After 35 years practicing criminal defense, I am sometimes cynical about our system of justice. Prosecutors overcharge offenses in an attempt to prompt a plea from defendants. Defendants are seldom “presumed innocent” in the eyes of the arraigning judge, many of whom impose restrictions on pretrial release that are as onerous as the penalty for the crime they have not been convicted of. And juries! Don’t get me started! Jurors are too tough to read when you start the trial – many want to be on a jury as part of their “duty” to protect society.
So when I read a NY Times article this morning that indicated a record number of inmates were determined in 2015 to have been wrongly convicted, I would like to say I was surprised. I was not. It reports that at least 149 inmates were cleared last year, and those inmates had served an average of 14 years behind bars for crimes they did not commit.
This is timely for me because last week I spoke to two potential clients about serious felony matters that might land them in prison for life. Life. One of them said he wanted to wait and see how good the state’s case was before spending money on a lawyer. Did I mention he was facing life in prison?
Just how is it that so many people have been convicted of crimes they did not commit? Here are three reasons that I believe account for most of those convictions.
First, science is now catching up with the evidence from these older cases. A defense lawyer today can have evidence tested for DNA in ways that simply were not available or affordable fourteen years ago. The same is true with false confession evidence, and misidentifications. There are expert witnesses available today to assist in the defense, and there is, I think, a greater opportunity available to get to the truth.
Second, when confronted with a potential monster sentence, many defendants cave. Most cases are settled. Hardly anyone goes to trial because prosecutors are happy to overcharge and then offer a plea bargain for a lesser crime, and recommend a lesser sentence. But beware the promises of prosecutors. Too many times those recommendations are of no assistance with judges who are eager to protect society. So a defendant is charged with rape, facing years in prison and a life of registration as a sex offender. He or she is offered a plea to felony injury to a child, and takes the plea to avoid a life time of prison. Later, the defendant tells a second lawyer that he or she pleaded guilty, but is actually innocent. False confessions happen, but getting that exoneration later is unlikely.
Third, there are too many lawyers who advertise they have serious criminal trial experience but do not. Clients get drawn in by inexperienced counsel who may have never actually tried a similar case. Experience matters. Ask that lawyer you are about to hire if he or she has actually been in a jury trial for your type of case. If the answer is no, keep looking.
Imagine spending 14 years locked up for a crime you did not commit. Or even 1 year. That news is sobering. The NY Times piece is worth the read.