"Never Had a Factually Innocent Defendant" -- Seriously, Bricker?

Great Debates
81

I prosecute.

The problem with debates of this sort is that there are generally two sorts of cases. In the first, there is no doubt that a crime was committed, the only question is whether the accused committed it.

The second class involves cases where the issue is whether a crime was committed at all. That large category of cases includes such disparate subsets as cases of child molestation of the “did too/did not” type, rapes where the defence assertion is consent, and those that involve questions of judgment such as reasonable necessity in self defence cases.

Much depends on how the defence chooses to run its case - a murder can be run as either a “whodunnit” by the defence or as a case of self-defence, depending on the client’s instructions.

It is in the former category of case that the question in the OP is interesting, because it is only really in that category that black and white answers are possible. From the second category, questions of consent, for example, can be fraught with complexity.

In those cases I have had which were run as whodunnits, I can’t think of one where I thought the accused was actually innocent. Of course if I had, the trial would not have started.

In the second category of case, I can think of one example where I thought the accused was actually innocent, but only after the trial had started. A fire crew were rushing to a job when (they said) the brakes of the fire appliance failed, and a young boy was thus run over and killed. Such tests as anyone could think of were conducted which showed that the brakes were fine, so it looked like the firies were cowboys, and covering their bums with a concocted story.

In the course of the trial, one of the witnesses gave a piece of evidence that prompted me to conduct a new test, which led to the discovery of an assembly defect in the brake system not previously uncovered. This which would have had the effect of creating an intermittent fault, which explained why other tests did not pick it up.

I am quite satisfied that the driver was actually innocent of any wrongdoing in the circumstances.

As to the snark from people above who think that prosecutors have an incentive to prosecute high-profile people who are innocent, such snark is born of cluelessness. Prosecuting high-profile cases where you are expected to win is difficult enough. To do so where the accused is innocent (and you are therefore very likely to lose) is pointless. Even assuming prosecutors think like this, why would you want to risk being associated with a high profile loss?

82

Considering that my anecdotal evidence appears to be consistent with other criminal law practitioners’ experiences, I hope that this makes the OP, and others, a bit more sanguine about the subject.

83

Why is that “snark”? To suggest that prosecutors are subject to bias is “snark”?

Hey, I’m all for a healthy self-image, but this seems like a bit much. (OK, that was snark. :D)

Several reasons.

  1. the prosecutor undoubtedly convinces himself that the guy is really guilty in most cases, as it’s a matter of bias and not completely evil people.

  2. it’s simply untrue that you are “very likely to lose” in all cases where the accused is innocent. As noted earlier, the prosecution has some very powerful advantages over the defense that are unrelated to them being right, mostly connected to the leverage that they have over other witnesses. The prosecution can - and generally does - cut deals with lower-profile people to go easy on them in exchange for them implicating the guy they’re after. Even where this is not done explicitly, it’s often implicit, in that witnesses for the defense are sometimes reluctant to testify for fear of being seen by the prosecutors as part of the cover-up and fellow schemers with the defendant, and possibly end up prosecuted themselves. (Until recently, prosecutors routinely pressured companies to refrain from subsidizing the legal bills for employees accused of wrongdoing, but this was struck down by a court decision, IIRC.)

  3. When the public is out for blood, you need to do something. If the people are really worked up and want someone prosecuted, you can do better by going along with them and losing down the road then be seen as someone insensitive to this heinous crime and sympathetic to this terrible criminal.

84

snort. I admire your optimism. :slight_smile:

85

I represented an actually innocent defendant in a murder case for about three months (he was initially charged as a juvenile and I handled it until he was bound over for adult charges). I knew he was innocent from day one of meeting him at his preliminary hearing. He spent 19 months in jail and went through one trial that resulted in a mistrial due to a juror issue. During the trial, an inconsistency in testimony caused both the defense counsel and prosecution to agree to re-test the key piece of evidence (a bloody palmprint on a bedroom wall), a test which would cause the evidence to be destroyed. Turns out that a miscommunication at the crime lab caused them to conflate two prints–one a bloody print of the victim’s, and another of my former client (the victim’s identical twin brother, amazingly) which was NOT in blood. Seeing as they’d shared a room until recently, it made sense that a non-bloody print would have been in there. The family had always insisted that the murder occurred during an armed burglary. They never did find out who actually did it.

That kid’s case will haunt me until the day I die. I remember the futility of it all, getting the case at such an early stage, talking to him and all the alibi witnesses, and wondering how the hell I was going to get past the damning evidence of a bloody palmprint that, as it turned out, never fucking existed in the first place. He’s going to college now (he was president of his school’s NHS branch when he was arrested) and doing well, and got a settlement from the city, but the scars he got from this experience will never, ever heal.

