despite the Securities and Exchange Commission, the Department of Justice and the Federal Trade Commission.
The first ever case of wrongly convicted murder was in 1993 and DNA testing was instrumental in exonerating Mr. Kirk Bloodsworth. Since his exoneration in 1993, 28 more murder convictions were exonerated with DNA testing.
We are only half-way through our first revue segment, The Three Body Court Problem, The Scales of Just This. More revue segments will follow. The second half will be published within the month.
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Eleven Felony Charges Pressed Against the Los Angeles Assistant District Attorney Diana Teran by the office of Rob Bonta, the California Attorney General on April 29, 2024
– The Los Angeles Times
The Innocence Protection Act was created because of Mr. Bloodsworth case in order to help pay for post-conviction testing, which is the absolute minimum the federal government is doing to correct a faulty, incompetent and corrupt system.
Yet as of this day, per the Death Penalty Information Center, “prisoners still face significant procedural hurdles, including resistance from prosecutors and judges, to obtaining post-conviction DNA testing.”
This is the kind of resistance an audit team encounters as they start to uncover all sort of issues during an audit and start the process of communicating the findings to both the audit management board and the senior management team of the business unit being audited.
Three or four things to keep in mind while wrapping your head around these figures:
The total number of wrongfully convicted individuals is possibly a hundred times larger, since there are very few instances in criminal cases where DNA testing can actually play a role in exonerating a person already judged guilty.
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