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.

Criminal Defense: Some of our clients are criminals

A few years ago I did a post about representing innocent clients in criminal defense cases.

The other day I spoke to the Pre-Law Association at U Albany. One of the stories I told them (which I'll go into another day) involved the most criminal client I've ever represented. This guy was the opposite of innocent.

Sometimes we represent innocent clients. They really didn't do anything wrong. It happens, and more than I would have thought. The police make a lot of mistakes, and quite a few people who are arrested really are innocent. The innocent client stands out from all other clients in one key way. Guilty clients want to know what kind of deal we can get for them. It's one of the first questions they ask. Innocent clients never ask that question. In my experience these are the cases most likely to be fought.

Then there's the clients who did what the police said, but they're not what I would call criminals. These are mostly good people who either had a bad day, or have a mental health problem, or did something that shouldn't be a crime. They're not deliberately trying to do something wrong. This is what criminal defense lawyers see most of the time. And we mostly get them deals.

Going up the scale, sometimes we get clients who are ... well ... criminals. They know exactly what they are doing. One example that comes to mind is the guy who was stealing from supermarkets. He had a plan for how he did it, and I'm pretty sure he'd done it before. While he was a criminal, he still had some redeeming qualities. He worked well with us. He was respectful to the Court and the police. He had a "partner" in his crime and they were loyal to each other. He understood why he had been arrested and that the consequences were fair. I'm not saying I'm inviting the guy to my house for a party or anything, but I wouldn't be afraid to see him on the street or worry that he'd hurt someone. I even think there's a good chance this experience will straighten him out. But there's also a pretty good chance he'll steal again. Just my opinion. These garden-variety criminals mostly obey the law, and mostly respect society's rules, but they sometimes break the law, do it on purpose, and are trying consciously to get away with it.

We represented another guy who had a more serious criminal history. He was charged with a fairly minor crime for most people, but because of his criminal history he got a significant prison term. This guy came from a part of American culture where going to prison is just a part of life. He was very matter of fact about it. Like the shoplifter, he was respectful to everyone in the process. He was really a pleasant fellow, and we actually liked him.

Then there's Mr. X. He was the worst. I'm pretty sure his behavior was partly influenced by a substance abuse problem, but there was something more. Much more. He did not work well with us at all. He lied and lied more. He was extremely disrespectful to everyone involved, even to the person who paid my fee.

We are all, to some extent, self-centered. I'm probably worse than average on this (people who know me well will laugh hysterically at this understatement). Mr. X was the most self-centered person I have ever met. No one else mattered at all. The world is his candy store and everything we work for is something he'll just take without asking or paying. In the wrong circumstances you better not get in his way.

With all that in mind, I'm still a criminal defense lawyer. I fought hard for him. Thanks to some problems with the police work, compounded by a massive error by one officer at one stage, we had a real chance of winning the case. And then our client did something that sank him, and he took a deal.

At sentencing, I did my best as well. There was not much to do since there was a plea agreement. But the judge had some discretion because of some things that had happened. I argued for him the very end, passionately. The client got a lengthy prison sentence according to the deal. I didn't say what I really thought. The sentence wasn't long enough. I wouldn't want this guy to ever get out.

His crime was nowhere near what might get someone a death sentence in the US, but the experience gave me a new perspective. I am personally opposed to the death penalty in its current form. In the past I was opposed to it completely.

The problem with the death penalty is that the criminal process is not trustworthy. We will execute some innocent people. Police make mistakes, and yes, some will lie to get a conviction. I don't think it should be about the individual offense.

The death penalty (if we're going to have one at all) should be about the defendant. When a defendant has crossed a certain threshold, say three serious felony convictions, then maybe that should open the door to the death penalty. The defendant would be examined by expert witnesses both for the prosecution and the defense. Each side makes an assessment about him - there's probably a better way of phrasing this, but the standard would be: "Is this guy ever going to be worth a shit." Okay, maybe in nicer terms: "Is there any hope that this defendant will ever be a productive and honest member of society." Let a jury of twelve decide that one.