Feelings of the average law enforcement official, district attorney, or juror notwithstanding, it does not follow from this that everyone charged with a crime is guilty of having committed the crime — or even that most are. And remember, Fresno County has a large number of people who are acquitted at trial, even though many people in this area seem to think that “if he is sitting there [in court], he must’ve done something.”

If it were true that everyone arrested was guilty, we’d have absolutely no need of trials.  And, again refusing to take into account the feelings of the average law enforcement official, district attorney, or juror, trials are a necessary component of any system that aims at justice.

Ironically, I have found that it’s often easier to defend guilty people than it is to defend innocent people.  For one thing, guilty people are typically less angry or upset about the fact that there is no justice in our courtrooms these days.  They almost seem to expect it.  But get an innocent person charged with a couple of strikes with the prosecutor offering a plea bargain of a non-strike felony and you’ve got a real problem.

Think about it.  Innocent people do get convicted.  How many stories have you heard about people being exonerated after some incredibly long period of years in prison?  There are hundreds of such stories.  And those are just the innocent people who we later find out were wrongly convicted; what about the ones for which innocence is never discovered?

So you can’t pretend there’s no risk.  You can’t say to yourself, “Well, if the person is innocent, then you’ll probably win at trial.”  It all depends on the evidence.  And if Americans have learned anything about the concept of “spin” in the last couple decades, I hope we can at least recognize that the evidence is going to depend in large part on who is doing the collecting of it.  Again, that’s why we have trials.  We want the evidence subjected to the crucible of adversarial testing.

So if you have an innocent client in the scenario I outlined above, you have a real difficulty.  A guilty client being offered a non-strike felony in place of the right to take a chance on two strikes at trial will probably not give you too much grief over your recommendation that he accept the offer.  An innocent person is going to be wailing and gnashing his or her teeth.  They’re going to want to fight it all the way if they can.

And if you do convince them of the serious risks ahead and as a result, they accept the deal, then you may have trouble sleeping for awhile.

What does this say about our system?  I’m not exactly sure.  I mean, it’s not like I didn’t already know the system had problems.

What am I trying to say by writing about this?  I’m not exactly sure about that, either.  However, I did have a situation recently in which I believed my client was almost certainly innocent.  Almost certainly.  And we were faced with exactly the kind of dilemma I outlined above.  (In fact, it was a little worse, but I don’t want to write the details here.)  My client could fight, take his chances and probably would have ended up convicted, based on the evidence and police reports.  But, as I said, he was almost certainly innocent.

In the end, he and his family decided that it was better to take the offer than to risk the alternative.

I’ve wondered since then if I shouldn’t have pushed them to reject the offer.  But the truth is that if they followed that advice and he was convicted, I would have probably had even more trouble sleeping than I do now.

There are really only two things I can hope writing about this will accomplish:

1. That people who might one day serve on a jury will read this and remember that “defendants” are people who have been accused of a crime, but that being accused doesn’t mean they committed the crime — that’s why we have trials!
2. That maybe there will be some discussion, or at least thinking, about this kind of situation among people who read this note.

I look forward to hearing from you.

More often what I see is people who become uncomfortable after I tell them to stop talking to others.  In particular, I want them to stop talking to the police.  That’s when I tend to hear, “But won’t I look guilty?”

And my response to them is the same as Brian’s response to people who think they’ll look guilty just by hiring an attorney: “No.  You already look guilty.”

And that’s just one of the reasons innocent people need lawyers.

The main page of my website contains a link to Officer George Bruch of the Virginia Beach police department, talking about why people should not talk to the police.  As he notes near the beginning of his lecture, “People are inherently honest.  And that’s their biggest downfall.”

Officer Bruch appears to be like most people: inherently honest.  Officer Bruch states,

I have my job.  My job is to develop probable cause.  Develop a good case.  A great case is a case with a confession.  Get it to the commonwealth’s attorney, so that they can prosecute the case with little, if any, effort.

And he goes on to point out,

The defense attorney’s job, is to hope that they get to their client before I do, and make sure they don’t talk to me.  No matter what.

Now this has nothing to do with whether or not a person is innocent.  As Officer Bruch also admits,

Say you wanted to go into a boxing match.  Hundred dollars if you win.  You’ve never boxed before.  You have to face somebody who is an Olympic boxer.  You’re going to lose. If you’re going to face somebody who has been interviewing people for, in my case, 28 years, you’re going to lose.

Officer Bruch goes on to indicate that this is different if someone is actually really innocent.  But he points out that he tries not to bring innocent people into the interrogation room.  To stress that point, he even says it again at the end of his lecture, after he’s told you some of the ways he and other officers trick people into saying (and doing) things that help get them convicted.

Now what’s the problem with that scenario?  What does that tell us?  The first thing it tells us is that if the police want to talk to you — if they’ve already decided that they want to question you, or, as Officer Bruch says, bring you into the interview room — they’ve already decided you are not innocent.  And, remember, their job is to “develop probable cause.”

