# "Never Had a Factually Innocent Defendant" -- Seriously, Bricker?
**URL:** https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443
**Category:** Great Debates
**Created:** [August 6, 2010, 7:13pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443 "2010-08-06T19:13:39Z")
**Posts on this page:** 20
**Page:** 3
### Author:  [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)
#### Post date: [August 7, 2010, 1:11am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/41 "2010-08-07T01:11:17Z")
> [@MichaelEmouse](#):
>
> > [@The\_Second\_Stone](#):
> >
> > If I were innocent and charged, I’d want a lawyer who actually believed me. The Innocence Project has managed to spring a bunch of people wrongly convicted beyond any reasonable doubt. Yet a jury prior to DNA evidence was convinced beyond a reasonable doubt to put them away for life and sometimes sentenced people to death (look to Illinois).
> >
> > As for the OP, all his clients that were acquitted were not guilty. Maybe some of them confessed to him, in which case he should not be admitting it here or anywhere else, and maybe some of them only look guilty. Either way, I wouldn’t want my lawyer talking out of school about it, even under a pseudonym.
>
> Does attorney-client privilege apply even when the client is not identifiable?
> Do prosecutors offer pleas even when they think they’ve got a good chance o convicting or do they usually reserve that for cases where they’re not all that certain?
>
> What are the differences between blue and white collar crimes, in terms of getting away with it? (need answer fast)
If the client is not identifiable in any way this wouldn’t be a problem. However, if we go to court records, we can look up all of the clients for a particular lawyer. If we know that\* all of the clients\* that one particular lawyer ever had were guilty, we know each individual one is guilty. So if any of us here on the SDMB knew who the poster was IRL this would be a problem. Lawyers are not supposed to ever reveal client confidences (confessions) and are supposed to remain loyal (voicing suspicions) even after the matter is ended. I hope it is an academic exercise in this instance.
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### Author:  [@gonzomax](https://boards.straightdope.com/u/gonzomax)
#### Post date: [August 7, 2010, 1:37am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/42 "2010-08-07T01:37:34Z")
> [@bdgr](#):
>
> I was arrested and charged with a crime I did not commit. It cost me my job, my home, thousands of dollars, and a good deal of my sanity. The trial lasted maybe 15-20 minutes it seemed and the judge (we waved a jury trial) found me not quilty as soon as my lawyer finished closing. He didn’t even hesitate to think about it, it was that obvious. Lots of money flushed down the toilet for nothing. I know a couple of other people who had similar experiances.
>
> The DA tried to get me to take a plea for a lesser charge, but I told them I’d rather go to jail than take it. Some of my friends weren’t so lucky, and took the deal.
Your friends would be part of the guilty statistics. Prosecutors would pat themselves on the back for putting away another "dirtbag’, when they were jailing someone with insufficient funds to fight.
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [August 7, 2010, 1:45am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/43 "2010-08-07T01:45:53Z")
My very first trial was a innocent defendant accused of a traffic violation, and she was acquitted. Basically somebody ran a red light and hit her car, and the officer gave the wrong person the ticket. There was a witness to the accident who could clear her name that I had trouble getting a subpoena to; luckily, the city attorney (who was almost as new as I was) had subpoenaed her, but decided not to call her after talking to her. Further, he decided not to tell me what she said. I don’t think it ever dawned on him that there’s a name for doing that.
Most of the other cases I had with an innocent client was as described above, where the defendant was indicted of something more serious than the lesser included that he was probably guilty of. A few cases involved defendants who were possibly guilty, but I had enough of a doubt myself that I would have found them not guilty had I been on their jury. Generally I could explain the weaknesses of the case to the DA and get a much better deal, and everybody was satisfied with the outcome.
More unusual were the cases where the facts weren’t in dispute, or weren’t completely in dispute, but it wasn’t clear that what occurred constituted a crime. One was a murder where three guys went up to a guy they had it in for, my defendant knocked the guy out, and another defendant pulled out a gun and shot him after someone in the crowd said “oh, what are you going to do now, shoot him?” It wasn’t entirely clear whether my guy should be held criminally liable for the murder - after a few months in jail, the murder charge was dropped and he pleaded to assault. Another was a defendant who was waiting outside a liquor store for an acquaintance who brutally assaulted the owner for no apparent reason, and then drove away afetr he jumped in the car. He claimed the guy held a knife to his wife’s throat, the DA said he helped the guy escape even if he didn’t know that the assault was going to occur, the jury convicted him, and the court of appeals reversed: even if that were the case, state law says that helping another escape from a crime you had no prior or concurrent knowledge of may make you guilty of aiding an escape but it doesn’t make you guilty of the principal crime. Another was a girl who accepted an invitation to fight from another, physically larger girl, and beat her up. We took it to trial and claimed mutual combat (i.e. can’t start a fight and complain when you lose), and won.
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [August 7, 2010, 2:02am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/44 "2010-08-07T02:02:48Z")
Oo, thought of another one: my defendant was arrested and charged with violating a protective order when police were called out over a noise complaint, domestic argument, no violence. He had reconciled with his wife, who was the subject of the protective order, but under state law it doesn’t matter - if the order’s still effective the police have no choice but to arrest you. The order was set to expire on 12 am on that exact date. Anyone see the problem? 🙂
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [August 7, 2010, 2:08am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/45 "2010-08-07T02:08:53Z")
> [@pravnik](#):
>
> Oo, thought of another one: my defendant was arrested and charged with violating a protective order when police were called out over a noise complaint, domestic argument, no violence. He had reconciled with his wife, who was the subject of the protective order, but under state law it doesn’t matter - if the order’s still effective the police have no choice but to arrest you. The order was set to expire on 12 am on that exact date. Anyone see the problem? 🙂
Why’d the prosecutor even bother to file charges?
---
### Author:  [@MichaelEmouse](https://boards.straightdope.com/u/MichaelEmouse)
#### Post date: [August 7, 2010, 2:10am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/46 "2010-08-07T02:10:13Z")
> [@pravnik](#):
>
> Oo, thought of another one: my defendant was arrested and charged with violating a protective order when police were called out over a noise complaint, domestic argument, no violence. He had reconciled with his wife, who was the subject of the protective order, but under state law it doesn’t matter - if the order’s still effective the police have no choice but to arrest you. The order was set to expire on 12 am on that exact date. Anyone see the problem? 🙂
They were confused about the meaning of “12AM” and whether it means the very beginning or the very end of the day? If so, is the meaning of 12AM pretty stable accross jurisdictions?
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [August 7, 2010, 2:24am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/47 "2010-08-07T02:24:24Z")
> [@Hamlet](#):
>
> Why’d the prosecutor even bother to file charges?
Because _neither he nor the arresting officer ever saw the problem_! 😃 On the day we were set to have a bench trial he let my client, who had a pretty extensive record already, plead off to no fine and time served just because he had no idea why I was taking it to trial and knew I must be up to something. Even after I explained it to him afterward he was a little dubious.
> [@MichaelEmouse](#):
>
> They were confused about the meaning of “12AM” and whether it means the very beginning or the very end of the day? If so, is the meaning of 12AM pretty stable accross jurisdictions?
Exactly - it’s not clear if 12 am or 12 pm means “noon” or “midnight,” and if it’s midnight, how do you know it wasn’t the midnight that already passed? Most state agencies avoid this problem by just not using 12 pm or 12 am at all, and using 12:01 or 11:59 pm or am instead. If you try to get an occupational license that starts or ends on 12 pm or am approved by DPS, the state police, they’ll refuse it - no such thing, as far as they’re concerned.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 7, 2010, 2:35am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/48 "2010-08-07T02:35:25Z")
> [@doreen](#):
>
> I wouldn’t rely on that site. I couldn’t find anything related to actual innocence on the BJS website, and it really isn’t the sort of issue that they would take a position on.
Fair enough. I noted in my post the cite was not all I would like.
Sadly looking for data on this has proven difficult.
The best I have found so far is [this site](http://www.skepticaljuror.com/search/label/Wrongful%20Conviction%20Rate). The author claims to be working through the data on wrongful convictions which will take him from 0% to 10%. Seems his latest evidence (which is the link I provided…his site is a little hard to follow) has it at 3.3% and suggests 5% wrongful conviction rate.
I would post info from there here but there is a lot and the various studies produce different numbers. Hard to decide what to post here.
So, read it if you like (I encourage you to, it is interesting) but I think it is safe to say innocent people get caught up in wrongful convictions (sure as hell is not 0% since we know people have been wrongly convicted…only takes one to get you past 0%). That is probably not surprising to anyone so the question is how often does it happen? If we go with 3.3% then, statistically, **Bricker** probably had some innocent people pass by him. Maybe not a lot but to suggest in never happened, while possible, seems unlikely.
Add in the horror show that is the plea bargain system and one really has to start to wonder. IIRC in a plea bargain the defendant must cop to the crime in court. They may be 100% innocent but since they told the court they were guilty, in order to avoid a more serious sentence, does **Bricker** deem them factually guilty? Guilty because they said so even if it might not be the truth? Nice way to pad stats but seems disingenuous.
I realize the plea bargain system is necessary in our court system. A tiny fraction of cases make it to court as is and the system is overworked. If everyone went to trial the system would collapse (I wonder what would happen if you could get everyone accused of a crime to insist on a trial as is their right…add in the right to a speedy trial seems to me the best way for defendants to walk free…they system could not cope…that is a discussion for another thread perhaps).
Still, the plea system is shit…just what we are stuck with although I think it captures far more innocent people than anyone is willing to admit (see the [Tulia 46 scandal](http://en.wikipedia.org/wiki/Tulia,_Texas) for abundant evidence of innocent people plea bargaining their way into jail).
TL;DR
I find it preposterous to suppose **Bricker** never had an innocent person before him. I can accept most were guilty, the vast majority even. But all of them? While possible I think it unlikely and more I find it worrisome were he ever to have to defend me if I were innocent.
That or he only had a handful of clients. If you have one client and he/she was guilty then you can truthfully say all your clients were guilty.
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### Author:  [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)
#### Post date: [August 7, 2010, 4:12am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/49 "2010-08-07T04:12:21Z")
> [@StusBlues](#):
>
> I do know of at least one person (my girlfriend) who was arrested at home for non-payment of a traffic fine, but who was turned loose minutes later when this was found to be a clerical error. She had the receipt in her purse when they picked her up (handcuffed and everything), but they needed to verify her innocence at the station.
Did they apologize? Was she able to sue them?
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### Author:  [@septimus](https://boards.straightdope.com/u/septimus)
#### Post date: [August 7, 2010, 5:14am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/50 "2010-08-07T05:14:59Z")
Many innocent people plead guilty before it ever gets to trial!
I had a friend who’s one of the most forthright and honest persons I’ve ever met. He was arrested for assault in a situation that was clearly self-defense. (Clear to him; I don’t know if he had useful witnesses.) Since he had no money for bail, his choices were to plead guilty and go free (for time served, per plea offer) or plead innocent and stay in jail. He pled guilty.
**septimus** was once charged with a motor-vehicle violation for which the fine was about $300. I may have been “factually guilty” but circumstances made it unjust and I think prosecutors would have seen that. I wasted a day going to court, chatted with public defender who agreed with my assessment, but no one from prosecutor’s was available to talk. I just pled guilty, since the alternative would have been to waste at least one more day.
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### Author:  [@Camus](https://boards.straightdope.com/u/Camus)
#### Post date: [August 7, 2010, 5:48am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/51 "2010-08-07T05:48:52Z")
[QUOTE=doreen]
IANAL, but in my experience dealing with parolees and sitting in courtrooms, it seems that damn near everyone gets offered a plea. Even people who get speeding tickets or tickets for a farebeat. It seems to have as much to do with allocating scarce resources as it does with the strength of the case.
[/QUOTE]
It’s not just scarce prosecutorial resources - every party in the American criminal justice system is heavily burdened, from prosecutors who must review police reports and decide what to charge, public defenders who are often assigned more cases than they can effectively handle, to judges whose court calendars are full with other trials or other matters forcing already scheduled trials to be delayed. It is simply more efficient that defendants who have little chance of being acquitted take a plea where they can get some benefit of the bargain, either in terms of a less serious crime or a lesser punishment, be it probation, jail, or prison.
> [@gonzomax](#):
>
> Your friends would be part of the guilty statistics. Prosecutors would pat themselves on the back for putting away another "dirtbag’, when they were jailing someone with insufficient funds to fight.
Have you even spoken to a prosecutor before? You don’t seem to know what you are talking about.
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### Author:  [@Green\_Cymbeline](https://boards.straightdope.com/u/Green_Cymbeline)
#### Post date: [August 7, 2010, 6:11am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/52 "2010-08-07T06:11:53Z")
Here’s an innocence story: Years ago, I was arrested and went to court on a charge of drunk in public. I was innocent of this charge and there was no evidence (as in, no breathalyzer or BAC). I suppose the only reason I was charged with this is because it took place in a bar (as in, you’re in a bar, you must be drunk, right?)
Anyway, I got a lawyer and we showed up for my trial date. Before the hearing, my attorney spoke with the prosecutor, and luckily the prosecutor saw that the charge was empty, because the charges were dropped right there.
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### Author:  [@DrDeth](https://boards.straightdope.com/u/DrDeth)
#### Post date: [August 7, 2010, 8:16am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/53 "2010-08-07T08:16:43Z")
> [@Bricker](#):
>
> > [@AClockworkMelon](#):
> >
> > What’s the difference between being actually innocent and factually innocent?
>
> I use the two terms as follows:
>
> “Factual innocence,” means that the guy is legally not guilty of the particular charge because he didn’t commit one of the elements thereof, or because the Commonwealth can’t prove he committed one of the elements. On the facts adduced at trial, he’s not guilty as a matter of law.
>
> “Actual innocence,” is a complete innocence of wrongdoing. This is literally the misidentified suspect, the wrong-place-at-wrong-time guy.
OJ was Factually Innocent, not Actually Innocent, then?
Actually Innocent would be the McMartin Pre-school case, I think?
There was a HUGE case here in San Jose a while ago, some bikers who were bouncers at a strip club beat a guy up and that killed him. All those facts were agreed upon. But the DA insisted on 1st Degree Murder, and the Jury said Not Guilty. Now, those dudes were certainly and even admittedly guilty of Manslaughter, but they weren’t charged with that crime, and I agree the DA did not make a solid case that it was Murder 1,\* beyond any reasonable doubt. \* So, if Bricker had been their lawyer, and had won the trial, it would have been a case of “Factual innocence” not “Actual innocence,” right?
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [August 7, 2010, 8:46am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/54 "2010-08-07T08:46:30Z")
[QUOTE=Whack-a-Mole]
The best I have found so far is [this site](http://www.skepticaljuror.com/search/label/Wrongful%20Conviction%20Rate). The author claims to be working through the data on wrongful convictions which will take him from 0% to 10%. Seems his latest evidence (which is the link I provided…his site is a little hard to follow) has it at 3.3% and suggests 5% wrongful conviction rate.
[/QUOTE]
For the record and our laypersons here seem to be making the same mistake
Wrongful Conviction IS NOT THE SAME as Innocent.
Wrongful Conviction simply means that the conviction is not maintainable in law. It does not (for the most part) state that the Convict was innocent of the crime alleged, just that his/her conviction for the same was fatally defective.
To take an example, Hearsay is not permitted in most common law juridictions\*, if say heresay evidence is presented at trial and is allowed , and it forms a major part of the case againt the accused, then any resulting conviction is certainly flawed and liable to be overturned. It does not that the person is in fact innocent of the charge alleged.
On the issue of wrongful convictions and miscarriages of justice, you will note that most of them were either cases which had a lot of media exposure or were horrific crimes where the police and prosecution service were under pressure ti obtain convictions. Exhibit 1, the wrongful terror convictions in the UK in the 70’s and 80’s which came to light later.
