God, Truth, and Justice: An Interview with Criminal Justice Attorney Matthew Martens

By: Elizabeth L’Arrivee

Furman University, February 27, 2024

 

This past February, the Tocqueville Center hosted an event exploring diverse facets of American conservatism. Panels featured public intellectuals David Brooks (The New York Times), Matthew Continetti (American Enterprise Institute), Helen Andrews (The American Conservative), and Matthew Martens (WilmerHale). We had a chance to sit down with Matthew Martens and get his perspective, as an attorney working within the highest levels of the American justice system, on some of the big-picture questions of concern to many conservatives in America today.

 

About Matthew Martens: Matthew Martens is a trial lawyer and partner at an international law firm in Washington, DC. He graduated first in his class both at the University of North Carolina School of Law and at Dallas Theological Seminary. Matt has spent the bulk of his more than 27-year legal career practicing criminal law as both a federal prosecutor and as a defense attorney. Early in his career, he served as a law clerk to Chief Justice William Rehnquist at the U.S. Supreme Court. Matt’s writing has appeared in The Wall Street Journal, The Washington Post, Providence, and other outlets, and he is the author of a recent book entitled, “Reforming Criminal Justice: A Christian Proposal,” which was reviewed by The Wall Street Journal and named The Gospel Coalition’s Book of the Year by a First-Time Author. Matt has spoken at schools across the country, including Stanford University, University of Chicago, University of Pennsylvania, Georgetown University, Columbia University, University of Michigan, Baylor University, University of Georgia, and many others.

 

Tocqueville Center:   

You have argued that plea bargains corrupt the justice system by obfuscating the truth of what actually happened. To generalize from that line of argument, what is your understanding, as a conservative, of the relation between truth and power when it comes to justice? 

 

Matthew Martens: 

Going from my book, Reforming Criminal Justice: A Christian Proposal, and trying to condense it, I approach that question as a question of religious faith. I believe that whatever power one human has over another is delegated, and in particular, delegated from God. An alternative view, which is the American view, is that consent of the governed is what gives one person authority over another. I don’t think that’s correct. 

 

I argue that authority is delegated from God and whatever authority I have to administer justice, to use physically coercive force in particular, is only that power that is divinely delegated. I then have to answer the question, what is that delegation of power? And to get to your question of the relationship to truth, our only delegation of power is to judge cases accurately. That might seem obvious, but it’s a complicated question because I think defining accuracy involves multiple components. And then you also have to ask the moral question, What error rate is morally tolerable? 

 

When I say “accurately,” I mean rightly describing what is right and what is wrong. And when I say “rightly describing,” I mean, as defined by a divine standard, and consistent, truthful, and consistent with the facts defining who violated the standard and who didn’t. So “truthfully” means both rightly defining right and wrong and rightly defining who did right and wrong. And it also means accurately defining the degree of right and wrong.  So proportionality and punishment are elements of accuracy, which is an element of truth.  

 

As I argued in my lecture here last night, we tell a lie both about what someone did and/or about the seriousness of what they did when we use plea bargains. So we either have them plead guilty to something less than what they did, or we have them plead guilty to something they didn’t do, and then we punish it either too severely or too leniently in a way that tells a lie about the seriousness of what we rightly found they did.  

 

So that is how I understand the relationship between power and truth. I have whatever power is delegated by the legal documents, the statutes. The Constitution gave me power as a government official when I was a government official. But I understand my only moral authority to use that power is that which is consistent with truth, as I’m trying to define it. 

 

There’s another part of this, which is, what is our moral tolerance for error, recognizing — rightly — that the only person who has that perfect truth, perfect accuracy, is the divine? What error rate am I morally entitled to accept as a governing official?  Oliver O’Donovan, a political theologian at Oxford, I think rightly said that most errors are just a result of human fallibility. We’re human, we’re not omniscient.  Some part of human error is nefarious, but in any event, we have to judge. Now, the nefarious part is never morally tolerable. But what is our tolerance for even just the error that’s the result of human fallibility? 

I answer that question by making an analogy to Just War Theory because I think that same question is at the heart of, for example, collateral damage to noncombatants. Nigel Bigger at Oxford argues, and I agree with him, that war is merely an extension in degree but not in kind of criminal justice. And so it’s right to understand the principles that apply to one also apply to the other. And what Bigger argues is that if you don’t use all reasonable, reasonably available means to avoid collateral damage, then you intend it, and then it’s in the nefarious category.  It’s not in the humans are fallible category. But if you’ve used all reasonably available means to avoid collateral damage in the prosecution of a just war, and collateral damage nonetheless occurs, you’re not morally culpable for that. And so I think that that same concept applies in criminal justice. 