86

A few years ago, my then 16 year old daughter, was approached by the police. I have taught my children that if that ever were to happen they were to show ID, then ask for an attorney and a parent. They were not to talk.

Eventually it came out that the police wanted to discuss my daughter’s friend, who may have done something illegal, although she was never charged. My daughter didn’t want any part of the situation, and declined to talk to them during the interview. So they charged her with disturbing the police, hoping that she would cooperate in exchange for dropping the charge.

Long story short, we got a lawyer and the police withdrew the charge just prior to the case being called.

87

I was quite sanguine to begin with. You just made a rather provocative statement, and I thought it best to open another thread to discuss it rather than hijack the original.

88

To expand upon what I said above, I can’t think of a factually innocent person I prosecuted in a “whodunnit” case.

As to kiddie fiddle cases where the kid says he did it and the accused says he didn’t, it is difficult to know. Usually I am sufficiently persuaded by the kid that it is worth running, but if the jury acquits, who knows? I look for little psychological clues that the complainant is telling the truth, but maybe the jury saw similar ones the other way that I didn’t pick up. And there are general propositions that can be used by a bystander like asking the question why would the complainant lie about this? If there is no apparent reason for a lie, then in a naive sense that makes the story more convincing. But jurors are not allowed to think like this because it inverts the onus of proof.

So as a general proposition I agree that those acquitted of kiddie sex crimes at trial are very frequently guilty in the sense that they did the deed, but enough doubt existed to acquit. But can I say I never saw an innocent one? Too tough a call. I can’t think of one off-hand, but the issues are too murky to be confident.

As to cases where the jury made a judgment call about whether it was reasonable to punch someone hard in the face when they insulted the assailant’s taste in haircuts, or to shoot someone who appeared to have a knife (but didn’t), it is impossible for me to second guess jury verdicts of that sort. Why is my judgment about what was reasonable better than the collective view of the jury? So in those cases, I don’t think it is meaningful to talk about “factual innocence” in the same way as I have been discussing it above.

As to the snark, the process of inventing malign motivations as an act of imagination and then assuming people act in accordance with the motivations so invented is a game without rules. It is akin, in its own way, to the process of ascribing to the CIA/LBJ/Mafia a motive to kill Kennedy and thus concluding that they did so.

In the case of prosecutors, what Fotheringay-Phipps has not accounted for is the much greater motivation to have an actual career. A prosecutor’s (indeed any advocate’s) greatest asset is his credibility with the courts and the profession.

This is not apparent to those whose only knowledge of the profession is from the outside, but it is true. Unless you have that credibility, which includes a reputation for being measured, balanced, and generally a “safe pair of hands”, you find yourself just not making it in the profession. At the worst end of the scale, you get treated as a joke; in the middle of the scale, your career just seems to slow down and you never somehow seem to get the big interesting cases. Your arguments are not accepted. The court just does not trust your judgment.

And a really great way to do irreparable damage to your long-term reputation is to go off half-cocked on gung-ho witch-hunts.

I am not saying there have never been prosecutors who have gone off the rails. But the reality of professional life is that there are powerful counters to the incentives that Fotheringay-Phipps seems to think are the dominant ones. So powerful are these counter-incentives that in practice they make the things F-P talks about (the asserted powerful incentives to prosecute innocent people in high profile cases) actually trivial.

Don’t forget, high profile cases generally get good representation. And the baying for blood thing easily turns on the prosecutor if he loses. We all understand that the media can be fickle in things like this. Further the belief that it is easy to get convictions of innocent people through “leverage” of witnesses shows little understanding of how things actually happen. Made-up BS tends to fall in a heap under the pressure of court and the first thing a witness who gets caught in a lie does is point the finger if there was any impropriety in gaining his testimony.

Lastly, I am not sure what point F-P is making when he says, as a criticism, that a prosecutor may have convinced himself of the guilt of the ultimately innocent accused. The prosecutor cannot have done so unless there is actual evidence to support such a conclusion. And if there is, how is this a criticism? It does occasionally happen that an apparently guilty person turns out to be innocent (note the case I mentioned above) but the bare possibility of that is hardly a basis for not proceeding when apparently reliable evidence is there.

89

Let’s take it down to a level that almost anyone can understand.

Driving down the clear, empty highway with the cruise control on to stay legal. Hit a 7% downhill grade and gravity overrides the cruise control. Cop is at the bottom of the hill and does his pullover. Driver politely tells him that something doesn’t seem right. Cop infers, “fight it”. Driver pleads “not guilty”. At the court appearance before any testimony take place, the cop offers a plea that involves a $100 fine but no moving violation or points on the driving record. Any sane individual, no matter how innocent they are, are going to take that deal.