This is an interesting choice of wording.  Officer Bruch didn’t say that his job was to prove probable cause existed.  (In fairness, he would probably respond that that is what he meant, even though it’s not what he said.)  The officer’s job, having already decided that you’re guilty — remember, he wouldn’t have brought you in for questioning if he didn’t already think you were guilty — is to develop, or create, probable cause.  His job is to make the prosecutor’s job easy.

The second thing Officer Bruch’s words tell us is that the police will try to trick you into giving them stuff they can use to get a conviction; they’ll even lie to you.  I’m not going to go into all the “tricks of the trade” that Officer Bruch describes.  You can watch the video for that.  (The video is only 21 minutes long.)

What’s important to notice about this, what’s important to remember, is Officer Bruch’s analogy to the amateur versus professional boxer.  Even if you happen to be a person who gets to talk to the police a lot, don’t make the mistake of thinking you can outsmart them in an interview.  By the time an officer reaches the point where he’s interviewing you, he’s received specialized training in how to interview people. And he’s decided you’re guilty, or he wouldn’t be “interviewing” you.  (Officer Bruch also points out how they prefer the term “interview” when they really mean “interrogation,” because people who are “interviewed” are more willing to talk: “We don’t do interrogations.  That’s a bad, mean, nazi-kind of word.”)

In addition, an officer knows how to write a report to make even innocent statements appear to be “confessions.”  The story I like to tell clients when I’m explaining why they have to stop talking goes like this,

A kid is in a hurry; he’s late for work.  So he’s running down the street just as fast as he can.  He tears around the corner and accidentally runs into a woman with a bag of groceries.  He’s going so fast, she’s knocked to the ground.  Groceries go everywhere.  Her purse comes off her shoulder and falls open.

The kid apologizes profusely.  He’s so sorry.  It was a complete accident.  He helps the woman to her feet and begins picking up her groceries, stuffing things into the bag as fast as he can.  He grabs her purse and begins putting the contents back into it before handing it back to her.  When he’s done, he asks if she’s alright.  She says that she is, and he takes off running.  After all, now he’s really late for work.

Neither the woman nor the kid realized it, but when her purse fell open, her wallet went down into the sewer drain.  Later, the woman realizes her wallet is gone.  She isn’t sure whether the kid stole her wallet — he seemed so nice! — but her husband insists she call the police.

Somehow the officer locates the kid and questions him.  “Tell me what happened,” he says.  The kid explains how he was in a hurry because he was late for work, ran around the corner too fast, didn’t realize the woman was there, accidentally knocked her down, stopped to pick up her things and gave them back to her.  “Did you give back her wallet?,” the officer asks.  “I don’t remember,” the kid replies.  He’s an honest kid.  And he is honestly innocent.  (The wallet went down the storm drain, remember?)  “So you might not have given her wallet back?”  “I don’t remember seeing her wallet,” the kid says. “And you ran away after?,” asks the officer.  “I asked if she was okay.  When she said she was, I took off because I was late for work.”

Good enough.  The innocent kid talked to the police.  He didn’t confess to any crimes.  He was honest.  He just answered the questions the best he could.  And he did not say that he stole the wallet or did anything else wrong.

Here’s what the police report says,

The suspect admitted to assaulting the victim and knocking her to the ground.  Suspect confessed that he ran away and did not return her wallet.

And that’s how the officer will testify.  That’s what a jury will hear.

What about all that other stuff?  And the interview was tape-recorded, wasn’t it?  Here’s Officer Bruch again:

I’ll take it [the interview] off the tape and I’ll have my secretary put it to paper.  Immediately afterwards, I’ll take that tape and I’ll scan it over my magnet, throw it in my box, so I can use it again.  I do not keep the tape.  It is not evidence.  It’s not required to be evidence.  If it’s there for the court, it’s just extra.  You don’t have to have that….  You’ve got the guy [the police officer] right there to tell you what happened.

Only you don’t.  You have the guy right there to tell you what he says happened.  And in the case of our hurried kid, trying not to lose his job, thinking he’s innocent…you have “a confession.”  When the prosecutor asks the officer if the kid told him he returned the wallet, the officer will truthfully testify, “He did not say that.”

And that’s why innocent people need lawyers.

If you’re going to go up against a professional boxer, you should hire your own professional boxer to stand in for you.

Now stop talking.  And call me.

Has the Governor gone soft on crime?

Not infrequently, a case will come to trial which is, shall we say, “lacking in evidence or witnesses.”  When this happens, the prosecution has numerous other “tools” to assist them in making up for the missing evidence.

More often than not, the “tool” will be another prisoner.  A “jailhouse snitch.”

Jailhouse snitches are always, of course, acting out of the goodness of their hearts.  Their compassion for “victims” and their sense of duty and justice is so strong that you can’t help but wonder how they ended up in jail in the first place.  Their trustworthiness, gregariousness, charm, and suaveness are so apparent that every real criminal who comes near them is compelled to confess their darkest secrets.

