Megan McArdle is confused:

The more important question, I think, is why the rest of us don’t spend more time worrying about false convinctions. What I’ve read about the Jeffrey MacDonald case, for example, makes it clear that at the very least, prosecutorial misconduct and dubious forensic testimony played some role in his conviction. This should bother us whether or not he’s guilty, since presumably the kind of games the prosecutors played with the evidence have been inflicted on other, less notorious, defendants who may have been innocent. Yet there’s been little interest from any quarter.

I inadvertently came across an answer to this question when writing the novel last year. A conservative politician named Neil was explaining to his old friend (the narrator) how he became a staunch social conservative over the years. I’ll put an excerpt below the fold, but the long and short of it is that Neil used to be a public defender and came to the conclusion that whether his clients were guilty or not they were usually failures in the system. The wrongly convicted man usually isn’t the banker you see on TV who stumbles across his dead boss and touches the knife and body trying to figure out what happened. It’s more often going to be someone with a long rap sheet that’s been in and out of the system for years. They were people that nobody had any reason to believe.

I think that by and large we don’t see ourselves as being in the position to be wrongly convicted. There is probably an implicit assumption that those that were wrongly convicted were guilty of something or had made poor life decisions that made them look guilty. We believe that police and prosecutors, while they may not always get the right guy for the right crime, only go after the bad guys. We don’t see them going after us. We don’t see prosecutors fudging facts in pursuit of us. We see ourselves behind them, pointing our finger at the miscreant, saying “tut, tut”.

Our belief and faith is often misplaced. For the most part it’s not even conscious. We almost all agree that people being wrongly convicted is bad. We believe that those that have been wrongly convicted should be set free. I think that we’re often reluctant to admit that the system got it wrong in the first place and when we think of “collateral damage” of an imperfect system, we think a lot more of “their kind” going free when guilty than we do “our kind” being targeted.

Even to the extent that we concede, consciously or unconsciously, that innocent people are jailed and even innocent people that are like us from time to time, our chances of being falsely convicted are logically much smaller than the likelihood that we will be victimized by someone that the system cut loose. If we’re going to be negative impacted by errors in the system, it’s far more likely that it will be an error that allowed a guilty man to go free than an innocent man convicted.

Anyhow, below the fold is the dialogue that came to mind when pondering Megan’s confusion. A fair portion of the book is spent criticizing the character Neil and his beliefs. This is Neil’s attempt at explaining himself.

[Narrator speaking] “What I don’t understand. Well, one of the many things that I don’t understand, is what changed? Last night you half-described how you got where you are, but it all has to do with what happened years before we met. With all that happened, I don’t understand how you can align yourself with [Christian conservatives].”

[Neil speaking] “I do it because they were right and I was wrong. It killed me to realize it, but they were. Stubborn son of a bitch that I am, I held out for as long as I possibly could. The last straw was when I worked as a public defender.”

“Couldn’t stand defending their Constitutional rights?” I sneered.

He didn’t skip a beat. “Most of them were guilty, but some of I really don’t think were. I got some of them off and some of them I couldn’t. Surprisingly to me, whether they were guilty or not and whether I could get them off or not didn’t seem to have any correlation. That bothered me to no end, but I realized that for the most part they weren’t really in the spot they were in because of what they did. Even the innocent ones were guilty of a lot of things they weren’t caught doing.”

“That shouldn’t matter.”

“Maybe not, but it does. We’re doing them a disservice by pretending that it doesn’t. Almost none of the people I defended would have gone to jail if they simply had been doing what they were supposed to be doing before they were accused. If they’d stayed in school, not fathered children out of wedlock, saved sex for people that they knew, and not spent that time doing drugs, drinking, contributing to their rap sheet, and blowing all their money on all of those things, they wouldn’t have needed me to defend them. By the time they got to me it was already too late.”

“But sending them to prison would have helped?” I asked.

“Not by that point. It helped prevent future victims, of course, but of course it doesn’t help them. That’s the main reason I never became a prosecutor. I didn’t like the idea of kicking them when they were down. That’s why I joined the {a Christian conservative advocacy group}, to try to make a difference when it counted. Before they needed a public defender and before the public needed a prosecutor.”

“Well I’m sure that all made for an excellent campaign speech.”

