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February 6, 2020

CAFE Insider Newsletter #58: The Uncertainty of a Verdict is Justice Working

Dear Reader,

The impeachment verdict was finally rendered in the Senate yesterday. But for the lone courageous dissenting Republican vote of Senator Mitt Romney, it was utterly anticlimactic. The result was a foregone conclusion. And that fact is yet another reminder of how the impeachment proceeding was nothing like a traditional courtroom trial.

You’ve heard me lecture on this point before, but as the trial finally came to a close and the vote tally was announced (52-48 on Article I, 53-47 on Article II), here was one final stark and surreal difference.

As I wrote in my book Doing Justice, part of what gives the participants and stakeholders in the justice system a sense of fairness about a trial is that the verdict is never certain. It is never a foregone conclusion, no matter how much evidence or lack thereof. Jurors have minds of their own and surprise is a feature of all fair modern criminal trials.

I’ve been thinking about this a lot in the context of the opposite dynamic at play in the Senate impeachment trial of Donald J. Trump; the verdict, virtually from the beginning, was certain. This certainty robbed the proceedings not only of drama, but also of a sense of fairness. It felt like preordained jury nullification.

This is how I described verdicts in Doing Justice:

The wait for a jury verdict in a criminal case is excruciating. Not just for the defendant, but for the prosecutor too, though obviously with much less life consequence. It is not only the defense lawyers who pace. It might seem odd, this prosecutorial angst, given that prosecutors traditionally enjoy an extremely high success rate. The rate of conviction at trial in my former office, for example, has always been just a few points shy of 100 percent.

The government lawyers are nonetheless nervous because they know a cardinal truth: once the case goes to twelve ordinary Americans, anything can happen. Those twelve inscrutable decision makers, about whom you have only the barest information, can base their judgment, the court’s legal instructions notwithstanding, on anything they wish. There is no guarantee of a particular result, and everyone has stories of surprise. I know I do.

Sometimes juries find fatal flaws in your case. Or they don’t believe—or simply despise—your cooperating witnesses. Or they hate the case, or they feel sympathy for the defendant, or they are charmed by the defense attorney. And they acquit. Or maybe the jurors favoring conviction are fainter of heart than those opposed, and as the days drag on, the former group just wants to get the hell out of there and they cave. Acquittal.

Or all the jurors stick to their guns, and at an impasse the jury hangs. Mistrial. And you have to go through the whole tortured process all over again, only the next time the defense lawyers know all your witnesses’ strengths and weaknesses, know all your best and worst arguments. Retrials are not usually better for the government. Many prosecutors secretly pray—justice or no justice—that above all things please, Lord, let the jury not hang, don’t make me have to do this again.

I have long marveled that anyone gets convicted of anything—given the stakes, the standard of proof, and the requirement of unanimity. Try getting twelve people to agree on what kind of pizza to order. Requiring unanimity in that context would cause riots.

So as the verdict approaches, the prosecutors are nervous and uncertain too. Some cases, to be sure, are very strong. But there is no sure thing.

It may be surprising to hear that the right-minded prosecutor does not feel joy at that moment of “Guilty.” Hours later there will be drinks, gratification, pats on the back, job well done.

Professional reputation intact. The moment of conviction is the most somber and sobering moment in civilian civic life. There is nothing else like it. I was present on the floor of the U.S. Senate for the confirmation of two Supreme Court justices as the roll was called, aye and nay ringing out as C-SPAN recorded history. That doesn’t come close to the mood I experienced at every jury verdict in a criminal case. It is grave and sad, even if just.

In many courtrooms in SDNY, the defense table is situated behind the prosecution’s so it’s impossible to witness the response of the person with the most at stake. At best you hear it, above the sound of your own beating heart, a sigh or a gasp or, most commonly, no sound at all.

Sometimes the prosecutors move for remand on the spot, and the defendant leaves the courtroom through the side door, in cuffs, straight into lockup.

That is not always true in the gallery. The spouse may cry; the child may wail. A defendant now knows his fate. The presumption of innocence is no more.

Particular verdicts are expected when cases are very strong or very weak. Facts matter, and there is a feeling of probability on the part of the lawyers at least. But probability is not certainty, and the uncertainty is always palpable. That uncertainty is proof that the thing is not fixed, not rigged. It gives the trial result credibility, just as uncertainty about elections lends credibility to democracy.

On the eve of the 2016 U.S. presidential sweepstakes, famed chess champion, human rights activist, and self-exiled Russian Garry Kasparov posted this on social media: “That nervous feeling you have about tomorrow, Americans? That’s democracy working. Unpredictable elections, what a luxury!” After Trump won the presidency the next day, against all odds, Kasparov later offered this optimistic observation: “Trump’s election is greatest proof of democracy. You don’t know the results in advance!”

The same should be said about verdicts in criminal cases. That nervous feeling you have when the jury comes out, prosecutors? That is justice working. Unpredictable verdicts, what a luxury. 

This, of course, was a luxury missing from the just-concluded Senate impeachment trial. And so it’s impossible to say it felt like justice.

