FQ: In your new book, Courts of Law Not Courts of Justice, you raise good questions. One question the reader can start to ask is: where do misperceptions come from? You confront the specific misperception that the American legal system is designed to deliver justice. Can you talk a little more about where this misperception comes from, who is responsible for correcting these misperceptions, and why is it important these misperceptions get corrected?
OBERER: This question goes to the heart of the reason I wrote the book. This book is designed to re-align the American public’s perception of the justice they expect from the justice the American legal system provides. It aims to explain that, while that justice is not always what they expect, there are substantial and important reasons for it – rights Americans probably would not want to forego. Nonetheless, most Americans are taught growing up, by friends, families, schools, and the culture at large, the justice means fairness. But we cannot have total fairness in the justice system while still protecting the plethora of rights of the accused that the Constitution affords. Re-aligning these expectations and providing the reasons for the need for this re-alignment would go a long way in quelling frustrations of Americans with the justice system.
FQ: You worked as a prosecutor for Baltimore, Maryland. Can you discuss a first-hand experience you have had when the legal system felt like it worked well and one when it felt like it didn’t work well?
OBERER: I had many experiences when I thought it worked well. But that usually had more to do with the high-quality judges than the systematic issues I saw. Judges were very careful to safeguard the rights of the accused before they would be sent to prison. A jury had just returned a guilty verdict in a case I prosecuted for a defendant charged with a drug crime. I told the judge I was asking for the maximum sentence to be imposed not only because of the conviction but also because the defendant was being held without bail on a separate murder charge awaiting trial. The judge quickly responded that he would not take that into account because the defendant was presumed innocent of that charge until convicted at a future trial.
Another example of this was when I was prosecuting an assault case. After finishing direct exam of the victim on the witness stand, I thanked the witness for being honest. The judge strongly admonished me for commenting on the veracity of the witness’s testimony right in front of the jury. I think that helped to safeguard the defendant’s rights because the jury got to see the prosecutor’s conduct being called into question.
An instance when I saw the system not work so well was when I was trying a case for conspiracy to distribute narcotics and the defense attorney pulled out a page of an aspirational best practices of police manual that was four hundred pages in length. It indicated detectives should try to fingerprint drugs when practical. That is not feasible in Baltimore City with the volume of drug crimes police uncover every day. The case was incredibly strong. There was no question the drugs were the defendant’s. But the jury returned a split-verdict, in part because of this where they claimed reasonable doubt.
FQ: What can be done to improve the relationship between citizens and the police?
OBERER: Much can be done. From the police side, limiting policies – like the Broken Windows Theory of law enforcement discussed in the book – that incentivize fishing expeditions, racial profiling, and harassment, would help regain trust. From the media, dialing back the anti-police rhetoric would help. From citizens, holding police accountable for missteps – like the decades of police brutality and subsequent citizen rioting discussed in the book – when warranted at police misconduct trials would help. Holding politicians accountable for ineffective police and community relationship policies would be helpful. And a societal and cultural appreciation for the work the vast majority of police do to help our society and the sacrifices they make would be helpful.
FQ: What can be done to help secure more resources to help the legal system work efficiently and effectively?
OBERER: The Constitution provides wide latitude to politicians – mayors and police chiefs – to implement heavy-handed policing policies. It serves as an outer limit of allowable conduct. But going to the edges of what is allowable has often created a distrust from members of the communities being policed. There will need to be policies implemented that balance the need to enforce the law with the needs of citizens to feel confident in their trust of those policing their communities. If these balanced policies are implemented and trust is regained and enhanced, funding and other resources will be more readily available to assist in administrating what is already a difficult system to administrate.
FQ: Your book mentions many of the more sensational criminal trials: the OJ Simpson trial, Florida v. Casey Anthony, etc. Can you describe a criminal procedure that was more commonplace? How does the current due process of law weigh on the minds and hearts of criminals, lawyers, judges, and citizens?
OBERER: Those cases involved publicity and lots of focus from many lawyers representing the accused. In the high volume run-of-the-mill case docket in many large cities, the accused are often represented by private lawyers with heavy caseloads or public defenders with even heavier caseloads. A routine drug case often turns on how much attention the case gets. If a lawyer representing the accused knows how to work the system, as described in the book, or a juror has had bad past interactions with the police, or a judge simply has too many cases in the docket for the day, those things can bode well for the defendant. Conversely, if a lawyer representing the accused is just learning the ropes, as many public defenders and private defense attorney are right out of law school, or the State’s Attorney’s Office has deemed a defendant as a priority case, things often do not bode as well for the defendant. It can be a coin toss, more than it should be in a justice system, as to the results for an individual charged with a crime, depending on these factors.
FQ: It’s true, audiences love a good legal thriller, and readers crave excellent writers on the legal scene; can you recommend authors who may be less well-known, however, who write about legal topics in ways that help inform non-lawyer citizens about the realities of law and justice?
OBERER: Here are some suggestions:
Books by Harvard University Law Professor Allan Dershowitz
Books by George Washington Law Professor Jonathan Turley
We Own This City: A True Story of Crime, Cops, and Corruption by Justin Fenton
The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal by Alexandra Natapoff
Homicide: A Year on the Killing Streets by David Simon
FQ: Speaking of great writers on courtroom topics, what are you working on as your next writing project? I see you are an accomplished athlete; do you write about tennis?
OBERER: I am hoping to work on some additional projects in the near future. I have not written about tennis, but if I did, it would be about how the game of tennis is a game of achievement between the two ears (i.e., the mind) rather than the two baselines on the court. The performance pressures of tennis, the ups and downs, the required resiliency and perseverance, among other things, I have found, made playing college tennis one of the most beneficial things to me off the court and in the game of life.
FQ: What would be a more useful theory than the Broken Windows theory to use as a basis for law enforcement policy; what theory or philosophy or approach might lend to more equitable law enforcement?
OBERER: On this issue, I would not say there is a one size fits all theory that would fix everything. Rather, as we have seen in Supreme Court cases like Terry v. Ohio and Illinois v. Wardlow, the Constitution allows policing policies to go extremely far before infringing on constitutional rights. That means that mayors and police chiefs need to work hard to develop appropriate policies for the citizens and communities they are policing – which vary greatly from one area to another. Using a sledgehammer to hit a fly is not always the best approach. While at times it could be needed, it would be better to exercise restraint in implementing policing policies within constitutional bounds rather than policing by going to the outer bounds of constitutional limits.
FQ: Your book contains many thought-provoking quotes from our most respected Supreme Court justices and legal minds. One such quote from Justice Sonia Sotomayor talks about building bridges instead of walls. Can you talk about a bridge that you hope your readers might start to feel empowered to build after reading your book?
OBERER: I think part of what Justice Sotomayor was speaking to was for Americans to focus more on what we have in common, though from many different backgrounds and cultures, building bridges, rather than focus on our own racial and cultural differences, building walls. A bridge I would like readers to feel empowered to build is to have a sense of hope rather than frustration with our justice system. I would like them to feel comfortable acknowledging the flaws in the American justice system while also understanding the reasons for these flaws and that ultimately, it may not be as dysfunctional as it looks.