Why the Innocent Are Punished More Harshly Than the Guilty
posted by Daniel Solove
The AP reports on a really tragic case of wrongful conviction:
A man who died in prison while serving time for a rape he didn’t commit was cleared Friday by a judge who called the state’s first posthumous DNA exoneration “the saddest case” he’d ever seen. . . .
[Timothy] Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.
DNA tests in 2008 connected the crime to Jerry Wayne Johnson, who is serving life in prison for separate rapes. Johnson testified in court Friday that he was the rapist in Cole’s case and asked the victim and Cole’s family to forgive him. . . .
The Innocence Project of Texas said Cole’s case was the first posthumous DNA exoneration in state history.
The part of the story that caught my eye was the fact that Cole’s insistence on his innocence is what led to his imprisonment and prevented his release on parole:
Cole and his relatives for years claimed he was innocent, but no one believed them until evidence from the original rape kit was tested for DNA. Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole
This case illustrates how our criminal justice system punishes the innocent more harshly than the guilty. This phenomenon occurs because of several rules and practices:
1. The federal sentencing guidelines and sentencing guidelines in many states provide for reductions in sentences for “acceptance of responsibility.” The innocent defendant, who refuses to admit to the crime, will not receive this benefit.
2. An innocent defendant might often refuse to accept a guilty plea deal. When the innocent defendant defends his or her innocence at trial and gets wrongly convicted, that defendant will invariably receive a much higher punishment than that proposed in the plea deal.
3. An innocent defendant, by not admitting to the crime, might hurt his or her chance for an early release from prison.
These factors lead to the rather perverse outcome that defendants who are innocent are punished more harshly than the guilty. The innocent defendant faces a terrible choice — either falsely admit guilt, in exchange for a lighter punishment, or defend his or her innocence but pay dearly if he or she loses. Innocent defendants are probably much more likely to choose the latter strategy. Timothy Cole turned down a plea deal for probation because he didn’t want to confess to a crime he didn’t commit. That’s a decision made on principle, one that an innocent person might very well make but rather unusual for a guilty person to make.
February 7, 2009 at 2:29 am
Posted in: Criminal Law
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Responses (56)
Paul Ohm - February 7, 2009 at 10:06 am
If you think the AP report is tragic, you must listen to NPR’s compelling piece about this story. It adds several layers of tragedy to one’s understanding of what happened, because it highlights the tragic role race played, spotlights the egregious behavior of the district attorney, and, most chillingly, lets you listen to the voices of the victim, the actual rapist, and the family of the man wrongfully accused.
Excellent post, Dan, but what is the fix for the significant problem you identify? Do you think the problem outweighs the advantages of giving people benefits for acceptance of responsibility? Better, freer access to DNA testing would help, but aside from that, are you recommending we get rid of acceptance of responsibility benefits?
myiq2xu - February 7, 2009 at 10:14 am
Even if they are acquitted at trial their lives are often ruined anyway.
Daniel J. Solove - February 7, 2009 at 10:22 am
Paul,
In terms of solutions, I would advocate getting rid of acceptance of responsibility benefits. I would also advocate reforming the plea deal system so that there can’t be enormous disparities between punishments offered in a plea deal and possible punishments if a defendant chooses to exercise his or her right to go to trial.
I would also dramatically reform the trial process, which is not a particularly good truth-finding mechanism. The rules of evidence, for example, are based on false and long-disproven empirical and psychological assumptions. A big step forward would be reforming the rules regarding eyewitness testimony, which studies consistently show to be extremely unreliable. Certainly the studies that demonstrate its unreliability should be allowed at trial — they’re currently not. And perhaps eyewitness testimony should be excluded from trial if it is so unreliable — at least under certain circumstances.
We’re in the 21st Century and the law still uses slightly-updated medieval methods for determining truth. As all the DNA exonerations are showing, our criminal justice system is woefully inaccurate. It’s time we thought about how to reform and modernize it.
Patrick S. O'Donnell - February 7, 2009 at 10:27 am
Of course the plea bargaining process, in the context of unconstrained prosecutorial discretion and lack of procedural transparency, may also encourage innocent defendants to plead guilty, as you note in the “terrible choice” faced by the innocent defendant, and thus I wonder if there’s any evidence for the belief that “innocent defendants are probably much more likely to choose the latter strategy,” i.e., refuse to plea bargain and attempt to defend their innocence. (For the record, I’m not opposed to either plea bargaining or prosecutorial discretion.) This criminal justice quagmire is further exacerbated by the “growing public defender crisis,” well captured in the phrase “meet ‘em and greet ‘em and plead ‘em.” When indigent defendants are denied their constitutional right to competent/effective counsel, which has been more honored in the breach than observance since Gideon v. Wainwright (1963), it seems likely that not a few innocent defendants are being routinely punished…and then perhaps punished more harshly than the guilty.
