by George C. Thomas III. Ann Arbor: University of Michigan Press, 2008. 320pp.. Cloth. $29.95. ISBN: 9780472116188.

Reviewed by Caryl Lynn Segal, University of Texas at Arlington. Email:csegal [at]


As exonerations increase in criminal cases, legal scholars, political scientists, and attorneys seek preventative steps required to avert victimizing the innocent. In his introduction George C. Thomas asserts that the system is broken and in need of major reform: “The problem is not a discrete set of erroneous inputs, but a ‘systemic failure in criminal justice.’” Thomas looks to Supreme Court rulings that place procedural requirements above substantive justice as but one culprit.

Buttressing his argument is this quote from HERRERA v. COLLINS (1993, at 400): “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal . . . relief absent an independent [procedural] constitutional violation occurring in the underlying state criminal proceedings.”

CONE v. BELL will be heard during the 2008 Term and raises procedural obstacles to a habeas petition involving the withholding of BRADY information that could have resulted in a different verdict. The CONE opinion will clarify whether the procedural barriers currently in place will be lowered to any degree.

Angela Davis posits in ARBITRARY JUSTICE that innocent defendants are sacrificed because of prosecutorial misconduct, but she too believes the system needs major reform. Thomas also considers the heavy caseloads of both prosecutors and public defenders in the state system as factors in the number of wrongful convictions. He points out that the Cardozo Innocence Project found no wrongful convictions in the federal system with its lower caseloads for both prosecutors and defense counsel.

Thomas cogently dissects the problems occurring in the adversarial system in contrast to the European civil system. He avers that asking prosecutors to serve justice while being advocates creates tensions. Because prosecutorial career rewards focus primarily upon conviction rates, prosecutors who pursue justice are competitively disadvantaged.

Devoting two early chapters of the book to the history of the jury system, Thomas lays the foundation for the cultural importance of the right to trial by jury. He also illustrates its downsides with cases wherein racism and anti-Semitism created unjustified guilty verdicts.

The theme that underlies the entire book appears in Chapter Seven, when Thomas discusses the Court’s intervention in state criminal justice and the case that led the way. Although the Court would support the defendant’s claim of innocence in a racial case, it refused to [*1026] do likewise when presented with a final appeal in the Leo Frank case in 1914.

He next examines state’s rights and how they played a major role in criminal justice. The Warren Court’s MIRANDA (1966) decision illustrates one example of major procedural changes in criminal cases.

The Burger Court deliberated on the issue of ineffective assistance of counsel in WASHINGTON v STRICTLAND (1984). Thomas avers that the STRICTLAND Court’s reliance on procedure symbolizes the nearly insurmountable barriers faced by innocent defendants.

Although the Court indicates that a sufficiently high showing of actual innocence would make an execution unconstitutional, it has done nothing to make the threshold for establishing innocence less onerous. As a result of procedural barriers, appeals that cast considerable doubt on the guilt of a petitioner prove insufficient to support the claim of innocence.

Craig Bradley, author of THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION, is quoted at the end of Chapter Seven (p.166) as positing that the failure of the Court’s criminal procedure doctrine cannot solely be blamed on the Court: “[B]ecause of the nature of the judicial process, no Supreme Court, no matter how competent and regardless of its political leanings, could have done much better.” Thomas concurs with Bradley but points out that creating better criminal procedure rules rests with state and federal legislatures who consistently evade the task.

Congress created the American Uniform Code of Military Justice with the goal of a search for truth. Both federal and state systems are currently patchwork quilts of constitutional law, statutes and rules lacking a pattern for truth seeking.

Thomas does not absolve the Court of its obligation to be a friend of the innocent when he explains the Court’s failure to focus upon the substantive issues involving guilt as opposed to police misbehavior. Thomas uses HOUSE v. BELL (2006) and HERRERA (1993) to demonstrate his point forcefully.

Chapter Eight illustrates in detail how the French and the American military justice systems, with truth as their goal, are more likely to protect the innocent. Thomas takes the reader step by step into the criminal process, comparing the procedures. In multiple places Thomas stresses that convincing the jury and getting a victory overshadows discovering the truth in the American system.

In 1949 Jerome Frank observed that if a witness gives testimony that opposing counsel believes to be truthful but harmful to his/her client, the attorney will do anything and everything possible to destroy the witness’s credibility. In 1999 William Pizzi in his book, TRIALS WITHOUT TRUTH, wrote “our adversary system turns witnesses into weapons to be used against the other side.”

In the Civil law system, witnesses do not answer questions but rather narrate their story. The judge has the leading [*1027] role in a Civil trial, and both the prosecutor and the defense counsel are minor characters. Thomas contrasts this with the leading role played by prosecutors and defense counsel at an American trial.

Thomas’ concluding chapter represents 20% of the book and is page after page of suggested changes in our system to enable a goal of truth. What is noteworthy is that as he dissects each idea, Thomas discusses its value and the problems that would have to be overcome in order to make the point a reality. Both political scientists and legal professors will find this section worthy of study and consideration. Each and every point is a potential debate topic.

My personal favorite suggestion originates with the role of barrister in the British system. Thomas proposes that a pool of “criminal law specialists” be created. From this pool would be selected both prosecutors and defense counsel. Each specialist would at different times in different cases serve in both roles. Salaries for both would be equal, and they would be able to utilize the same expert witnesses. When the public defender is serving as prosecutor, it is decidedly more likely that discovery will be shared in a timely fashion. Thomas lists the many advantages because counsel are familiar with each side from past experience.

Since there are cases involving conspiracies, organized crime, and terrorism, requiring specialized knowledge and skill, Thomas suggests a Criminal Enterprise Task Force which would work exclusively in these discrete case categories. Again members of the task force would be called upon to work both sides of a case. Thomas believes that this is not a pipedream but could come into being at some future date.

As he did in Chapter Eight, where the entire process is broken down into component parts, Thomas suggests changes for all aspects of a criminal case. This legal scholar has created an insightful look at the system’s failures to protect the innocent in a relatively brief but highly engrossing book. THE SUPREME COURT ON TRIAL offers widespread appeal to those who recognize injustices but are stymied in finding a solution.

Bradley, Craig M. 1993. THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION. Philadelphia: University of Pennsylvania Press.

Davis, Angela J. 2007. ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR. New York: Oxford University Press.

Frank, Jerome. 1949. COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE. Princeton: Princeton University Press.


BRADY v. MARYLAND, 373 U.S. 83 (1963).

CONE v. BELL, 492 F3d 743 (6th Cir. 2007); cert. granted 6/23/2008. [*1028]

HERRERA v. COLLINS, 506 U.S. 390 (1993).

HOUSE v. BELL, 547 U.S. 518 (2006).

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

WASHINGTON v STRICTLAND, 466 U.S. 668 (1984).

© Copyright 2008 by the author, Caryl Lynn Segal.


The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants