# "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:** 4
### Author:  [@Two\_Many\_Cats](https://boards.straightdope.com/u/Two_Many_Cats)
#### Post date: [August 7, 2010, 7:59pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/61 "2010-08-07T19:59:11Z")
How about The Innocence Project? Here in Illinois, some ungodly number of people on death row were cleared through DNA. Nine, I think. The then governor, George Ryan, emptied out death row by commuting everyone there to life imprisonment. That event changed my mind about the death penalty.
Even now, some guy in this state is in the process of being cleared of killing his daughter and her best friend after something like five years. There’s something really wrong with the criminal justice system, in my opinion.
---
### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [August 7, 2010, 8:15pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/62 "2010-08-07T20:15:57Z")
> [@MichaelEmouse](#):
>
> > [@begbert2](#):
> >
> > Would answering this count as aiding and abetting, or conspiracy to commit?
>
> No, I’m just curious about different types of crimes. I’ve heard that white collar types get away with crimes more easily and I’m wondering whether this is true and if so, why.
Fraud, corruption etc are a lot more difficult to prove than your average common assualt and battery. Fraud trials especially are long drawn out anc compliacated, I might spend 3 months in one and about 3 hours in an assualt trial.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 7, 2010, 10:16pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/63 "2010-08-07T22:16:17Z")
> [@Lakai](#):
>
> > [@Whack-a-Mole](#):
> >
> > 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.
Another category which seems to be escaping attention: not guilty of the charged offense but guilty of a lesser included offense…
---
### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [August 8, 2010, 1:05am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/64 "2010-08-08T01:05:45Z")
> [@Bricker](#):
>
> > [@Lakai](#):
> >
> > 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.
>
> Another category which seems to be escaping attention: not guilty of the charged offense but guilty of a lesser included offense…
Everybody is guilty of something so I suppose you could say they are all guilty then but seems, again, disingenuous.
For instance, I crossed against the light today.
---
### Author:  [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)
#### Post date: [August 8, 2010, 1:10am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/65 "2010-08-08T01:10:02Z")
> [@Whack-a-Mole](#):
>
> Everybody is guilty of something
You’ve read Dasheil Hammet, I see. 🙂
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 8, 2010, 1:21am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/66 "2010-08-08T01:21:32Z")
> [@Whack-a-Mole](#):
>
> > [@Bricker](#):
> >
> > Another category which seems to be escaping attention: not guilty of the charged offense but guilty of a lesser included offense…
>
> Everybody is guilty of something so I suppose you could say they are all guilty then but seems, again, disingenuous.
>
> For instance, I crossed against the light today.
Not any lesser offense in the entirety of the criminal code. :rolleyes:
A LESSER INCLUDED OFFENSE.
---
### Author:  [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)
#### Post date: [August 9, 2010, 12:55pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/67 "2010-08-09T12:55:17Z")
> [@Hamlet](#):
>
> I always get incredibly frustrated by these kinds of ignorant posts. Posters like you seem to think that the term “prosecutors” means “any prosecutor I can imagine including tools like Nifong”. It matters not one whit that an overwhelming number of prosecutors are honest, hardworking, and fair people, people like you get to post inane comments like “prosecutors are out to get people” or “prosecutors want to make a name for themselves” without regard for the actual reality of the situation. I’d love to see you try that kind of “logic” using “white people”, “the Irish”, or “men” instead of “prosecutors”.
Nonetheless, prosecutors are humans and are subject to the same bias as any other human. Some more than average and these will commit the more egregious offences (e.g. Nifong) and some less. But there’s no getting around the fact that they have a powerful incentive to prosecute innocent people in high profile cases. No doubt they convince themselves that these people are guilty. (I bet even Nifong did.)
Sorry to offend you. But if you have any rationale to deny this beyond your personal sense of outrage, I’d be curious to see what that might be.
---
### Author:  [@StusBlues](https://boards.straightdope.com/u/StusBlues)
#### Post date: [August 9, 2010, 3:52pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/68 "2010-08-09T15:52:23Z")
> [@carnivorousplant](#):
>
> > [@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?
They were apologetic all the way. The whole thing was over in less than 20 minutes. Would have made a pretty lame lawsuit.
ETA: Dragging her out of bed in the first place over an unpaid ticket is kind of a dick move, though–IMHO.
---
### Author:  [@Acsenray](https://boards.straightdope.com/u/Acsenray)
#### Post date: [August 9, 2010, 4:25pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/69 "2010-08-09T16:25:09Z")
> [@AK84](#):
>
> Going to trial, definatly (though Bricker’s time as a Public Defender might skew his statistics, PD’s get the hopeless cases more often than most of us).
I also know a public defender who has told me that almost all of his clients are factually guilty. A public defender ends up with the worst cases, and largely petty ones at that – marijuana possession, disturbing the peace, petty theft, etc. For these kinds of crimes, even the most unethical prosecutor wouldn’t bother pushing for a conviction against someone who was factually innocent. A huge percentage of these cases are for things like failure to appear, and it’s very difficult to be charged with failure to appear unless you actually did fail to appear (although, I do know a guy who was charged with that when the judge changed the hearing date after a conference with all parties, but through a clerical error, the change didn’t get recorded).
---
### Author:  [@AHunter3](https://boards.straightdope.com/u/AHunter3)
#### Post date: [August 9, 2010, 4:32pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/70 "2010-08-09T16:32:30Z")
I could use some clarification around the notion of “lesser included charge”. To which of the following scenarios would y’all consider that phrase to apply, and therefore consider the defendant to be other than “actually” innocent?
• Police officers suspect Joe Schmoe of selling marijuana. In a situation where they have suffiicient cause to search, they find Mr. Schmoe in possession of some quantity of marijuana. Changed with possession with intent to sell. Defending attorney such as **Bricker** believes Schmoe did at no time sell marijuana and this stash was for personal consumption. Obviously guilty of lesser charge of possession of a controlled substance.
• Police officers suspect Joe Schmoe of committing armed robbery and murder. Arrested under reasonable and appropriate circumstances, Joe Schmoe is found to be in possession of some quantity of marijuana. Charged with murder 1st, armed robbery, lower murder charges, manslaughter, possession with intent to sell, and possession of a controlled substance. And resisting arrest and jaywalking. Subsequent events make it clear that Schmoe was not present at the robbery/murder. Defending atty believes Schmoe is guilty only of possession of a controlled substance, unrelated to the major charged of which he was not at all guilty, but definitely and genuinely guilty of the pot charges.
• Police officers suspect Joe Schmoe of burglary. Arrested with sufficient good reason, Joe and his Avis rental car are searched. In the carpet of Joe’s rented car are found some marijuana seeds and a few stems, and a used pot pipe is found in the floorboards. Initially charged with burglary, breaking and entering, criminal tresspassing, and possession of a controlled substance, subsequent investigation leads to determination that crowbars and other tools were not used in burglary and nothing ties Joe to the building. Plea bargained to possession of a controlled substance. Defending atty believes Schmoe to be guilty of nothing except being in possession of ancient stems seeds and dirty pipe that probably belonged to someone else anyway, these lesser charges being included only to give officers a concrete reason for detaining the suspect while suspecting him of a crime he did not commit (burglary), and therefore falling into the “everyone is guilty of something if you look long enough for it” category.
---
### Author:  [@Lemur866](https://boards.straightdope.com/u/Lemur866)
#### Post date: [August 9, 2010, 4:39pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/71 "2010-08-09T16:39:33Z")
To answer for Bricker, scenarios 2 and 3 don’t fall under “lesser included offenses”, only the first scenario does. The drug charges are separate charges, not included charges.
A lesser included offense is something like being charged with attempted murder, because you punched a guy in the head. Well, you could also be charged with aggravated assault. Assault is a lesser included offense. If you’re arrested and the cops find a baggie of pot in your pocket, that’s an offense, but it isn’t an included offense to the charge of attempted murder, it’s a completely separate offense.
---
### Author:  [@begbert2](https://boards.straightdope.com/u/begbert2)
#### Post date: [August 9, 2010, 6:22pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/72 "2010-08-09T18:22:14Z")
> [@Bricker](#):
>
> > [@begbert2](#):
> >
> > “Never Had a [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] Defendant”
> >
> > In other words, you never had a defendant that either failed to commit an element of the crime, _or_ for which the Commonwealth was unable to prove it. In other words, the Commonwealth always successfully made their case.
>
> Think hard. Might there be another explanation that fits the facts?
Yes - you were probably using your own terms wrong.
---
### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [August 9, 2010, 7:28pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/73 "2010-08-09T19:28:05Z")
> [@Bricker](#):
>
> I’d be very interested in hearing from anyone, on either side of the aisle in criminal defense, who has a “true innocent” story.
I’ve done some _pro bono_ work on the appeal of a guy here serving life without possibility of parole for a crime he simply did not commit. We just lost the state habeas case procedurally. So now it is off to the federal system.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2010, 11:13pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/74 "2010-08-09T23:13:25Z")
> [@begbert2](#):
>
> > [@Bricker](#):
> >
> > Think hard. Might there be another explanation that fits the facts?
>
> Yes - you were probably using your own terms wrong.
No, I used my terms precisely correctly.
Try again. Can you figure out where your mistake is?
---
### Author:  [@begbert2](https://boards.straightdope.com/u/begbert2)
#### Post date: [August 9, 2010, 11:18pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/75 "2010-08-09T23:18:32Z")
> [@Bricker](#):
>
> > [@begbert2](#):
> >
> > Yes - you were probably using your own terms wrong.
>
> No, I used my terms precisely correctly.
>
> Try again. Can you figure out where your mistake is?
The only possible one is that the paraphrase I lifted from the OP did not convey your original intent - that is, that it was not your words. I admit that is a distinct possibility.
If that’s not it, there is no error. Though your cheeky way of trying to make a game of it _is_ pretty charming.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2010, 11:43pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/76 "2010-08-09T23:43:28Z")
> [@AHunter3](#):
>
> • Police officers suspect Joe Schmoe of selling marijuana. In a situation where they have suffiicient cause to search, they find Mr. Schmoe in possession of some quantity of marijuana. Changed with possession with intent to sell. Defending attorney such as **Bricker** believes Schmoe did at no time sell marijuana and this stash was for personal consumption. Obviously guilty of lesser charge of possession of a controlled substance.
Possession of a controlled substance IS a lesser included offense of possession of a controlled substance with intent to sell.
> [@](#):
>
> • Police officers suspect Joe Schmoe of committing armed robbery and murder. Arrested under reasonable and appropriate circumstances, Joe Schmoe is found to be in possession of some quantity of marijuana. Charged with murder 1st, armed robbery, lower murder charges, manslaughter, possession with intent to sell, and possession of a controlled substance. And resisting arrest and jaywalking. Subsequent events make it clear that Schmoe was not present at the robbery/murder. Defending atty believes Schmoe is guilty only of possession of a controlled substance, unrelated to the major charged of which he was not at all guilty, but definitely and genuinely guilty of the pot charges.
So there are two “top counts” in play for this trial. First degree murder and possession with intent to sell. (Four if you count the resisting and jaywalking). With both, there are lesser included offenses. So in this case, Joe is guilty of a lesser included offense of one of the charged offenses.
> [@](#):
>
> • Police officers suspect Joe Schmoe of burglary. Arrested with sufficient good reason, Joe and his Avis rental car are searched. In the carpet of Joe’s rented car are found some marijuana seeds and a few stems, and a used pot pipe is found in the floorboards. Initially charged with burglary, breaking and entering, criminal tresspassing, and possession of a controlled substance, subsequent investigation leads to determination that crowbars and other tools were not used in burglary and nothing ties Joe to the building. Plea bargained to possession of a controlled substance. Defending atty believes Schmoe to be guilty of nothing except being in possession of ancient stems seeds and dirty pipe that probably belonged to someone else anyway, these lesser charges being included only to give officers a concrete reason for detaining the suspect while suspecting him of a crime he did not commit (burglary), and therefore falling into the “everyone is guilty of something if you look long enough for it” category.
The meaning of “…that probably belonged to someone else anyway…” is not clear to me.
If defense attorney genuinely believes Joe had nothing to do with the paraphenalia or the contraband, then he’d be that rarest of birds - the truly innocent client. If the pipe etc. was his, then he’s guilty of the offense he’s pleading to. It’s not a lesser included offense of any other charge.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2010, 11:55pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/77 "2010-08-09T23:55:24Z")
> [@begbert2](#):
>
> “Never Had a [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] Defendant”
>
> In other words, you never had a defendant that either failed to commit an element of the crime, **or** for which the Commonwealth was unable to prove it. In other words, the Commonwealth always successfully made their case.
So let’s go back here.
I have bolded the word “or” in your sentence. The word ‘or’ is disjunctive. It means that either option may be true to satisfy the condition.
So let’s review. A factually innocent defendant is one that either: (a) did not commit at least one of the elements in question, OR
(b) the Commonwealth cannot as a matter of law prove one of the elements.
Let’s just forget (b). You are hopelessly confused by (b), and I don’t wish to tax you unecessarily. And since we understand that “or” is disjunctive, let’s just focus on (a).
So I tell you I never had a client who did not commit at least one element of the elements in question. And I tell you that this client was acquitted. That is, the Commonwealth did not convince the fact-finder of each and every element of the charged crime.
Where is the contradiction? How do you conclude that the Commonwealth must have won?
---
### Author:  [@begbert2](https://boards.straightdope.com/u/begbert2)
#### Post date: [August 9, 2010, 11:59pm UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/78 "2010-08-09T23:59:06Z")
> [@Bricker](#):
>
> Let’s just forget (b). You are hopelessly confused by (b), and I don’t wish to tax you unecessarily.
You are being a jerk.
---
### Author:  [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)
#### Post date: [August 10, 2010, 12:30am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/79 "2010-08-10T00:30:58Z")
> [@StusBlues](#):
>
> They were apologetic all the way. The whole thing was over in less than 20 minutes.
Ah.
I envisioned her being put into a cell with aggressive lesbians and beaten periodically with a rubber hose. I am glad it turned out well. =)
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 10, 2010, 12:41am UTC](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443/80 "2010-08-10T00:41:28Z")
> [@begbert2](#):
>
> > [@Bricker](#):
> >
> > Let’s just forget (b). You are hopelessly confused by (b), and I don’t wish to tax you unecessarily.
>
> You are being a jerk.
Don’t mean to be.
But that sentiment seems remarkably thin-skinned for someone who happily opined that I lost each and every case I tried as an attorney. More so, when the conclusion you so smugly advanced was without any support in anything I posted. My humble effort to draw your attention to where your errors lay should have been greeted, I would think, with equally humble thanks.
[Previous page](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443.md?page=3)
[Next page](https://boards.straightdope.com/t/never-had-a-factually-innocent-defendant-seriously-bricker/549443.md?page=5)