 

To get back to my original point. If you’re prosecuting a just case, meaning you’ve rightly defined right and wrong, and this is a moral wrong that the state is entitled to act against — so it’s a just prosecution analogous to when it’s right to wage war — then the question becomes, how must I prosecute this crime justly? And I argue that what’s required is to use all reasonably available means to avoid collateral damage, to avoid convicting the innocent. And so it would be, to take a simple example, it is morally unacceptable to prosecute a criminal case using a lawyer prosecutor, but not providing a comparably adequate defense counsel. This is in some ways the theory articulated in the famous Supreme Court case of Gideon versus Wainwright. They said that in a world in which complicated rules govern the process, you run the risk of a system in which the defendant is found guilty not because he is guilty, but because he doesn’t know how to establish his innocence. I would argue that’s an instance, to use Just War Theory, in which you haven’t used all reasonably available means to avoid collateral damage.   

 

Tocqueville Center: 

Do you see a change in the sources or degree of fallibility in the legal system? Do you notice any shifts that you find concerning?   

 

Matthew Martens: 

What’s interesting is that since August of 1989, with the advent of forensic DNA technology, the University of Michigan Law School has been cataloging all the exonerations that have occurred, meaning people whose convictions were later overturned not because of legal error but because of factual innocence.  So as of two weeks ago, 3433 people were spending collectively 31,000 years in prison for crimes they didn’t commit, some of them up to 4 decades or more. 

 

What’s also interesting is you can filter the data in various ways, including all cases where factually innocent people were convicted as a result of government misconduct. 60% of wrongful convictions of exonerations in that database were the result of police or prosecutorial misconduct, meaning, intentional misconduct, most frequently the concealing of evidence in their possession of the defendant’s innocence. There’s a case decided the same year as Gideon that I mentioned, in 1963, called Brady versus Maryland, in which the Supreme Court for the first time ruled that as a constitutional matter, the police must hand over evidence of innocence in their files. So the prosecutor has to hand over evidence in the police files because, again, they made the argument that due process wouldn’t be a meaningful process, meaning a process in which the jury could find the facts, or the jury or the judge couldn’t make a truthful decision if evidence of innocence was withheld. If the evidence available wasn’t made available to them, they said it would be a failure of due process. 

 

Fifty years later, in 2013, a federal Court of Appeals judge appointed by Reagan said in a written opinion, “There is an epidemic of Brady violations abroad in the land.” There’s a great book on this by Duke law professor Brandon Garrett, in which he looked at the first 250 exonerations based on DNA.  These are people who we know, as a matter of scientific certainty, did not commit the crime, and setting aside misconduct, just go to the fallibility category. What’s driving that? Largely, an undue trust in human memory and in particular in the human ability to identify people, particularly cross-racially. So Garrett catalogs cases where people were convicted based on five eyewitnesses. All were wrong. They all came in and said, “That’s the guy.” And we know, due to DNA evidence, it’s not the guy. And many, many cases depend on fewer than five witnesses. Almost all of them have fewer than five. Many of these cases are based on one.  And I argue against, as a moral matter, one-witness cases in my book. 

 

But even in multiple eyewitness cases, 234 cases fall in that category. It’s probably the single most contributing factor that falls into the bucket of fallibility. We believe we remember things just like they happened, and in fact we don’t remember them just like they happened.  And we have a very poor ability to identify people who we did not know before the events in question. Moreover, jurors cannot figure out whether that witness is trustworthy. Jurors similarly have an undue belief in their ability to assess the reliability and credibility of the witness. They’re both wrong. 

 

Tocqueville Center:  

When problems regarding fallibility are that pervasive, how can we possibly correct this? Can education be a potential remedy? And since we are at Furman, a liberal arts institution, can a liberal arts education make us less fallible, especially given what you just said about our tendency as humans to be ignorant of our fallibility?  

 

Matthew Martens:  

I think prosecutors have an undue confidence in police officers, and even more, prosecutors have an undue confidence in their ability to actually figure out what happened. It’s not a lack of good faith, except in that category of cases where it’s malicious. But I think we need humility about humans and our abilities. I argue in my book that the divine mind and what I believe to be the Christian God has given us neither the authority nor the responsibility to address all wrongs. 

 

There’s a humility in understanding that it’s not all delegated to us, and that is mitigated by the Christian belief that it will all be addressed but it won’t all be addressed by us. My argument asks for humility about our role in executing earthly justice. I think this idea of humility about our capacity, and our role, is important in a liberal arts education, and whether you learn that through psychology classes that talk about human perception, through religion classes, or sociology classes, education in general can help us understand the limits of human capacity, even well-intentioned humans.  

 

Note: Interview has been edited for clarity and length. Views expressed are the respondent’s own and do not necessarily reflect the views of the Tocqueville Center or Furman University.