\*Subject to certain exceptions.
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### Author:  [@Camus](https://boards.straightdope.com/u/Camus)
#### Post date: [August 7, 2010, 9:01am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/55 "2010-08-07T09:01:46Z")
> [@DrDeth](#):
>
> There was a HUGE case here in San Jose a while ago, some bikers who were bouncers at a strip club beat a guy up and that killed him. All those facts were agreed upon. But the DA insisted on 1st Degree Murder, and the Jury said Not Guilty. Now, those dudes were certainly and even admittedly guilty of Manslaughter, but they weren’t charged with that crime, and I agree the DA did not make a solid case that it was Murder 1,\* beyond any reasonable doubt. \* So, if Bricker had been their lawyer, and had won the trial, it would have been a case of “Factual innocence” not “Actual innocence,” right?
So long as a prosecutor provides, and a judge agrees, jury instructions provided at the close of the trial can include lesser-included offenses. That means that if the jury found beyond a reasonable doubt that a defendant committed voluntary manslaughter as opposed to first degree murder, they would have the option (and the appropriate verdict form) to record that determination regardless of whether the defendant was only charged with first degree murder.
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### Author:  [@Shodan](https://boards.straightdope.com/u/Shodan)
#### Post date: [August 7, 2010, 12:03pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/56 "2010-08-07T12:03:50Z")
> [@Bricker](#):
>
> I use the two terms as follows:
>
> “Factual innocence,” means that the guy is legally not guilty of the particular charge because he didn’t commit one of the elements thereof, or because the Commonwealth can’t prove he committed one of the elements. On the facts adduced at trial, he’s not guilty as a matter of law.
>
> “Actual innocence,” is a complete innocence of wrongdoing. This is literally the misidentified suspect, the wrong-place-at-wrong-time guy.
If I understand the distinction, someone who is convicted of a crime they did not commit, is factually guilty! :eek:
Regards,
Shodan
---
### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [August 7, 2010, 1:00pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/57 "2010-08-07T13:00:56Z")
Yes they are guilty, they have been properly convicted, after a trial before a court of competant juridiction.
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### Author:  [@SteveG1](https://boards.straightdope.com/u/SteveG1)
#### Post date: [August 7, 2010, 3:13pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/58 "2010-08-07T15:13:53Z")
> [@Procrustus](#):
>
> I had a young Hispanic man convicted of a drug crime for merely standing around when another young Hispanic man was selling drugs to an undercover officer in a public park. The State’s theory was that his presence was “aiding and abetting” the sale. They had no evidence that he even knew the seller or profited in any way from the sale. The jury convicted him anyway. (I concede a person could be guilty under similar facts, but this kid didn’t seem guilty to me.)
So, if someone does a crime (dealing, OK) and I just happen to be in the general area (not involved, completely ignorant of it) I could go to prison too? Holy shit. What the fuck.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 7, 2010, 4:17pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/59 "2010-08-07T16:17:28Z")
> [@AK84](#):
>
> Wrongful Conviction IS NOT THE SAME as Innocent.
Fine.
Why does it matter here? Maybe I have misread the thread but both actually innocent AND factually innocent are being counted.
Plus, in many of the cases where DNA evidence is used to exonerate a person that would seem to make them _actually_ innocent. E.G. The DNA obtained from the rape victim is NOT Convicted\_Person\_X so they COULD NOT be the rapist.
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### Author:  [@Lakai](https://boards.straightdope.com/u/Lakai)
#### Post date: [August 7, 2010, 6:55pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/60 "2010-08-07T18:55:20Z")
> [@Whack-a-Mole](#):
>
> > [@AK84](#):
> >
> > Wrongful Conviction IS NOT THE SAME as Innocent.
>
> Fine.
>
> Why does it matter here? Maybe I have misread the thread but both actually innocent AND factually innocent are being counted.
I believe Bricker is only talking about actually innocent defendants that are taken to trial.
If there is good evidence that a person is innocent, that can always be brought to the prosecutors attention before trial and the case would be resolved then.
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