So, that upholds Bricker’s contention but it does mean that there was actual justice.

90

On behalf of the plaintive side of the equation, I have only two anecdotal data points (unrelated, but similar cases: mine and a former classmate and friend of mine) with which I am familiar and can speak somewhat authoritatively. Tally: My case: 100% factually innocent; Former classmate’s case: almost certainly 100% factually innocent. So, in my somewhat limited and perhaps biased experience, the prosecution got it wrong 100% of the time. Hard for me to fathom some defense attorneys claiming such a paucity of wrongly accused clients throughout their careers.

Ironically, I always was, and continue to be an advocate for harsh sentences for criminals and the advancement of virtually all tough on crime measures. Unlike before, however, I now see the fallibility of our adversarial trial system and believe greater measures are needed to prevent wrongful prosecution. Our judicial system has cracks in it; I just didn’t see them before.

My case in a nutshell: I was the target of an elaborate and costly FBI sting operation (part of a misguided, politically driven, federal initiative); federal grand jury found probable cause to indict me (guess I’m no better than a ham sandwich); overzealous prosecuting attorney threatens trumped up charges, seeks at least 8-year prison sentence and ~$10-million restitution; deplete entire life savings to pay for a pretty good (i.e. expensive) defense team, followed by a first-rate (i.e. uber-expensive) defense team over a two year period (I knew I was going to have to put plans of buying my dream 17’ bass boat on the back burner, when, within 5 minutes of talking to the first attorney—the cheap one—he said, matter of factly, “you need to wire me $50,000 by next Wednesday and another $25,000 for our private investigator and consultant team”); $50k flush attorney tells me to expect visit from FBI in near future, orders me to not talk to them, but instead to immediately put them on the phone to him…I, wishing to nip the government’s innocent misunderstanding of the salient facts in the bud, don’t heed attorneys advice and proceed to give agents Rambo and Balboa a chalkboard lesson in my office (big mistake, make mental note to not listen to gut in future); AUSA offers me a “honey” of a plea agreement: 18-months house arrest, $500,000 restitution (no money left after paying for your defense?, no problem, the government graciously puts you on a kick-ass payment plan)…oh, and you won’t be able to practice in your profession—ever again. I refuse the deal; my team chomps at the bit, trying to convince me to go to trial (“there’s no such thing as a slam dunk defense case, but yours is a close as it gets, this is a winnable case” then, the appeal to righteous indignation kicker, “don’t let them get away with this, they’ll just do it to others like you”); “Sorry, guys and gal, going to trial is not an option for me, we need another option” (I could almost read their collective minds, “no plea bargain…and no trial?, we’re kind of running out of options here , hombre”); on advice of consultant, hire new defense team—bigger guns get immediate “new and improved” plea agreement offer: 12 months house arrest (where do they put the electronic collar, ankle, neck or scrotum?), $350,000 restitution…and, still can’t practice in your profession—ever again; I decline offer; Team arranges a test polygraph before offering it to prosecution—I pass, no deception…didn’t even need a beta-blocker or a tack in my shoe; Tell team I want them to ask for a proffer for me (FBI’s already visited, threatened and tried flipping half my friends, colleagues, employees and others; prosecutor’s proffered the other half—why don’t they want to chat with me? Is it my breath?)…team tells me a proffer is extremely risky (“they’ll twist what you say and are only looking for things to make their case stronger”), but I insist and they make the offer. Next day they tell me the ASUA’s charming reply: “I don’t want to see him, hear him or smell him, tell your client to take the plea agreement or I’ll see him in court, then off to prison”; “Well, tell Mr. Grouchy Pants that he’s officially off my Christmas list and that I respectfully decline both his plea agreement and his invitation to spar with him in court…no, don’t really tell him that, I’m just kidding”; over next few weeks I (with the help of my consultant) shoot a “why I’m innocent” video and type out a 32-page, single spaced “here’s the errors in your prosecutorial fact finding venture” paper (using different titles, of course), then ask my team to try delivering them, in person, to the AUSA, and see what, if anything, happens. They tell me it’s a mistake—he probably won’t accept it and if he does, will just be looking for more things to bolster their case. After viewing the tape, reading the paper and suggesting a handful of edits, however, they agree that my points are persuasive and promise to attempt delivery; AUSA accepts video and paper and we don’t hear back from him for two weeks; get call from lead attorney who puts me in conference mode with rest of team (three more attorneys, two private investigators and a professional consultant)…they don’t sound stoic and grim, like they usually do…hmm…in fact, they kinda sound…happy. They all start talking over each other: “are you sitting down?”, “got some fantastic new for you”, “you really deserve this after all this time”, “we’ve never seen anything like this succeed before!”, “they are not going to indict you”, “all charges dropped!”, “congratulations, you are one lucky bastard”, “when can we expect your last payment of $12,000?”, “time for you to celebrate.”