“Oh, no, I try to play down my role as a public defender. It polls atrociously. I guess I owe that experience to you, though. Thanks to the money I made off {investing in the narrator’s company}, I could afford to do what amounted to charity work.”

“So I not only financed your congressional campaign, but I also set you on the road to being a conservative? Do you know how much money I’m going to have to donate to the Democratic Party to undo the damage that I’ve done now?”


Category: Courthouse

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6 Responses to The Innocent As Well As The Guilty

  1. Webmaster says:

    There are some pretty egregious cases out there of prosecutorial overreach and outright fabrications at times. Unfortunately, you’re right when you point out that there’s almost always *something* that can be pinned on someone.

    Famous case in point: Al Capone. They couldn’t ever get him for violating Prohibition, and couldn’t prove his money was ill-gotten, but by god they could put him away for over a decade for failing to properly send in his income taxes.

    We believe that police and prosecutors, while they may not always get the right guy for the right crime, only go after the bad guys. We don’t see them going after us. We don’t see prosecutors fudging facts in pursuit of us.

    Unfortunately, part of that is that so often, the guilty cry wolf. Prosecutors especially see this often; almost everyone who comes into court proclaims innocence unless shown overwhelming evidence. My one run-in with the law (a university cop writing a fraudulent “running red light” ticket on me and setting the court date deliberately when any out-of-state student would have been back home) showed me how it works, though; the assistant DA there wasn’t willing to look at the evidence, he was perfectly willing to take the cop’s word because his job wasn’t to see that justice was done but just to pad his resume with convictions. The more guilty or no-contest pleas he got (if you pleaded no-contest, you could take drivers’ ed and get an automatic expungement via the “deferred adjudication” statute), the better his record looked. He simply wasn’t interested in letting people go, even knowing that the cop was dirty, because it didn’t look good in his record.

  2. trumwill says:

    Your last paragraph is one of the cornerstones of our adversarial system. Determining justice is not the prosecutor’s job (nor the defense attorney’s), it’s the judge’s and the jury’s. The defense attorney’s job is to give every benefit of the doubt to his client and the prosecutor’s job involves giving the cops the benefit of the doubt. The two go against one another, and hopefully the judge and jury sort it out. Both sides have rules that they must abide by, but their role in the system is not to determine what is or is not just. If there is ironclad proof of the accused’s innocence, that would be brought up in court so the prosecutor likely wouldn’t pursue. In the case of an ambiguous situation, though, the prosecutor backs up the cops and the defense attorney backs up the accused.

    The question is what are we, as citizens and potential jurors supposed to believe? That’s where McArdle is confused because we shouldn’t share the prosecution’s motives (or, for that matter, the defense’s) nearly as much as we seem to.

  3. Webmaster says:

    The problem with that statement, Will, is that it goes completely out of whack when you have (a) prosecutors bringing cases that they know are bad and (b) a situation in which the ability of the other side to mount a defense amounts more or less to “does the court take the word of the cop or not.”

    Face it – getting a lawyer to defend against a traffic ticket? You shouldn’t need to do that, and I’ve heard from friends and relatives of cases where the judge threw the book at someone because he was angry they’d “wasted his time” by insisting on bringing a lawyer and going through the process.

    And then there’s the ridiculously tilted systems in general; you’re allowed to plead guilty/no-contest by mail just about anywhere, but cops regularly hit up cars with out-of-state plates with imaginary violations in the hope that (a) it can pad their ticket quota and (b) it won’t be contested because the amount of the fine is far less than the cost of gas, vacation day, and travel to come back to contest it. In the case of more serious crimes, the prosecutor has the monetary backing of the system and criminal investigators to do all the work for him, while the defense on the other side is highly limited by the free time and budget of the defendant (further hampered by the fact that he’s either locked up awaiting trial, or out on bail with the bail bond eating up financial resources).

    The prosecutor is under an extra moral obligation not simply to bring cases to pad his record, but to look seriously at the cases and not bring the bad ones because let’s face it, the system IS tilted towards the prosecution from the start.

  4. trumwill says:

    Out of curiosity, what reason did the prosecutor have to believe that it was a bum ticket? I believe it was a bum ticket, but that’s because I know you to be an honest person and you’re telling me that it was. Did you have more than your testimony against the cop’s? Like you said, it usually comes down to the accused word against the cop’s. The former is lying far more often than the latter, so the prosecutor is going to more than likely run with it. Unless you had some proof that you didn’t run that light (and it’s hard to prove a negative) that the prosecutor ignored, then your beef is primarily with the cop that wrote the citation. The system pretty much depends on cops acting in good faith as far as that goes. That’s not ideal, but I’m not sure how it can be any other way.

