Washington Lawyer - October 2019 - 37

WORTH READING
seem to be all over the place, and whether, even
if the phenomenon is real, it poses any problem
that would be helped by special legal treatment.
Since the theory was first given credence in an
antitrust case in the Second Circuit in 2016,
defendants in other cases have already claimed
that the same platform theory should justify
conspiracies or restraints in sports leagues and
hospitals. Where will it stop?

figures like Elizabeth Warren and Bernie Sanders
argue for bigger and bolder antitrust enforcement
against large companies with the goal of reducing
their political influence. And looming trade disputes
with China appear to encourage U.S. government
engagement in industry planning and protection of
non-Chinese companies engaged in product areas
like 5G telecom. Such industry planning undermines traditional open competition goals.

What is Sagers's answer to the charge that Amazon
was a monopolist and a bully in the book publishing space? His answer is simple: If Amazon is a
monopolist that has violated the antitrust laws,
government enforcers should prosecute. The
answer is not countervailing violations of the antitrust laws through book publisher price fixing.

Sagers's book is not only brilliantly conceived but
also well timed, coming at a moment of great
uncertainty about the goals of antitrust law. Political

The book details more about the intellectual history
of antitrust; this brief review just scratches the
surface. But there is a further point worth noting:

Don Allen Resnikoff is a principal at Don Allen Resnikoff
Law LLP. Reach him at donresnikoff@donresnikofflaw.
com.

FIXING A BROKEN SYSTEM

Review by Ronald Goldfarb

gets it right." However, "the number of exonerations, the reasons for why they happen, and the
people to whom they happen reveal grotesque
and shameful problems with the way that we
administer justice in the United States."

Courtesy of Beacon Press

Bazelon specializes in one particular corner of the
criminal justice system dealing with wrongful convictions that have led to imprisonments totaling
"more than 14,750 years," according to the 2015
report of the National Registry of Exonerations.
That number has risen to 20,080. She details her
own cases and those of others, gleaned from the
records of exoneration projects around the United
States. Starting in 1992 when Barry Scheck and Peter
Neufeld began the Innocence Project in New York
City, which so far has freed 365 wrongfully convicted men and women, the movement has spread
to include more than 60 other projects. All have
revealed systemic problems with our criminal
justice system that should embarrass and outrage
the American public and its bars.

n the September 2019 issue of Washington Lawyer,
I reviewed a book by Emily Bazelon on breakdowns in the criminal justice system and the
movement to end mass incarceration. Another
compelling book on the flawed system, Rectify: The
Power of Restorative Justice After Wrongful Conviction,
comes from the author's sister, Lara Bazelon. This,
too, is disturbing for what it demonstrates about the
condition of our criminal justice system.
A professor at the University of San Francisco School
of Law, Lara Bazelon went to law school to become
a public defender and worked as a trial attorney in
the Office of the Federal Public Defender in Los
Angeles for seven years. She maintains that "in the
vast majority of cases, the criminal justice system

These cases are the tip of the iceberg, revealed only
after idealistic lawyers provided tremendous efforts
for little or no compensation to demonstrate what
lawyers can do when motivated. One study by two
Michigan law professors revealed that 4 percent of
those on death row were falsely accused. The
Federal Bureau of Justice Statistics reported that in
2015 there were 1.5 million people in U.S. prisons,
and that conservative analysis (1 percent) of these
cases suggests that "on any given day, 15,300
innocent people are sitting in prison, many on
death row," according to Bazelon.
Wrongful convictions result from several causes: false
testimony and outright lies, good-faith mistakes,
mistaken eyewitness testimony and identification,
and police and prosecutor misconduct. In 2015 the
National Registry of Exonerations released a

comprehensive report titled "The First 1,600
Exonerations," which found that 55 percent of the
first 1,600 exoneration cases involved false testimony.
These factors turn what is supposed to be a level
playing field into "a ski slope, with the state gliding to
victory by running over the defendant's right to a fair
trial." Moreover, wrongful behavior by police and
district attorneys, whether it's overzealousness, inadvertence, or negligence, is rarely punished.
Junk science (bite marks, hair ID, even DNA)
accounts for some of these wrongful convictions,
and outdated theories and folklore are accepted as
expert testimony. "Experts believe that 21,000 cases
- state and federal - used discredited science
and therefore must be reexamined," Bazelon writes.
False confessions, usually the result of police
coercion, also are revealed regularly. Another
systemic cause of these injustices is inadequate
counsel and poor defense work by assigned lawyers
who have little experience or lack resources to
defend their cases.
Bazelon forces us to look at the reality and injustices
of our criminal justice system, which in her words
"speak a brutal truth that should not be ignored,
both as a matter of justice and public policy."
Even with the extraordinary successes of the Lara
Bazelons and Barry Schecks of the world, there
are no happily-ever-after endings. Exonerees suffer
the nightmare of long and harsh imprisonments,
families are torn apart, and victims relive their worst
experiences. True, a rare, fortuitous savior appeared
and made a miracle happen for these relatively few
exonerees. The sad part of this story is that so many
comparable cases never get revealed.
Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work at
www.ronaldgoldfarb.com.
OCTOBER 2019

WASHINGTON LAWYER 37

http://www.ronaldgoldfarb.com

Washington Lawyer - October 2019

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