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The tip of the iceberg?

A bedrock principle of the Anglo-American justice system is that it's preferable for 100 guilty men go free than one innocent person be convicted, and in the main we observe that.  Any criminal defense lawyer who's been doing this for a substantial period of time has his "guilty client" stories:  cases where he was fairly certain that his client was guilty, but where the jury acquitted.  In probably two-thirds of the cases where I've talked with the jury after an acquittal, they've told me they thought my guy did it, it's just that they didn't believe the state had proved it.

But any criminal defense lawyer who's been doing this for a substantial period of time also has his "innocent client" story.  Mine's about a guy named Derrick.  I represented him about 30 years ago in an arson case.  There was no question in my mind that it was a case of mistaken identity, but I was fairly inexperienced, and had a bad judge.  Derrick got convicted, and got the maximum 18-year sentence.  I can't tell you how many times I've wondered over the years whether that was because I screwed up somewhere during the trial.  That affects you a lot more than the "guilty client" stories, and it should.  The notion of a guilty person escaping punishment is upsetting, but the idea of an innocent person spending years in prison for something he didn't do is outrageous.  The thought that you might have contributed to that is a painful one.  It's for that reason that most defense lawyers regard the worst client to have is an innocent one.

So just how many innocent people are convicted?

Some folks at Michigan Law School and Northwestern University School of Law tried to put a number on that by creating a "National Registry of Exonerations," which purports to list all of the people in the U.S. who've been exonerated in the past 23 years.  That number is 890. 

Now, if you're like me, the first reaction to that was, "Wow!  That's a lot of people!"  Your second reaction was, "Wow, that's not a lot of people."  Keep in mind that well over a million people are convicted of felonies in the United States every year, and this registry covers 23 years.  Even if you only include trials, and use the figure that only 5% of felony cases go to trial, you're still left with about 20,000 convictions after trial each year, or 460,000 for the period of the registry.  That works out to a wrongful conviction rate of less than .2%.  (And you probably shouldn't limit it to trials; the registry notes that of the 890 exonerations, 71 came in cases where the defendant had pled guilty.  Including pleas would make the wrongful conviction rate that much smaller.)

But before everybody dons the party hats and rejoices at the seemingly small number of innocent people we've convicted, reality intrudes:  these are the ones we've found.  After all, obtaining an exoneration after a guilty verdict is a huge hurdle.  Once the trial is over, the focus turns from whether the guy did it to whether he received a fair trial.  That's highlighted by a recent case I mentioned, Robbins v. Texas, where the Supreme Court was asked to review a case in which Robbins had been convicted of capital murder, only to have the medical expert who'd given the testimony against him recently concede that recent developments in forensic science rendered her unable to stand by her trial testimony.  Obviously, Robbins' chances of being convicted at trial would have been substantially reduced if the expert gotten on the stand and testified that she was unable to render an opinion as to the cause of death, but that was then, this is now:  the Texas court had no problem affirming Robbins' conviction, and the Court denied cert. 

Time and other procedural bars, the fact that a defendant must usually depend upon his own or his family's resources to even raise the issue, are also factors which greatly increase the difficulty of obtaining an exoneration.  And then there's the crime.  It's much more likely that a group of law students will be willing to get involved in ferreting out evidence of your innocence if you were convicted of a high-profile crime where the evidence generated controversy as to your guilt.  If you're sent to prison for your sixth burglary, your chances of getting someone to take another look at your case to see whether you actually did it are nil.  That doesn't mean that there's hundreds of thousands of innocent people sitting in prison.  It does mean, though, that there are more than 890.

Taking a deeper look at the stats, and at the press release about the registry, reveals some interesting facts.  Over 14% of the exonerations involved defendants convicted of crimes that never occurred.  In fact, the exonerations in child sex abuse cases almost entirely involved fabricated crimes.  In about the same number of cases, the defendants confessed to crimes they didn't commit.  One other thing:  in addition to the 890 number given above, there were another 1,000 cases which were lumped into the category of "group exonerations":  convictions that resulted from 13 separate police corruption scandals.  Usually, they involved massive planting of drugs and guns on innocent people, but more than 200 of them resulted from a single scam in which police officers framed people for drunk driving, and usually stole money from their wallets to boot.

Other than giving me an excuse to spend my time wandering through a database looking for interesting factoids, rather than do that brief that keeps telling me it's going to write itself, what is the purpose of the registry?  It specifies a number for wrongful convictions, but it's one that we all know has no relationship to the actual number.  It gives the cause of those wrongful convictions, but it's the Usual Suspects:  mistaken eyewitness identification leads the list by a substantial margin, with bad science, bad cops, bad prosecutors, and bad defense lawyers making up the rest of the field.  The number of wrongful convictions might be expected to decline in the future; about half of the exonerations are attributable to DNA evidence, and DNA testing is obviously far more routine and rigorous than it was even ten or fifteen years ago.  Then again, that's more likely to happen in rape cases than in robbery offenses, where DNA is not commonly found.  Maybe it'll make everybody -- or at least the key players:  judges, prosecutors, and defense attorneys -- more cognizant of the possibilities of false convictions.

Me?  It made me think about Derrick.

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