    I’ve hired a lawyer for a traffic citation and my experience was completely different.

    I got two tickets over the span of two weeks a few years back and I could only take Defensive Driving for one of them. Anyway, I ended up hiring a lawyer for the second. I was guilty as sin, going 57 in a 45, though there was no reason for the speed limit to be as low as it was. Lawyers like the one I hired know all sorts of ways to invalidate a ticket. As often as not, they’ll just dismiss it because it costs them more to have a trial than they get out of the ticket and if the accused is lawyered up they know there’s a pretty good chance that they won’t win.

    It cost me $100, plus 15 minutes waiting outside the court and an hour transportation. There were a dozen or so of us there (the lawyer worked that out somehow) and all but 3 or 4 were cut loose without trial, including mine. Should you ever need a traffic lawyer, let me know and I’ll give you his name.

    As far as more serious crimes go, there are a lot more variables. If a cop says he saw the guy do it, though, as is the case with traffic citations, it’s most likely going to trial (unless the cop’s testimony is certain to be discredited). If the accused has a rock-solid defense (an alibi, personal handicap, whatever) then it’s probably not going to try because it probably won’t pad the prosecutor’s numbers. If prosecutorial numbers play a part in serious crimes, I’d say that it more likely goes the other direction: prosecutors don’t pursue charges because they’re less assured of victory and don’t want to hurt their numbers.

  5. Webmaster says:

    Out of curiosity, what reason did the prosecutor have to believe that it was a bum ticket?

    – Cop’s inability to properly write ticket (he got the year and model of my car wrong despite being handed the insurance paperwork with them printed right on it, and couldn’t even get the number of doors right, though he did correctly identify the maker).

    – Fact that the cop had called in “backup” to deal with a college kid who had pulled slowly into the nearest parking lot (~75 feet from the stoplight in question) and parked directly under a streetlight for him, then waited patiently with hands on the wheel and gave no resistance.

    Like you said, it usually comes down to the accused word against the cop’s. The former is lying far more often than the latter, so the prosecutor is going to more than likely run with it.

    After seeing Colosse PD and University PD in action, I’m not likely to trust that the cop is being honest any more, though I recognize that the prosecutor and (unfortunately) judge likely will.

    Unless you had some proof that you didn’t run that light (and it’s hard to prove a negative) that the prosecutor ignored,

    Well, that’s not how the system is supposed to work – you’re supposed to be innocent until proven guilty beyond a reasonable doubt. Regrettably, dirty cops writing tickets to meet a city’s income quota is an all-too-reasonable doubt and all-too-commonplace occurrence these days.

  6. trumwill says:

    The UPD (assuming that it was they that pulled you over) always calls for backup. I had a flat tire that an officer helped me out with and he called for backup.

    The fact that he’d gotten so much wrong on the ticket could be pretty significant, I’m not sure. The question I guess would be whether or not that is a technicality or indicative of a lazy and incompetent officer’s insufficient testimony. The prosecutor’s position may well be that that’s for a judge or jury to decide. I’m not sure whether that’s the right decision or not because I don’t know how legally important it is that the officer gets everything right on a ticket, but it doesn’t strike me as a particularly unreasonable or corrupt position.

    As for the “reasonable doubt”, I’m pretty sure that doesn’t come into play until the actual trial. When it comes to determining whether or not it goes to trial, there is a different threshold of proof. If a grand jury needed a “no-reasonable-doubt” threshold, I suspect very few people would ever go to trial.

    I can agree, though, that traffic court and the like seem to put a whole lot of faith into the cop/witness. This is particularly true when it comes to traffic court because there are all sorts of financial motives involves (that’s one reason I really like Delosa’s laws limiting civic revenue from tickets, though I wish they’d close up some of the loopholes).

    On the other hand, if there is a cop/witness to an alleged crime, more often than not I’m going to want the prosecutor to prosecute unless there is a stronger reason to believe that the witness is lying than the accused. Sometimes it’s enough to score a conviction and sometimes not, but I don’t want criminals going free when there’s a witness because the prosecutor has the notion that he must quash all reasonable doubt before it even gets to trial.

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