Lucky? Really? …I did *nothing *wrong—nothing; I was guilty of no crime—against the federal government, the state or even nature; I lost two years of my life defending trumped up, false charges—time taken away from my young children, the youngest of whom was going through an ordeal worse than mineand in need of a full time, focused dad; 20 years of hard earned life savings—gone in the blink of an eye; marriage mortally and irreparably damaged; profession that took 12 nose-to-the-grindstone and expensive years to prepare for—down the tubes. Let me blow on your dice, I’m Mr. Lucky all right.

…and, I didn’t even get a “whoops, our bad, sorry ‘bout that” from my accuser (s). AUSA continues showboating his dog and pony show, busting white collar crime and feeding pithy quotes to the news outlets at every opportunity.

Sidebar: The “long version” of my two year jaunt through the federal judicial system highlights many of what I feel are egregious incidences of trial system failures, in need of overhaul. Since on extended forced “hiatus” from my career, I had time to jot down a few notes on my legal experiences and that grew into a nearly 400 page first draft for a book, started as therapy, but continuing with an eye toward publication when I began to enjoy reading what I was writing and thought others may too (besides, I thought I may soon need some revenue to finance my forthcoming restitution payment plan). I pitched the idea to a publisher and his sobering advice had me shelve my literary aspirations for good. In essence, his advice can be distilled thusly: “are you Paris Hilton?”, “is the prosecuting attorney a vampire?”, “did you include recipes for quick weight loss?“, “are the FBI agents, by chance, co-joined sadomasochistic dwarfs?” No, no, no and no? Well, who the hell exactly do you think will buy your book, your mom? Point taken; back to the drawing room…

Lucky. Well, compared to my old classmate and long lost friend—let’s call him Tom—, maybe I was lucky. He and I moved to different states and lost touch with each other years ago. But, after searching online for cases similar to mine, his name popped up and my jaw dropped reading the news accounts. He was ensnarled in the same federal witch-hunt that I was, but his ordeal took a different, more tragic, course than mine. Like me, Tom did not fit the profile of someone inclined to commit high crimes nor misdemeanors. He was a nice hard-working guy, unassuming, honest to a fault, integrity out the wazoo—a family man with high standards and impeccable ethics. I don’t for a minute believe Tom was guilty of the charges levied against him. Some people you can take at face value and no matter how much time passes, you just know their integrity will persist intact and unscathed.

The news account went into detail about the stress and strain Tom was under from his indictment and pending trial. It mentioned the breakup of his marriage and his wife leaving him for someone else (someone of mid-level notoriety, hence the news story popping up on an internet search). Unlike me, Tom was indicted and had a pending trial date—a trial date that, unfortunately, never materialized. My old classmate and former friend exercised a third option besides plea bargain or trial; he went into the woods, put the business end of his hunting shotgun in his mouth and pulled the trigger. His ordeal was over. What a waste of a good life.

Always been pro all things American, still am for the most part. Love the land, the people and the democracy. Even got some love for the executive and even legislative branches of government…Judicial branch? Not so much any more.

91

Yes, you did do something very wrong- you spoke to the cops against the express advice of your attorney. We have said it over and over here on the SDMB (and the ACLU sez the same) You have only two things to say to the police once you’re a suspect “I want to speak to my attorney” “Am I free to go?”.

If there is a news article about “Tom”
, it’s then no longer private, why not provide us with a link?

92

I certainly hope no one was reading my initial comment as “…so justice was always done!” Far from it.

93

I notice you were never a client of a public defender during this time.

In my view, that changes the odds a bit.

94

As I noted before in this thread there is a distinct percentage of cases where people were thrown in jail who were innocent.

There was some nitpicking suggesting that maybe they were guilty but factually innocent. Perhaps that is true.

In Illinois we have this:

I presume those on death row were “whodunnit” cases and not ones of self defense or such.

I also presume, that to be exonerated, the evidence to exonerate had to be overwhelming…e.g. it was not your DNA on the rape/murder victim so could not have been you (general “you”). So, the person is, in fact, probably actually innocent.

And this is just for death penalty cases which, we are led to believe, are given even greater scrutiny considering the penalty.

Further, the 6% is the base number for people they did find evidence to exonerate for. Almost certainly it is more than 6% but there are not resources or access to evidence to clear everyone wrongly convicted.

