Judge Rakoff of the Southern District of New York talks about how judges tolerate or encourage injustice in an interview with Joel Cohen – author of “Broken Scales: Reflections on Injustice” – in the ABA Journal:
“I think too many courts have been too quick to leave unchallenged—and even unthought about—certain kinds of evidence that historically have been produced in criminal cases and that should have been subjected to greater scrutiny. For example, a great deal of forensic science has now come under scrutiny from the scientific community. In 2009, the National Academy of Sciences published a report that was highly critical of most forensic science other than DNA. And this included things well-regarded by many people—fingerprinting, hair analysis, bite-mark analysis, arson analysis and so forth. But before and even after that report, very few judges critically analyzed the forensic science that was being presented to them.”
The reasons, according to Judge Rakoff, are: high workloads that don’t leave time for adequate reflection; too many cases that are alike, leading judges to assume that the next case is just like the other 55 they’ve seen (Innocence Project exonerations are filled with examples of that—where judges were totally blind to suggestions that this particular defendant might be not guilty, or might not be as guilty as others in cases that the judge had seen before); and that so many judges are former prosecutors and so few are former defense counsel.