Joel Jacobsen

A disturbing story from England's Telegraph describes what happened when the police failed to complete the routine processing of evidence:

A serial sex attacker went undetected because police failed to send his DNA samples for analysis, a court has heard.

Mark Campbell, 38, is accused of stalking, raping and assaulting a series of women and teenage girls in Sussex since 1998.

It emerged that four years into his alleged campaign of sexual violence he could have been stopped when he was arrested for a "peeping tom" offence.

Sussex Police took the man's DNA in 2002 but he was not linked to the crimes because an "oversight" led to the swabs not being sent for examination.

Only during an official police review last September were the samples sent for analysis and Campbell was arrested the next month.

In the time that elapsed, Campbell is accused of raping two 15-year-old schoolgirls in his work van, and sexually assaulting several others by breaking into their homes, Chichester Crown Court heard.

It's hard not to think that the police failure was, as we lawyers like to say, a "but-for cause" of the later attacks: but for the failure to analyze the DNA samples, Campbell would most likely have been arrested much earlier, and he could hardly have raped those schoolgirls from a jail cell.

If once we accept that cops' failures can "cause" violent crime, is there any reason to absolve other agencies from responsibility?  For instance, prison officials can, through their negligence, fail to immobilize the dangerous.  Probation and parole officers, too, might fail to act on the obvious need to restrain such people.  If their incompetence leads to another's death or serious injury, is there any reason they shouldn't be held responsible?

Modern judges have little difficulty answering these questions.  Lawsuits against cops and prison officials for failing to protect citizens from criminals are no longer a novelty (though they're hard to win).  But are there any other governmental agencies involved in the enforcement of criminal law who might also be deemed responsible for the consequences of their failures?  Well, let's see.  There's prosecutors and public defenders.  (Warmer ...)  There's bailiffs, tipstaffs and courtroom security guards.  (Getting hot ...)  Who else is left except -?

There are two big differences between judges and other actors in the criminal justice system.  First, judges get to decide who can be sued and who can't.  So, naturally, judges can't.  (No one knows the inadequacies of the legal system better than judges, so they don't trust their fates to it.) 

Second, by definition a judge's ruling is correct at the time it is issued.  It remains correct unless and until it is reversed by another, higher court.  That's why it was lawful, even if unconstitutional, to imprison Martin Luther King.   It doesn't matter how mistaken, corrupt or hopelessly stupid a judge's ruling was.   At the time it was issued, the ruling was justice embodied.  And what could be more perverse than blaming a judge for doing justice?