On the routine denial of the right to competent representation, please see these blog posts (with links to several excellent articles by Monroe Freedman and others) at the Legal Ethics Forum: http://legalethicsforum.typepad.com/blog/2008/11/the-growing-pub.html
and: http://www.legalethicsforum.com/blog/2008/11/more-on-public-defender-funding.html#comments
Kay Sieverding - February 7, 2009 at 10:44 am
I was prosecuted by Elizabeth Wittemyer in Routt County CO, for a minor crime but showing the weaknesses of the system. There was no warrant, there was no arrest, there was no affidavit of probable cause. I pled not guilty and she dismissed the charges after 6 months. My lawyer asked for a statement of probable cause and she refused to provide one. The reason I think she prosecuted me was as a favor to the local city council president, Kevin Bennett, who built 3 buildings next door to me at 701 Princeton Ave that aren’t on the property tax rolls and violated the zoning. His wife requested my prosecution to cover up their extra 3 buildings. The prosecutors’ husband was a real estate developer with business benefited by the politician.
I sued the prosecutor for after dismissal conduct including her giving a press conference to say that my neighbor was my victim but a trial would be too expensive. That was assigned to Judge Naughty Nottingham. He put me in jail for engaging in pro se litigation. I can’t prove that he was bribed but the defense did bill for ex parte conferences with the magistrate and the judge was supposedly seeing prostitutes weekly at the same time. The Marshals used a fraudulent warrant and fraudulent papers to hold me. There was no evidentiary hearing. I did not plead guilty. The Marshals papers said I confessed to offense 5005. There is no 5005 offense. Their papers had fake case numbers.
Federal warrants have bar codes and electronic signatures and are controlled thru a special computer system. Judge Naughty Nottingham used a counterfeit warrant. It did not state an offense or offense number, was not requested by a government lawyer, didn’t have a warrant number, wasn’t accompanied by an affidavit of probable cause, and the official signature was the judge’s docket clerk.
Kevin T. Keith - February 7, 2009 at 12:38 pm
Note also that accepting a plea deal generally requires forfeiting the right of appeal. An innocent party thus loses any hope of ever clearing their name. Conviction, especially in felony cases, also results in forfeiture of many legal rights and benefits in many states, including voting rights, eligibility for government benefit programs, and the right to own firearms. And it is admissible as evidence of guilt in a civil trial, leaving one open to ruinous monetary penalties above and beyond the criminal sentence; the same would be true for an admission of guilt to qualify for parole.
So there are massive disincentives for the innocent to accept a guilty plea, beside the mere fact of . . . you know . . . being innocent. After stacking the deck so heavily against them, the system then crushes them for daring to try to evade all those ancillary punishments.
Alice Ristroph - February 7, 2009 at 1:11 pm
I second Paul’s recommendation of the NPR piece.
On this topic, today’s New York Times has a story on Everton Wagstaffe, who could leave prison on parole, but refuses to accept the conditions and is instead maintaining his innocence.
http://www.nytimes.com/2009/02/07/nyregion/07about.html?ref=nyregion
Brian - February 7, 2009 at 5:06 pm
Kay Sieverding,
You state that a judge “put me in jail for engaging in pro se litigation.”
That’s pretty strange.
What was the specific charge against you? Or were you jailed for contempt during the course of your suit?
Curious - February 7, 2009 at 6:46 pm
So I’m wondering just why it is that people who go to trial get stiffer penalties than those who plead. In other words, is it constitutional to penalize someone for exercising his right to trial?
Rob S - February 8, 2009 at 10:13 am
After this and the Duke rape case, prosecutors and the government they represent should be CIVILLY and CRIMINALLY responsible. The prosecutor should be sued until they have nothing and then get the same sentence as the person they persecuted. A few DAs rotting for life would be a nice deterrent for their incompetence or maliciousness.
Letalis Maximus, Esq. - February 8, 2009 at 10:16 am
Sounds like Kay was either in Chicago. Or the Deep South. In many situations, there is little difference.
One of the biggest problems the system now faces is out of control prosecutors/cops/those in the system and the doctrine of qualified immunity. Radley Balko and Glenn Reynolds (among many others) have written extensively on the issue. The real problem is that qualified immunity inches closer and closer to absolute immunity and it shouldn’t take a Duke LaX Rape Case Situation in order to get a rogue prosecutor held liable for his sins.
Cecilia - February 8, 2009 at 10:22 am
Here’s another wrongful conviction. Ronald Bower refuses to show remorse for a crime he didn’t commit and therefore cannot be paroled.
http://www.longislandpress.com/articles/news/671/
George - February 8, 2009 at 10:26 am
I would like to know if the victim claimed that this is the guy who raped her. There was a miscarriage of justice here but I don’t believe the sentencing guideline are the fundamental problem.
