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The Problem of Innocence

By on Jan 27, 2017 | 0 comments

Innocence is the worst.

Now don’t get me wrong, innocent people are great. Unlike some people in the criminal justice system, they committed no crime. We can’t say that about everyone involved in the system.

But for me and my work as a criminal defense attorney, I have a real problem with when I work with innocent people, because that means an innocent person was charged with a crime. When an innocent person is charged with a crime, it means something has gone wrong.

The dirty secret of the criminal justice system? Innocent people are charged with crimes all the time!

And then it falls on my shoulders to take a bad situation (innocent person charged with a crime) and try to stop it from turning into a tragedy (innocent person convicted of a crime). That’s a lot of pressure! Stupid innocence. 

To be sure, it is literally my job to defend people charged with crimes. And I really, really like my job. And I think I’m pretty good at it. 

But innocent people, those poor guys, are in a nightmare scenario. The system has already failed them. They were arrested. They may have spent some time in jail. They had to hire a lawyer. And they definitely have to keep coming to court, being reminded over and over again of the nightmare, until the case is over.

When will it be over? Maybe when the case gets dropped. Or maybe when they plead guilty and admit to doing something they didn’t do. Or maybe when a jury of their peers says they’re guilty of the crime!

The sense of powerlessness, of the monstrous  gears of justice grinding you into a fine powder, is just overwhelming. Where do I come in? Now I am the one tasked with throwing a monkey wrench into those gears until the innocent person is safe and free. There is no one else.

I had a couple memorable cases with innocent people recently. In the first the person asserted his trial rights and faced his accuser. The accuser’s story was full of holes. The police investigation was incompetent to the point of being laughable. The jury found him guilty.

In the second I dug up records, pointed out holes in the accuser’s story, and found many, many weaknesses with the police investigation. We set the case for trial there but the reasonable prosecutor, realizing the serious problems with his case, just dismissed everything.

I wasn’t happy after the first case. The system, me included, had let my client down. The process designed to protect people was perverted and punished an innocent man. After the second case? I was happy because my client was happy, but it felt like of course the case was dismissed, like it was inevitable. Of course the prosecution’s case had problems, they accused an innocent man! Can I be that pleased when there shouldn’t be any other result but dismissal, when there shouldn’t have been a case in the first place? 

I don’t like innocence because the wins feel like steering things to their natural conclusion. And the losses really sting. 

Now guilty people? They’re great. I can do two very important things with guilty people: Point out the abuses of the law from the government, and tell my client’s story. 

Government abuses? We give the government money and guns and jail cells. All we ask for in exchange is they not abuse the enormous power and trust at their disposal. Our society says government overreach is a worse act than any crime a person is charged with, because an individual crime is not as bad as tyranny. So when the government overreaches and violates the law in order to obtain a conviction, the conviction instead does not happen. We recognize we have no right to ask citizens to play by the rules if the government can’t do the same. If you hear about some scumbag murderer getting the smoking gun thrown out of the case, it happened because the government didn’t want to play by the rules.

If I have a client who is being prosecuted because of government overreach, like being stopped in their car for an illegitimate reason or having their home searched without a warrant, I’m extremely comfortable saying “The evidence is tainted. They don’t get to cheat. This case should be thrown out.” And oftentimes it is.

The reality to my job is if the person is actually guilty and the government didn’t break the rules, the person is probably going to take some punishment for their crime. And to be honest, this is a common scenario. But I can still do something helpful. I can tell the story of why this crime was such an aberration, why this person is a worthy citizen, and why their punishment should be no more than necessary to ensure they learned their lesson and it won’t happen again. I really like my clients, so it’s not hard to make this kind of argument. 

But jeez, innocent people. It feels weird to say the government overreached to get incriminating evidence when there isn’t any. Most innocent people are charged with crimes because of someone else’s mistake, e.g. in identification. Sometimes lab results will get mixed up but again, not really breaking the rules, just a mistake. There are more dramatic scenarios like framing someone, but that’s relatively rare.

Also, the innocent person’s story? It feels weird to say someone deserves a gentle sentence because of their character, when their character was never an issue in the first place, because they’re innocent! I have made this argument before, and frankly it goes well because my indignation in the whole process comes through, but it’s still not fun for anyone. 

In 1760, legal philosopher William Blackstone wrote “It is better that ten guilty people escape than one innocent person suffer.” I believe this and our system is built on it. That’s why, theoretically, the burden for obtaining a criminal conviction is so high. That being said:

The other dirty secret of the criminal justice system is that innocent people are in jail right now!

And this is a problem for me, because 1) our society suffers when innocent people are punished, 2) as I just said professionally representing innocent people is a drag, and 3) there but for the grace of God go I.

