OJ, Missoula, and a newfound distaste for the adversarial legal system

Reading deeply about any subject you're not intimately familiar with can be terrifying. As someone who was constantly told I would make a good lawyer growing up, getting recognized as such — either as commonly understood or as a standard that might be used by the legal profession itself — now seems more insulting than anything. An entire class of people who ostensibly are paid to see that justice is served, seemingly inured to the idea of misrepresenting or outright lying about things simply because it’s better for whichever side they’re on.

My horror with the law started, as such things often do, with O.J. Simpson. Partially as a result of the recent resurgence of TV attention to the man (American Crime Story: The People v. O.J. Simpson, O.J.; Made in America) in part because I like the author but mostly because I wanted a better sense of a seminal moment in American history that I remembered almost exclusively as "a white SUV drives toward Mexico," I picked up Jeffrey Toobin's book, The Run of His Life, an exhaustive account of the murders and trial.

OJ probably did it

If you had asked me before I read the book, I probably would have told you OJ did it. I wouldn't have had any real evidence or clear notion why I thought this, but that would have been my answer. Given a few minutes to think about it, on a good day I might've dredged the civil suit out my memory, but the honest answer is the idea OJ was guilty just sat in my brain as a fact, the same as George Washington had weird hair and Ringo is on the slow side — a belief in fact without any real evidence whatsoever. Now, I would still think the same thing, only I would have a lot more evidence to back it up.

After reading OJ, I immediately tucked into Missoula: Rape and the Justice System In A College Town, by Jon Krakauer. Was this a good idea? Probably not. As you can infer from the subtitle, this is not really a book about the bad guys getting what's coming to them (though some of them do! Well, one of them does). The main thread tying the stories in Missoula is ineffectiveness on the part of most of the University of Montana, Missoula Police and Missoula District Attorney staff regarding sexual assault.

But the biggest impression both books left on me is just how awful lawyers really are. I don't even necessarily blame them as individuals. Much in the same way corporations do awful things in general because they have awful incentives (make more money, regardless), so too are attorneys largely hamstrung by their obligations: For prosecutors, it's to win (and not lose); for defense attorneys, it's to get their client as small a (or, ideally, zero) punishment as possible. Though the stated goal of the judicial system is "to find justice," the actual setup and structure is not conducive to achieving this.

Doing a good bad job

In Missoula, the deputy prosecutor in charge of the criminal trials (she set policy and in many instances decided which cases to prosecute) had an overwhelming tendency to not bring rape cases to trial. She also testified in the defense of an alleged rapist at a UM preliminary hearing, displaying a serious lack of understanding or severe misunderstanding of actual facts in the case.

Then, barely a month after quitting the district attorney's office, she joined the defense team of a UM quarterback accused of rape. During that trial, she claimed the victim was lying about the rape because she wanted the QB to be her boyfriend, and he didn't "cuddle" after the sex. The defense gave no explanation as to the bruises on the victim's chest (even after the QB admitted in court to holding her down with all his weight) or the text message she sent to a friend within 5 minutes of the rape saying, "Omg, I think I might have just gotten raped. he kept pushing and pushing and I said no but he wouldn’t listen…I just wanna cry…omg what do I do!”

And she did ... a good job? Her winning percentage as a deputy prosecutor was in the high 99s (possibly because she refused to take on so many sexual assaults, which rarely offer a high certainty of winning). As a (despicable) defense lawyer, she wrangled a "not guilty" verdict for her client.

Winners and losers

And who can speak against Johnny Cochran? The man was hired to get OJ off, and OJ got off. He did exactly as he was supposed to, both from the perspective of his client (who paid him) and the system. That he did so by implying/lying about the corruption of the LA police department, misrepresenting evidence and dismissing sound science isn't great, but there's no punishment for him doing so. If, as indeed he did, he won, it's great strategy.

People will do what they're incentivized to do. Those who are given good reason to act a certain way will almost always do so, absent a moral or personal reason against it. But it can hardly be considered fair to a lawyer to declare it a moral failing if he or she acts in a way entirely consistent with the rules of his or her profession.

Normally, the rules of a profession closely align with the moral judgments; a drunk surgeon in the operating room or a bridge engineer who accepts money in exchange for approving faulty plans are deemed to be both professionally and morally in the fault — the rules, written and unwritten, dovetail together. But in many arenas in modern life, the written rules (when they even exist) fail to live up to what a normal person, viewing the situation ex nihilo, would consider to be a minimum standard. The Supreme Court says that bribery isn't illegal unless you can tie a specific payment to a specific action taken by a politician — otherwise, it's free speech. Doctors who've been given money/gifts from drug companies prescribe medication differently than those who don't. Outcomes align with incentives, even subconsciously.

The easy solution, in all of these cases, is to consciously realign incentives. Politicians should be incentivized to not be (or appear to be) corrupt. Doctors should be incentivized to prescribe medication regardless of its manufacturer. Lawyers should be incentivized to help discover the truth and see that justice is served, not that their client (private or governmental) “wins.” Do this, and the accompanying elements (misrepresentations, acting, etc.) take care of themselves.

All of those things sound incredibly simple and yet impossible to achieve, because it seems difficult if not impossible either to alter current systems or change the internal calculation that results in a human taking an action. But if the incentives have been created to influence one outcome, they can be changed to induce another. It'd be hard work, sure, but it seems like that's the sort of thing that's worth the effort.