My best,

Preet

THE FACIAL RECOGNITION FIGHT

Output of an Artificial Intelligence system from Google Vision, performing Facial Recognition on a photograph of a man, with facial features identified and facial bounding boxes present, San Ramon, California, November 22, 2019. (Photo by Smith Collection/Gado/Getty Images)

What if law enforcement had access to a tool that could instantly identify a person by comparing their picture to a database of over three billion online images?

Last month, the New York Times ignited a firestorm when it published a piece about a mysterious artificial intelligence company, Clearview AI, that has developed a product that does just that.

While the Times piece may have been shocking to many, the use of facial recognition technology is already widespread, used by both local law enforcement and federal agencies. According to the ACLU, “The FBI is currently collecting data about our faces, irises, walking patterns, and voices, permitting the government to pervasively identify, track, and monitor us. The agency can match or request a match of our faces against at least 640 million images of adults living in the U.S.”

The debate over the legality of collecting biometric data—and specifically, its use by law enforcement—has been waged for over decade. But as artificial intelligence has progressed, the backlash has reached a fever pitch.

In the past year, cities like San Francisco, Oakland, and Somerville have banned police use of facial recognition technology. Just last week, a similar ban bill was introduced in New York by State Senator Brad Hoylman. The bill, S7572, states:

Studies of currently available biometric surveillance technology demonstrate that such technology’s consistency and accuracy can vary widely based on age, gender, sex, race, and other factors, and has been found to be particularly inaccurate when used on women, young people, and people of color.

These accuracy concerns are particularly troubling in the context of this technology’s ongoing and increasing use by law enforcement.

These concerns are echoed by the ACLU, which has filed a lawsuit asking the federal district court in Massachusetts to order the Justice Department to comply with its Freedom of Information Act request for all records concerning their use of face recognition technology. The Complaint states:

[T]here are serious questions about the reliability of biometric identification technologies (including and particularly with respect to accurately identifying people of color). These technologies therefore elevate the risk that an innocent person will falsely be associated with criminal activity. . . [T]he public’s interest in the release of the requested information is particularly high in light of the public’s need to understand and participate in ongoing legislative activity.

Members of the law enforcement community have been quick to protect what they believe is a vital tool. This week, Dermot Shea, New York City’s Police Commissioner, said, “If we lost [facial recognition] it would be a significant blow to how we fight crime in New York City.” His department has also made clear that it is does not see facial recognition as a violation of due process, saying that the NYPD does “not engage in mass or random collection of facial records from NYPD camera systems, the internet, or social media…A facial recognition match is solely a lead—no one has ever been arrested solely on the basis of a computer match, no matter how compelling.”

The facial recognition debate poses a larger question: How do we conceive of privacy in a world where so much of our lives is indiscriminately shared on social media? Can we reasonably expect that the information we share will not be used by companies, or, indeed, the police?

In an op-ed, Bill Bratton, who served as Commissioner of police departments in New York, Boston, and Los Angeles, framed the debate in the context of personal responsibility:

Who is responsible for individual privacy? Has the person who puts thousands of selfies out there on publicly accessible internet platforms given up some part of their privacy? Or, is the problem with Google or a company like Clearview AI picking up those pictures to make them searchable? For now at least, personal responsibility seems to only play a minor role in this conversation.

For their part, technology companies like Google and Twitter have recently issued cease and desist letters to Clearview AI to prevent third-party use of images on their platforms—though these companies have had their own share of controversies arising out of their use of facial recognition technology.

It’s clear that in a rapidly changing world, new rules must be written that balance the dual interests of privacy and safety. But how do we define privacy in an era of social media and the internet of things? Has our understanding of privacy itself become outdated—and to what extent are we complicit in that shift?

Let us know your thoughts by writing to us at [email protected], or reply to this email.

THIS WEEK ON STAY TUNED

John Dickerson is this week’s guest on Stay Tuned. He is a correspondent for 60 Minutes and a contributing editor to The Atlantic. He’s also a co-host of Slate’s “Political Gabfest” and “Whistlestop” podcasts.

Dickerson’s reporting often contextualizes current events in America’s broader political history. Discussing the future of the Iowa Caucuses, Dickerson explains why structural political reform can be difficult to carry out in America:

The American system needs to be reformed and you can pick wherever you want to do it, whether it’s campaign finance or the way we do elections or our obsessive focus on the presidency…One of the troubles with reform in American life is that people always imagine the worst implementation of reform when you have a conversation about it. And so, even if it’s a bad idea, you never get the fruits of the discussion about the idea.

Listen to today’s episodethe bonus, and share your thoughts with us by writing a review or emailing us at [email protected].

And if you haven’t already, listen to this week’s special national security edition of Stay Tuned, featuring former Homeland Security and Counterterrorism Advisors to the President – Lisa Monaco and Ken Wainstein, who debrief us on the Coronavirus, Encryption, FISA, and more.

FOLLOW

Senator Mitt Romney was the single Republican to vote in favor of convicting Trump on abuse of power charge in yesterday’s impeachment vote. Follow him @SenatorRomney.

THIS WEEK ON CAFE INSIDER

If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “The Verdict” and follow along with this transcript.

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That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

—The CAFE Team: Tamara Sepper, Sam Ozer-Staton, Julia Doyle, Calvin Lord, David Kurlander, David Tatasciore, and Matthew Billy.

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