Elizabeth - February 8, 2009 at 10:45 am
Here is another case wrongful conviction. Steven Nowicki is still in prison.
http://jeffreydeskovicspeaks.org/articles/deskovicjan312008.pdf
Paul - February 8, 2009 at 10:45 am
There is no quality feed back loop for government bureaucracies. Matter of fact, that is how the Good Government movement of the late 1800’s designed it.
They are supposed to be unfeeling, uncaring, blind, machine like process.
So, what’s the complaint? Really? Why blame a system that is acting as designed and built?
Batter up!
Larry Hughes - February 8, 2009 at 11:09 am
I was arrested for DUI in Indian River County, Florida in June 2008. Told by the FHP officer that he was placing me under arrest for DUI while still in my vehicle, I refused to take the field sobriety test and the breathalyzer, demanding a blood test as proof positive. The result came back negative for blood alcohol (0.00), negative for illegal drugs and negative for prescription drugs. The outcome? The Assistant State Attorney insisted on pursuing the charges, ultimately allowing me to plead to a reckless driving charge. The Judge, David Morgan, then threw the book at me, imposing the maximum fines, points and even placed me on probation! Total cost of $10,000 in attorney costs, court fees, fines, drunk school (!), victim awareness (there was no accident much less any victim). I also have lost my license for 12 months for refusing to blow. In retrospect, if I simply had pled guilty, it all would have been behind me in 90 days.
Wait! There’s more!! At the time, I was a Democratic candidate for Property Appraiser in a predominantly Republican county. The ASA knew the negative, negative, negative results of the blood test BEFORE my primary but kept them quiet. I won the primary anyway. Then they pressed for a trial at the time of the general election – a no win scenario so I accepted the reckless (wreck-less?) driving charge. And lost in the general by 0.7%.
A judge asked me if I “had learned my lesson”. What lesson? I wasn’t drinking or drugging while driving. Maybe the lesson was that political power can take away the freedom and income earning ability of a law-abiding citizen.
PersonFromPorlock - February 8, 2009 at 11:24 am
Let me suggest, probably in vain, that even threatening greater punishment to those who choose to exercise their constitutional right be tried is a prima facie violation of 18 USC 242:
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Note that by its nature, 18 USC 242 doesn’t recognize official immunity. But since federal laws tend to be enforced only when they align with federal policy, and since the feds are as fond of plea bargaining as the states are, there isn’t much chance of anything being done.
Richard - February 8, 2009 at 11:50 am
Will there be any investigation and more important punishment for any prosecutor misconduct?
Charles - February 8, 2009 at 12:22 pm
It should also be pointed out that the criminal justice system is to a large extent not about the legal process of convicting or exonorating those tried.
It’s about the dominance of the state.
Any historical examination of cases like this one will invariably reveal prosecutors that will hold out and claim the accused was still guilty, or worse, say something to the effect that they were a scum bag anyway and deserved goint to prison.
It’s the schoolyard bully, but with the power of the state on his side. To him it’s fine if he beats or otherwise attacks you because he has the right to do so.
But, if you defend yourself, you are the one who had committed the wrongful act.
anonymous - February 8, 2009 at 12:23 pm
http://www.theagitator.com/2008/04/08/california-punishes-wrongfully-convicted-man-a-second-time/
California Punishes Wrongfully Convicted Man a Second Time
Tuesday, April 8th, 2008
Last month, I mentioned the case of James Ochoa, an Orange County, California man wrongly convicted and imprisoned for 16 months for carjacking.
The state of California is now refusing to compensate Ochoa for his wrongful conviction because, they say, by accepting a plea bargain, Ochoa contributed to his own railroading.
. . .
Remember, this is the case where DNA testing showed that the hair left at the crime scene did not match Ochoa. According to the crime lab technician who conducted the testing, that result was met with fierce resistance from the prosecutors’ office, who on two occasions asked her to change her results.
Hauptmann Gerd Wiesler - February 8, 2009 at 12:29 pm
You think we imprison people on a whim? If you think our humanistic system capable of such a thing, that alone would justify your arrest.
Hauptmann Gerd Wiesler - February 8, 2009 at 12:36 pm
An innocent prisoner will become more angry by the hour due to the injustice suffered. He will shout and rage. A guilty prisoner becomes more calm and quiet. Or he cries. He knows he’s there for a reason. The best way to establish guilt or innocence is non-stop interrogation.
Dr. X - February 8, 2009 at 12:47 pm
Here are a couple of cases for you:
Therapist has consensual sex with underage girl. Several years later when she is over 18, he wants to break it off, she refuses and tells. He is arrested and tried. He gets life, that’s LIFE! without parole. His wife, because she knew of the affair, is granted immunity if he pleads guilty, which he does. She gets 8 years anyway. They lost their home and all their money to the lawyers. Oh, the best part is that the same law firm represented the victim and the perpetrator.