I have given the question of innocence a lot of thought over the years and I have some ideas on why this tragedy does happen. This is idle speculation so if you, dear reader, have thoughts and opinions of your own please leave a comment below. I do urge you to think about these things the next time you’re called for jury duty, or your friend or family member gets charged with a crime, or you (if you’re so empowered) get to press charges against someone else.

Why Innocent People are Charged and Convicted

1) Faith in the system

Hey, I love the law. Everyone has their own subjective morality, so it falls to the law to keep society functioning. It’s the constant we all live under, regardless of our personal beliefs. It lets peasants sue presidents and lets us resolve disputes through words instead of combat. 

Buuuuuuuut, the laws were written by people and are applied by people. The laws you and I live under were not given to us on stone tablets on Mount Sinai. They were written by human beings, just as smart and just as flawed as everyone else. And they are applied by hard-working-but-flawed people. People, you and me and everyone else, make mistakes.

However much I love Law, there are really dumb laws out there. I even wrote about some. Respect for the law doesn’t mean worship. If it’s produced or applied by a human being, it may be wrong.

And our founding fathers knew this. The entire purpose of the jury system is to be a check on the error-prone or self-interested government agents, to make sure the conviction of every defendant is correct. A lot of potential jurors, and sadly some actual jurors, seem themselves as deputy cops, the last step in their role in putting away the bad guys. This is deeply, deeply incorrect. Our system needs critical, objective eyes. Rubber-stamping what the government says is an affront to our system of justice. The system makes mistakes sometimes. It’s ok for an ordinary person to say “Mistakes happen. You haven’t convinced me beyond a reasonable doubt a mistake didn’t happen here. This defendant should not be convicted of this crime.” 

2)   Just-World Hypothesis

Speaking of deifying the system, a real common philosophy is the Just-World Hypothesis, or “Good things happen to good people and bad things happen to bad people.” Again a very common idea: This person wouldn’t be a defendant unless they did something bad.

Nope. No. No.

Sometimes bad things happen to good people. Like an innocent person being accused of a crime! Really, it happens!

The solution is the same: don’t rubber-stamp, don’t assume everything is as it should be. If you’re a juror, take a critical eye to the process. If you’re just a family member, don’t assume your loved one who is protesting their innocence is lying. We don’t do guilt by association and sometimes people are in the wrong place at the wrong time. Sometimes the government does really unjust things.

I’m not going to fill this space with links to examples of injustice. I’m just going to post one.

This is a long article, but if you haven’t had the chance I urge you to read it all. The story of Cameron Todd Willingham is the story of a man whose wife and daughters died in a house fire. He was then arrested for setting the fire, spent 12 years in prison, and was then executed by the government. He was innocent of everything. I don’t know anyone “bad” enough to deserve that kind of cut-short life.

No, it’s just that sometimes truly awful things happen to innocent people. Mr. Willingham’s story is a story of complicity, of no one with the power to do so holding up a hand and saying “This isn’t right.” It’s uncomfortable for us as human beings to imagine tragedies befalling those who don’t “deserve” them. But as citizens, we should be comfortable being uncomfortable. Better that than innocent people being put to death so we can sleep easy at night. 

3) Trial is a huge gamble

Innocent people can be charged with crimes, but how can they be convicted? Sometimes it’s a failing of the trial process. And sometimes an innocent person pleads guilty because losing at trial carries severe consequences.

First of all, there are people who don’t read this blog. They may still have absolute faith in the system, and absolutely believe bad things only happen to bad people, and are very quick to vote guilty after trial. The innocent person knows this and knows he or she could lose at trial and face even higher penalties. So they look to a deal.

A deal is an agreement to admit the guilt of something in order to avoid the worst possible outcome. In Mr. Willingham’s case, prosecutors offered him life in prison for pleading guilty. Otherwise they would seek death if he lost at trial. Mr. Willingham turned that down. He lost at trial.

Speaking as someone who has done this a lot, the plea/trial decision is amongst the hardest my clients have to make. Accept undeserved punishment, or roll the dice and risk really severe undeserved punishment.

Are defendants wrong to take a deal when they’re innocent? Keep in mind for these innocent defendants, the system has already failed once, which is why they’re charged with a crime to begin with. Is a guaranteed month in jail better than risking years? It’s not a question I can answer. Every person in this terrible situation has to make the choice for themselves. But if you wonder how innocent people can end up in prison, the answer is there. They decided a little prison time was better than the possibility of a lot.

If this is an issue you care about, and you definitely will if you get this bad luck someday, The Innocence Project has a good website outlining more of the issue and things you can do about it. For our system, it’s a real problem.

Ultimately, no one exemplifies the valid complaints of the criminal justice system more than the innocent people. Until our system is so perfect that only guilty people are charged and convicted, everyone needs a zealous defense attorney to ensure their rights are protected, their story is told, and to prevent the government from getting away with overreach and mistakes. If you or someone you know is charged with a crime, guilty or innocent, feel free to give me a call.


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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.