So it is perhaps surprising for sane people to realize that,

In more than 15% of cases of wrongful conviction overturned by DNA testing, an informant or jailhouse snitch testified against the defendant. Often, statements from people with incentives to testify – particularly incentives that are not disclosed to the jury – are the central evidence in convicting an innocent person.  (“Understand the Causes: Informants/Snitches”, Innocence Project.)

Fortunately for California, Governor Schwarzenegger is a maverick who refuses to be counted among the sane.

Hotly debated legislation by state Sen. Gloria Romero (D-Los Angeles) to prohibit convictions based on the uncorroborated testimony of a jailhouse informant also fell by the wayside. Schwarzenegger explained his veto of SB 1589 by saying that the testimony of in-custody informants is rarely used and that current laws “provide adequate safeguards against its misuse.” (Nancy Vogel, “Schwarzenegger vetoes cosmetic surgery bill” (September 29, 2008) Los Angeles Times.)

Assuming the Governor is correct, this shows just how great the need for SB 1589 is.

Think about it.  According to the Governor, prosecutors seldom secure succor from such snitches.  If that’s true, then SB 1589 would not impact very many cases.  On the other hand, as noted, these “rare” cases result in a substantial number of false convictions.

Governor Schwarzenegger disingenuously states that,

[T]he evaluation of the credibliity of a witness has always been uniquely within the province of the jury.  This bill would usurp the juries’ function by fixing in statute a rule that all in-custody informants have lied before the fact.  (Governor Schwarzeneggar’s letter to the California State Senate vetoing SB 1589.)

That’s not what SB 1589 stated. The bill simply required that in order to obtain a conviction based on the testimony of in-custody informants, there must be corroboration.  A similar rule, which has existed for hundreds of years, “usurps the juries’ function” when it comes to uncorroborated confessions.  It’s called “corpus delicti.” The impetus for that rule, like SB 1589, came after several innocent people were convicted (and executed) for the murders of missing people who later turned out to be very much alive.  (David A. Moran, “In Defense of the Corpus Delicti Rule” (2003) Ohio State Law Journal, pp. 826-827.)

Sadly, we are speedily slipping back to those days.  The rights of the accused are most definitely not in vogue.  But isn’t it about time the pendulum swung back the other way a bit?  There have been 220 exonerations by DNA evidence since 1989.  A wrongly-convicted man in Dallas, Texas, recently became the twentieth person to be exonerated by DNA in that county since 2001.  That’s just one jurisdiction!  Unfortunately, not every case involves DNA. If you count exonerations by other means, there are 360 exonerations since the year 2000 in the United states; that’s 360 we know were innocent, but convicted!

Isn’t it time to return to some of the common sense safeguards our ancestors embraced?  Isn’t it time to stop being soft on those who work to falsely convict the innocent amongst us?  Making convictions easier means making it easier to convict innocent people.

It’s as simple — as easy — as that.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.¹

The Coffin Court, after stating this principle, pointed out that the concept is so well-established that “[i]t is stated as unquestioned in the text-books” and went on to explain that the presumption of innocence can be traced back to ancient Greek and Roman law and even to the book of Deuteronomy.²

So why has the United States Department of Justice decided to officially abandon the principle?

According to a story I read in the Fresno Bee this past weekend, but which can be found here, the United States Justice Department is considering allowing the FBI to investigate people without any evidence that they’ve done anything wrong. The problem, notes one FBI agent, is that “we don’t know what we don’t know” and “the object is to cut down on that.”³

More and more these days, we seem to be forgetting some of the basic underpinnings that made the American system of justice the envy and model of the civilized world. The problem is visible daily in courtrooms when potential jurors say they believe the defendant “would not be sitting there if he hadn’t done something.” No doubt it underlies the mistaken belief that if you have nothing to hide, you should not be afraid of having your civil rights ignored.

I have an idea. Since we don’t really care about them anyway, why not just abolish the Constitution and do away with all our rights? This will solve a lot of problems. For one thing, Americans will no longer have to be hypocrites when it comes to following the law. Without any Constitution, the government can pretend that our rights are actually alienable, instead of unalienable.⁴ Without any rights, we can dispense with trials, which most Americans consider an unimportant waste of time anyway.⁵

But more importantly, if we agree to put the last nail in the coffin of the presumption of innocence, abolish the Constitution and do away with all our rights, the FBI can read all our emails, tap all our phones, or just go door to door throughout America, cutting down on the problem of not knowing what they don’t know.

1. Coffin v. United States, 156 U.S. 432, 453 (U.S. 1895).
2. Ibid.
3. Lara Jakes Jordan, “U.S. weighs profiling for terror probes” (July 3, 2008) The Seattle Times found at http://seattletimes.nwsource.com/ html/nationworld/2008031065_terror03.html (last visited July 6, 2008).
4. See the Declaration of Independence. (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
5. Think I’m exaggerating here? When was the last time you met someone who didn’t complain about having to make the system work by serving on a jury? If Americans truly believed trials were important, we would not shirk the sacred trust that comes with being a juror.