Now, no system will be perfect and you could argue that 6% is pretty good (and of course someone could argue the opposite and say it is awful). From my previous posts looking in to this I would bet 10% is closer to the real number but since I can only validate the 6% will stick with that. That is a different discussion though.

The point here is one would think, in a career as a prosecutor/defender, that statistics would have you see a few innocent people and not just one or none. It is of course possible that it worked that an innocent person never came before you and someone else got more than 6%. Stats average things out. Still seems unlikely to me that you’d have none or one unless you are very new to the job and have not seen many people yet.

As for professional opinions they can be decidedly wrong. I forget the case (I think in Texas) where a father was accused of burning his house down with his kids in it. The investigator for the fire was presumed one of the best with years of experience. People looking at it since have found that the investigator got it colossally wrong but he was “sure” of his conclusions (I do not think he ever admitted he was wrong). IIRC the father was executed before he could be exonerated of the crime. Sometimes professional hubris can blind you.

Finally, while I suspect most prosecutors approach their jobs with integrity I think there are plenty of examples where prosecutors are over zealous in order to pump up their prosecution rate and look good. Again examples have been given in this thread…bet we can come up with a lot more.

95

The idea that a prosecutor stands to gain by prosecuting a high profile case is not “an act of imagination”. Just here on the East Coast I can think of numerous Big Time politicians who make political careers for themselves by doing just that, e.g. Elliot Spitzer, Andrew Cuomo, Chris Christie. But I wouldn’t think this is the type of thing you even need examples for.

You could make this type of argument about people in virtually any career. And yet … bias continues to exist in the world.

I’ve not seen this happen (other than the Duke case). Generally the media will focus on the cleverness of the defense strategy. Unless the prosecutors get reprimanded from the bench they generally get kudos for trying.

I don’t think this is true. And generally the prosecution flips several people before bringing the case, so they support each other.

And what “impropriety”? I could imagine the prosecution might be in trouble if they script out the witness’ testimony and say “say this”. But it doesn’t have to happen like that (and probably very rarely does). I imagine - and you can probably fill this in - that the prosecution talks in generalities in such cases. As in “we might be able to be more lenient with you if we see that you are sufficiently remorseful and cooperative with our ongoing investigation”. Of course, the witness/codefendant knows what they mean - they think that the Big Guy did it, and if he says anything else he is obviously not cooperating with the investigation. But it’s unlikely the prosecution is going to be harmed if the witness lies to get in their good graces. “We suborned perjury??? Heaven help us - it was the furthest thing from our minds!!! This person proffered to testify to this and we merely allowed him to testify”.

I didn’t offer this as a criticism.

You made the point that a prosecutor would be foolish even from a self-interest standpoint to bring charges that he knew were false, and my response is that they would be biased to convince themselves that they’re true.

Bringing false charges didn’t work out so well for Nifong in the end, but at the outset it seemed like something that would help him quite a lot, and he probably believed in his case and wasn’t particularly motivated to see the other side of the story.

96

Ever done any actual criminal legal work, F-P?

Your imagination of how it works has no better better basis for conforming to reality than my imagination of how surgery works. Sure, I can conjure up ideas of what I think it might be like, but they are not logical deductions or anything close. I will have missed huge things about the process that my imagination hasn’t allowed for, and I won’t have a baseline experience of what is “normal” to test my imagination against.

And relying on casual reading of media reports for your understanding of the inner workings of the criminal justice process is like relying on media reports for your understanding of the inner workings of surgery.

97

Not so, all they have to show is reasonable doubt. But for example, if your DNA is not that on the murder weapon, you might have been the accomplice.

98

To convince a judge to reverse a jury’s lawful conviction? Drawing on all the legal TV shows I’ve watched, I’d have to imagine that the bar is set quite a bit higher than that.

99

Reasonable doubt in the original trial. Once a conviction is in getting a court to reverse that seems an uphill battle to put it mildly.

See the fun this guy has had trying to get DNA testing that would seemingly exonerate him.

Looks to me that “reasonable doubt” is nowhere near enough after you have been convicted.

100

I don’t think this makes sense, in one respect. If you are factually innocent because you didn’t commit one of the elements of a charge, how can you not always also be actually innocent?

Are you saying that someone who commits an element of an offence is not actually innocent, even though they haven’t committed a crime? I would have thought that all the elements of a charge are there for a reason, and if they haven’t all been committed, there is no crime.

I appreciate that in many cases someone won’t have committed all the elements of one crime but what they have done would have constituted some lesser crime, but your definition of what you are talking about seems broader.