Why, then, do I “defend criminals”?

First off — this is that ugly idealism again raising its head — I don’t buy into the idea that I defend criminals.  Wh-? Huh?

“But you’re a criminal defense attorney!,” you shout.  (You do know I can’t actually hear you, by the way, don’t you?)

At any rate, yes, I’m a “criminal defense attorney.”  I didn’t pick the moniker.  It’s what we who defend people who have been accused of committing crimes are called.  So I don’t defend criminals; I defend people accused of committing crimes.

“Words.  Words.  Mere words,” you say.  I really can’t hear you.  I hope you know that.  I’m just assuming, based on conversations with actual people, that this is what you’re saying.

Increasingly, though, these are not “mere words.”  If they ever were.  Mere words would be things like “innocent unless proven guilty,” or “the burden of proof is on the prosecution.”  Reality is that, increasingly, innocent people actually do get arrested, charged with crimes, sometimes have trials, and too often go to jail.  Or prison. Or worse.

Estimates of the number of innocent people in prison vary. Justice Scalia — against all reason — estimates it to be “less than three-hundredths of a percent — 0.027 percent, to be exact.”

Me — but, remember, I’m an idealist — I think even 0.027 percent is an outrageous shame.  I’m not the world’s greatest mathematician (that’s one reason I became a lawyer), but with 7.3 million citizens in the U.S. prisons system in 2007,¹ I estimate that’s getting close to a couple-thousand innocent people whose lives have been stolen.  (For you, “Justice” Scalia, that’s 1,971.)

You want to be one of those people and tell me that’s not bad; mistakes happen; you can’t make an omelet without breaking a few eggs?

Besides, I think that number is clearly wrong. The number assumes that Scalia and the people upon whom he relied are correct about the percentage of innocents in prison.

The authors of Convicted But Innocent: Wrongful Conviction and Public Policy (1996) think a conservative estimate is closer to 0.5%, which based on calculations using 1990′s numbers yields around 10,000 innocent people wrongfully convicted.  And they believe the number is actually quite a bit higher.  And in 1990, there were half as many people in prison as there are today, so the actual number using their calculations today would be 20,000 innocents in America’s prisons.

The estimate discussed in Convicted But Innocent is based on asking judges and prosecutors what they think the number is.  Not exactly the most scientific method for making such determinations.  After all, judges and prosecutors tend to be biased in favor of believing that those convicted accused of a crime were guilty.  The authors themselves say that if more public defenders were asked, the number would be higher.

Also,

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes and an unknown number of innocents have not yet been exonerated.²

Another study, based on death row inmates, shows that since 1977 five-hundred-and-fifty-three have been executed, while eighty were released from death row after being found innocent.

For every seven executed, one innocent person is freed — an “error rate” of more than twelve (12) percent. In the State of Illinois, 12 people have been executed since 1977 while 13 have been released after proving their innocence — an error rate of 52 percent.³

The Truth & Justice Foundation notes that estimates for wrongful convictions range all the way from a low of 3 to a high of 15%.

Whatever the number, it’s growing.

The length of sentences is growing, too.  In 2004,

One out of every 11 persons in the federal and state prison systems in the US [was] serving a life sentence, four times the number of “lifers” in 1984.⁴

Watson’s article is an eye-opening read.  Among other things, it notes that 60 percent of California’s “three strikes” cases involve non-violent offenses — property offenses, such as the theft of $153 of videotapes — resulting in sentences of 25 years to life.  Then there are the victims of domestic abuse, those who finally snap and kill the men who repeatedly beat them: they get beaten a lot less now that as many as 2,000 of them are serving life sentences.

Let’s not even consider that our “tough on crime” stance has us shutting down mental health facilities, then incarcerating most mentally-ill individuals such that — again going off Watson’s 2004 numbers — one in every five lifers and one in every six “general population” prisoners are mentally ill.

Meanwhile, the conservative Cato Institute reports:

The amount of money that American taxpayers spend on prisons has never been greater, and the fraction of the American population held in prison has tripled during the last 15 years, as has national prison capacity. Yet the expected punishment of violent criminals has declined, and violent crime flourishes at intolerably high levels. The seeming paradox of more prisons and less punishment for violent criminals, which means less public safety, is explained by the war on drugs. That war has gravely undermined the ability of America’s penal institutions to protect the public. As prisons are filled beyond capacity with nonviolent “drug criminals” (many of them first offenders), violent repeat offenders are pushed out the prison doors early, or never imprisoned in the first place.⁵

Alright.  Alright.  Let me stop beating the dead horse.  We have large numbers of innocent people in our prisons.  I blame our society’s increasing tendency to favor “victim’s rights” over the necessary goal of our justice system — the determination of whether an accused person is guilty, or not guilty.  But I’ll set that observation aside for another day.

We have innocent people in prison.  What shall we do if and when we find them?

Well, it depends.

According to the 9th Circuit Court of Appeals, if we find them in time — that is, before the artificial boundary created by Congress in 1996, which undid a couple hundred years (at least) of precedent — maybe they can go free.

But if they missed the boundary?  If — although they are actually innocent of the crime for which they were convicted – they are unable to prove their innocence until after the time limit for an appeal or writ has passed?

Well, fuck ‘em. Let ‘em rot in prison.

At least, that’s what the 9th Circuit Court of Appeal — allegedly the most liberal of circuits in the United States — has to say.

And that, my friend, is nothing short of criminal.

1. The prisons system includes people in prison, jail, probation and parole.
2. Sheldon Archer, “There are Thousands of Innocent People in American Prisons” (29 June 2010) ArticleBlast, available at http://www.articleblast.com/Laws_and_Legal/Criminal_Law/There_are_Thousands_of_Innocent_People_in_American_Prisons/.
3. Roger Roots, “How Often Does The Criminal Justice System Get It Wrong?” (February 5, 2001) available at http://www.caught.net/innoc.htm.
4. Debra Watson, “Huge rise in prisoners serving life sentence in the US” (26 May 2004) International Committee of the Fourth International.
5. David B. Kopel, “Prison Blues: How America’s Foolish Sentencing Policies Endanger Public Safety” (May 17, 1994) Cato Institute.

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.

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.