In this week’s “It’s Debatable” segment, Rick Rosen and Charles Moster debate whether the nation’s judicial system is fair and equitable. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.
As a lawyer of 36 years, it is unnerving to take the position that our judicial system is fundamentally inequitable and unfair. However, that has been my experience as a litigation attorney having appeared in state and federal court proceedings nationwide.
Over the course of my career, I have witnessed judges and lawyers who are exemplary and live up to the demands and expectations of their profession. Unfortunately, I have encountered judges who have displayed incredible bias, prejudice, and abuse of their position. You can add a bevy of lawyers who play dirty and will do anything to win including lie and cheat. Disgusting does not describe the feeling in the pit of my stomach.
Of course, this flies in the face of the civics propaganda we learned in grade school. Clients able to pay for and procure the best attorneys and/or those with prior social or professional relationships with sitting judges, typically come out on top. That is how the game is played.
The interplay of these toxic conditions can return a horrific result for clients in civil cases where their businesses or life savings are at stake. However, such consequences can be catastrophic for defendants who are unjustly treated in our criminal justice system.
In preparation for this debate, I reviewed a report compiled by the Sentencing Project entitled “Racial Disparity in Sentencing: A Review of the Literature.”. This is not a propaganda piece produced by a fringe organization, but a substantive objective report sponsored by the John D. and Catherine T. MacArthur Foundation and other reputable donors. Its conclusion based on review of sentencing outcomes across the country is shocking:
· Blacks and Latinos get harsher sentences than whites.
· Blacks and Latinos get harsher sentences when the crimes are committed against whites than other ethnic populations.
· Blacks and Latinos are more likely to get the death sentence.
This is not a surprise to minority populations. However, it is also rampant in all ethnic groups (depending on socio-economic status) and cries out for reform. I have a unique recommendation to follow.
In a speech to the British House of Commons in 1947, Winston Churchill stated that “it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time ….” The same can be said about the American judicial system—it’s not nearly perfect, but it is better than the alternatives.
For the past 49 years, I have been an attorney in private practice, government service, and legal academia. I recognize that our system of justice has the flaws Charles notes, and I do not wholly disagree with Charles’ assessment. Indeed, in 1977, four years after I graduated from law school, I left private practice in Florida for the armed forces because of some of the problems Charles’ describes.
For the next 26 years as an Army judge advocate, I followed the sage guidance of Major General (retired) Walter B. Huffman, former Texas Tech law school dean and Judge Advocate General of the Army, that when we get up in the morning, the only thing we have to do is “do the right thing.” Importantly, I found that those with whom I worked, the civilian lawyers against whom I litigated, and the military and civilian judges before whom I appeared also followed the same advice. And watching the judicial system as a law professor and an impartial observer, I firmly believe that most lawyers and judges exercise the same approach, demonstrating the highest level of honor and integrity. I recognize that biased judges and dishonest lawyers exist, but they constitute a small fraction of the legal community.
Charles’ most serious indictment against the American legal process is that it is fundamentally unfair to the poor and people of color. I will not deny this fact, and I look forward to learning about Charles’ proposed solution.
I have great respect for Professor Rosen but disagree with his conclusion as to the extent of the bias in our judicial system. He properly recognizes that “biased judges and dishonest lawyers exist” but improperly concludes that “they constitute a small fraction of the legal community”. Unfortunately, I believe the taint is pervasive particularly as it relates to the injustice inflicted on the poor and racial minorities as reflected in disparity report which I cited.
I have a logical and creative solution. Prior to articulating my recommendation, I want to qualify my background as both an attorney and software developer. In addition to my law firm, I am the founder of a computer software company which is involved in creating sophisticated artificial intelligence (AI) programs based on standard code, machine learning, and neural networks. I am thus conversant in both legal and technology matters.
Regarding civil cases, critical decisions affecting the admissibility of evidence and application of prior case law are often subject to overworked judges with insufficient preparation time, inexperience, bias, or worse. Almost every attorney I know has a judicial horror story of a case that went inexcusably bad for no reason other than a judge’s unfavorable disposition, overt bias, or the prejudicial influence of not being a member of a local court or city where the neighborhood attorneys are favored. Lawyers call that being “home cooked” and it happens all the time in small towns across America. A case can be lost simply because a judge wrongfully denies the admission of critical evidence. It happens all the time.
A computer program could be developed which applies the objective rules of evidence to any fact pattern in a uniform and unbiased way. Evidence would thus be inputted by attorneys on both sides of the aisle and an advance AI would determine what comes in our not. Once the evidence is presented, fact witnesses could testify in real time subject to evaluation and assessment by software with algorithms to adjudge relevance and credibility. Once the evidence is thus ascertained, the legal principles would be applied objectively to arrive at a just verdict as to liability and damage amount. The very notion of legal reliance on prior precedent to determine outcome which lawyers refer to as stare decisis would apply perfectly within the context of AI.
The use of Machine Intelligence would allow the AI to review and apply every case in Texas which has ever been decided on a particular issue in addition to treatises from experts. These sophisticated programs apply logic that approximates and exceeds human intelligence eliminating bias and error.
As an added protection to defendants, I would recommend that the use of these AI systems be voluntary but enforceable if written into contracts with the same force of arbitration provisions. Appellate rights could also be preserved should either party wish to take the matter before a human tribunal at a higher level.
I would similarly afford these AI protections to criminal defendants, but again on a voluntary basis and subject to appellate review.
The use of sophisticated AI would eliminate all bias and corruption within our judicial process. We must embrace existing technology and apply it to a flawed system.
Charles’ proposed solution to the inequities and corruption in the judicial is system is surprising: Artificial Intelligence (“AI”). Although I have owned a computer for nearly 40 years (starting with the Commodore 64), I admit that I don’t understand much about programming and AI. I do, however, watch the series “Picard” and recognize that AI (“Synthetics”) can go haywire even in the 24th century. More to the point, I know that in this century AI is dependent upon the knowledge, skills, and explicit and implicit biases of the programmers. Judge Herbert B. Dixon, Jr., observed in the American Bar Association’s Judges’ Journal: “The strengths and weaknesses of AI are that the software does exactly what it is programmed to do; a human must program the AI system at the outset and review the results produced by the AI system.”
Nevertheless, I believe Charles’ approach is ingenious. I would certainly endorse the use of AI as a tool to assist members of the judiciary, but not to take the place of judges. As Justice Oliver Wendell Holmes noted: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” In other words, judicial decision-making involves more than the simple application of black-letter legal principles; it requires judges to assess credibility and balance the interests and concerns of the parties and society.
Furthermore, Charles’ approach implicates very few cases. Between 90% to 95% of federal civil cases are settled by the parties—less than 1% actually go to trial; 90% of federal criminal defendants plead guilty—only 2% go to trial. In 2020, Texas courts tried by judge about 8% of major civil cases; juries adjudicated only 0.4%. Similarly, most serious criminal cases in Texas are resolved by guilty pleas, and only 5% are ever tried—1% by jury and 4% by judge alone. With respect to the specific AI-application Charles proposes, AI will play an insignificant role in addressing the racial and economic inequities present in the American judicial system. For example, it will certainly not reduce race-based sentencing disparities.
Finally, I believe that the ever-expanding use of AI may erode trust in the judiciary and the judicial system. People will no longer view the law as handed down by society, but as the result of mystifying equations and algorithms created by nameless programmers.