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.

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.