Saturday, February 28, 2009

Dan Abrams and the Presumption of Innocence

I just read this op-ed piece by Dan Abrams in the Wall Street Journal. He responds to criticism about media ignoring the presumption of innocence. In one sense he is correct -- that the presumption really applies to juries. The general public is not required to presume someone innocent. But his characterization of the criminal process is what got me.

My favorite quote is this one: Essentially we stack the legal deck in favor of the defendant.

Um ... no. That is a gross mischaracterization. Anyone who's dealt with a traffic ticket knows it's not true. Let's talk about how the deck is really stacked. For starters, let's take the appropriate perspective. Imagine you, the reader, are the defendant.

1. Lawyers
The prosecution gets a team of lawyers. In New York State this is known as the District Attorney's office. An Assistant District Attorney will be assigned to your case. The government pays for the prosecutor in every case, meaning that at least in a small way you pay for their lawyer. The ADA has access to a wide variety of resources (such as experts and investigators).

You can get a lawyer too. If you're poor you get a public defender, though only for crimes. DWAI is a great example of a case where you don't get a PD. They're paid less than the ADA and have more cases to handle. The PD will spend a very small amount of time on your case until trial, and will usually encourage you to take some kind of deal. Keep in mind that there are some great public defenders out there, but you might not get one of those. The PD usually has substantially less resources than the ADA. If the PD needs something unusual he may have to apply to the judge for the money. The ADA doesn't need the judge's permission for any spending.

Or you can hire a lawyer. It costs a lot of money. Your lawyer will probably be more experienced than the ADA and be able to devote more time to your case. You do not get your legal fees back if you win. Your lawyer has access to a wide variety of resources, but you pay for everything.

2. The Judge
In my experience, many judges (but certainly not all) will treat you as if you're guilty from the get-go. I had one case where my client, whose case was eventually dismissed, had bail set at $90K. His family spent something like $7K to get him out of jail. The bail was completely unreasonable for his circumstances -- a minor felony charge with dubious facts against a local guy who was married with kids, owned a home, and had a state job. He should have been released without bail.

The judge makes a number of critical decisions both before trial and at trial. One key area that stands out is whether your constitutional rights were violated. This is addressed at a suppression hearing, if the judge decides you get one. Here's the thing - police lie sometimes at suppression hearings. In my experience, a lot of them lie a lot at this stage. Usually it's not deliberate lying, but more a situation where they don't really remember all the details and they fill in the gaps based on their paperwork. But this usually leads to them getting the facts wrong and then getting caught in lies.

Imagine that. A police officer is caught lying in a situation regarding whether he or she violated your constitutional rights. Sounds like a no-brainer, right? The judge should find that your rights were violated and suppress the evidence. For whatever reason, many judges seem to find police officers credible no matter how obvious the lies. This isn't necessarily conscious. The judge sees these police officers frequently. He's never seen you before this case. In many courts the judge is protected by that police force. So many of the local courts are located in the same building as the police station.

I had one case where I actually had my client and a witness testify at the suppression hearing. The officer had testified very poorly about his reason for stopping the vehicle -- no visual estimate of the speed and no radar. He said my client was weaving in and out of traffic -- then admitted on cross that he had changed lanes twice in a span of well over a mile. The officer claimed my client had made an unsafe start, spinning his wheels when a light turned green. My client testified that his vehicle has traction control, making the idea of an unsafe start essentially impossible. Somehow the judge upheld the stop.

3. Timing
In many ways, the prosecution controls the timing of your case. Many defendants are distressed about how long their cases take. Your constitutional right to a speedy trial is a fiction. I've got one DWI case that has been going for more than a year. His license has been suspended the entire time. The judge denied our speedy trial motion. If my client had pled guilty he would have been suspended for 90 days.

If the prosecutor wants to move the case slowly, there's little the defense can do about it. On the other hand, if the prosecutor wants to move fast there are situations where this makes it difficult for your attorney to prepare your defense. With the wrong judge, you're out of luck on that.

There's plenty more on this but I'm running out of steam. The good news is, in my experience, juries are pretty fair. They don't get to decide on your constitutional rights, but if you catch cops lying then you're in a good situation. The problem is that you'll end up spending well over $10K in most cases to get through a jury trial. And you don't get that money back.

One thing underlying Dan Abrams' article is the widely held notion that nearly all defendants are guilty. I might go with most, but not "nearly all". And it really depends on the kind of case. Unfortunately I think the general public is on the "nearly all" view. That changes when they, or their kid, gets arrested. Too late.
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