Criminal Defense Lawyers and the so-called Innocence Myth

Back in April the Wall Street Journal had a couple opinion pieces about criminal law and criminal defense lawyers. The first stressed the role of defense attorneys in the Duke Lacrosse "rape" case. The second was by a Colorado District Judge, Hon. Morris Hoffman, who discusses what he calls (and the article's title) The Innocence Myth, from 4/26/2007. I'll rip that one apart first.

The big quote that stands out to me, enlarged by the editors, is: "Despite the hype to the contrary, wrongful convictions are exceedingly rare." Hoffman argues in this piece that the wrongful conviction rate is low, and so the criminal justice system is actually working quite well.

Regular readers will not be surprised to read that I have a different opinion. First and foremost, wrongful convictions are not the only problem in the system. I have had several clients acquitted on criminal charges, mostly in grand larceny cases. They were not wrongfully convicted. However, they were wrongfully accused, wrongfully prosecuted, and they suffered greatly from these wrongs. One spent about 30 days in jail, away from his wife, two young kids, and his parents and grandmother. And his family all suffered too. The process cost him in the ballpark of $10,000 when you include lost wages and other expenses. Some of my other innocent clients have spent time in jail, and they all lost a lot of money. At least two of the others spent in the $10K ballpark. One spent almost that much just on bail bonds. The "actually innocent" defendant who wins usually has no remedy in trying to recover what they lost in the process. Meanwhile, the police, prosecutors and prosecution witnesses who wrongfully accused and prosecuted the defendant generally face no consequences for their actions.

I should also mention that many of the "correct" convictions are for things that shouldn't be crimes. We have overcriminalized our society so everything is a crime now. I could go on forever about the drug war, but I've done that before (see my other blog's post about wasting money on the War on Drugs). There's more than that. If you call someone on the phone or e-mail them and say mean things to them, that's a misdemeanor aggravated harassment in New York. I've seen this one charged far too often. Then there's Aggravated Unlicensed Operation - when you are caught driving on a suspended license. Someone told me this used to be an infraction but was raised in severity to a misdemeanor sometime in the last 10 years. In most cases these drivers do not even know that they were suspended, because DMV sent the suspension notice to an old address. This is still the driver's fault because they have a duty to notify DMV of their new address, but I just don't see it as a crime. I'm not alone. Most prosecutors and judges sympathize and we are generally able to get good deals for our clients on these. But some judges are different and some people just plead guilty and get a criminal record.

As for the issue of wrongful convictions, in my own limited experience many police officers lie as a matter of course (and many do not). Some prosecutors (but not very many) lie and cheat to get convictions. Many judges are transparently biased against the defendant (and many aren't). I have seen judges - even lawyer-judges, and even judges I like - protect cops who slip up and get caught by a defense lawyer in a lie. My clients are represented by a well-paid lawyer who has a lot of trial experience (though with an undeservedly large ego). My clients can generally afford to hire investigators and/or experts where appropriate. With these resources, the innocent defendant has a good chance of catching the police and/or other prosecution witnesses in their lies, and otherwise of exposing and demonstrating the weaknesses of the prosecution case.

Many defendants are represented by lawyers who are not well-paid and who do not have as much trial experience - or in some cases just not good trial experience. These defendants generally cannot afford the investigators or experts necessary in more complicated cases.

Turning to Hoffman's analysis, there is this delightful bit in reference to the Innocence Project and the 200th person exonerated by DNA testing: "But in the 20 years innocence projects have been operating, there were roughly 2 million criminal trials in the U.S. Assuming as many as 25% of those trials resulted in acquittals ..., the wrongful post-trial conviction rate is only 0.013%. Since only 5% of cases are tried, that wouldd place the overall wrongful conviction rate at around 0.00065%."

In case the math is unclear, taking out the 25% acquittals leaves 1.5 million trial convictions. Divide the 200 exonerated by 1.5 million and you get 0.013%. I checked it on a calculator.

Um ... well maybe only 200 have been exonerated by DNA testing, but that doesn't mean only 200 were actually innocent. I don't have inside info on the budgets for the innocence projects, but I'll bet they haven't examined every one of the 1.5 million criminal trial convictions over the past 20 years. Oh, by the way, the vast majority of criminal trials do not involve DNA evidence, so the innocence projects can't exonerate the defendants in those because there's no DNA testing to be done. The point of the innocence projects is that where there's smoke, there's fire.

There's also Hoffman's casual analysis of plea bargaining. At one point he points out, correctly, that almost all criminal defendants plead guilty (referring to plea bargains). He says 95% and that sounds about right. His purpose in pointing this out is his unstated assumption that people who plead guilty to something were guilty. In Hoffman's world, an innocent defendant would never take a plea bargain.

Then in a later paragraph he says the following: "Exaggerations about the unreliability of the criminal justice system ... threaten to become self-fulfilling. ... A widespread belief that the system is hopelessly unreliable will only encourage innocent defendants to plead guilty to lesser offenses."

Judge Hoffman apparently never represented an innocent defendant. The article doesn't mention any criminal defense experience. I checked his bio on the web just now and found this: "Prior to his appointment, he was in private practice in Denver, specializing in commercial litigation, real estate and bankruptcy law." He majored in math too. :-)

The system does not have to be hopelessly unreliable for an innocent defendant to take a deal. A rational innocent defendant facing a low-level felony charge with a maximum of four years in state prison would easily take a misdemeanor deal with no jail time and 3 years probation if he thought the system was only slightly unreliable. Add in the cost of a full trial at, say, $20,000 versus getting the plea deal for $2500, and assume the innocent defendant doesn't happen to have $20K lying around, and you can see where this is going.

My favorite quote of all is, after he makes a different set of assumptions, he figures that "the overall post-conviction wrongful conviction rate would still be only around 1%." Only? ONLY???? Forgive me for my bias in favor of innocent defendants, but a 1% wrongful conviction rate is absolutely horrible. Combine it with his estimate of 25% trial acquittals, and you have an awfully large number of people suffering horrendous consequences from a rotten system.

To end this post on a positive note, I turn to Professor Randy Barnett's "Three Cheers for Lawyers" in the 4/17/2007 WSJ. There are a number of great quotes in his article, and I'll just list them below:

"In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages."

"Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone."
--I would add to this my lament that prosecutors never get asked how they can live with themselves prosecuting those innocent of serious crimes.

"The mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases before anyone is charged."
--Sadly this one is not true in my experience. Prosecutors around here are generally not involved in the charging stage and, with no consequences for wrongful prosecution, they would not be deterred anyway. The good ones don't need to be deterred - they don't want to prosecute weak cases because they don't want to waste their time and they actually care about the innocent.

"Notwithstanding the legal 'presumption of innocence,' in a system that generally gets it right, there is a pragmatic presumption of guilt. Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence."

"The difficult problem of innocent defendants typically arises in run-of-the-mill cases wehre prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyers, an indifferent press and an oblivious public."

One quick comment about this. If you're charged with a crime, are you going to look for the least expensive defense lawyer you can find? As one of my favorite defense lawyers puts it: "No one looks for the cheapest heart surgeon."