Case two:
Man is attacked, beaten and thrown into oncoming traffic. While on the ground he pulls his 3” pocket knife and stabs the attacker in the thigh. The attacker runs back to his car. The victim enters his car rolls up the window, locks the doors and calls 911. Attacker returns to the victims vehicle and bangs on window and shows that he now is armed with a box cutter. Victim yells ‘I’m calling the police!’ Attacker returns to his vehicle and throws box cutter into the weeds on the way. Police arrive and draw down on THE VICTIM and threaten to kill him unless he grovels. The victim’s lawyer found three witnesses to the incident who cooperate the victims story. The outcome? Police lie in court. Police report bears no resemblance to what happened. District attorney prosecutes victim for using a knife to defend himself (something about it being illegal for one to use more force to defend oneself than is used against one), victim charged with a felony which was later argued down to misdemeanor with community service. The cost so far is about $15,000. The victim was a 55 year old man with a herniated disk and a heart condition while the attacker was a 28 year with a record of violent spousal abuse. And what happened to the attacker? Nothing so far.
This all happened in California, which is one of the many reasons why I no longer live there. But this is nothing compared to what has happened across the country. We have no representatives and we have no defenders, unless you have a lot of $$$$.
Kevin - February 8, 2009 at 1:02 pm
There’s a part of this story I don’t get. Was listening about it on the local radio here in Texas, listening as the court allowed the rape victim to angrily berate the offender not only for what he did to her, but what he did to the innocent man and his family.
But … she was the one who was raped. Didn’t she know who raped her? Did she not have some role in fingering the innocent guy originally? What gives? Is there a reasonable explanation for this I haven’t heard? I did not catch the NPR story…
Les Nessman - February 8, 2009 at 1:50 pm
” Excellent post, Dan, but what is the fix for the significant problem you identify? ”
The fix is when the wrongly imprisoned, or his family, ‘takes care’ of the proscecutor and/or others who lied or otherwise were dishonest in putting him in jail.
And yes, you know exactly what I mean when I say ‘take care of’.
Les Nessman - February 8, 2009 at 1:59 pm
DrX:
” Therapist has consensual sex with underage girl. Several years later when she is over 18, he wants to break it off, she refuses and tells. He is arrested and tried. He gets life, that’s LIFE! without parole.”
Uh, the therapist a.k.a. TheRapist, did not have consensual sex with an underager; because there is no such thing as ‘consensual’ sex with children.
He’s lucky to be alive. The absolute minimum punishment he should get is to rot in an uncomfortable jail until he dies.
anonymous - February 8, 2009 at 2:20 pm
17 year-olds can’t give consent, but 16 year-olds can be tried as adults.
Larry - February 8, 2009 at 2:33 pm
There is a certain amount of hyperbole going on here. Consider the following:
1). The innocent who are wrongly convicted at trial are not treated more harshly than the guilty who are correctly convicted at trial. So your claim, at best, has to be that the wrongly convicted innocent are sometimes treated more harshly than the guilty.
2). Based on numerous studies from various innocence projects across the country, convictions at trial are wrongful in about 3% of the cases. That is to say the vast majority of those innocent persons who go to trial are rightfully acquitted.
3). The vast majority of innocent defendants who are arrested and charged have the charges against them dismissed by a judge or dropped by the prosecutor prior to trial.
In short, the innocent generally fare very well in the system. Given how few innocent defendants are wrongly convicted, I think that you are losing perspective when you say without qualification that “defendants who are innocent are punished more harshly than the guilty.” The proper conclusion would be more like: “While more than 95% of innocent persons who are charged with a crime are exonerated, the remaining 5% –while punished as harshly as the guilty persons who go to trial– receive harsher treatment than those guilty persons who accept a plea bargain.” This isn’t as pithy as your way of posing the problem, but it is a vastly more faithful representation of the current situation.
observer2 - February 8, 2009 at 3:03 pm
There is another important element here that I don’t think has been mentioned yet.
How many people are later killed, raped, injured, or robbed by defendants who were in fact guilty but were not prosectued or were aquitted?
I don’t have numbers, but based on repeated reports of “John Doe, with 23 previous arrests”, or “4 previous convictions for DUI”, etc., one has to think its probably significant.
ttx - February 8, 2009 at 3:17 pm
I continue to see less and less reason for those targeted by overzealous and fraudulent prosectutors to do anything but go postal on society. The justice system is screwed, and it beats living the rest of your life in a cell.
scott - February 8, 2009 at 3:49 pm
For those of you wanting to keep your federally elected officials on track, look into the federal grand jury. Then look into the 5th amendment mentioning presentments… then read this:
http://www.therightsideoflife.com/?p=3025 and http://www.therightsideoflife.com/?p=3155
Presentments are the key to keeping the government in check by the federal grand jury. They’re still constitutional no matter what the FRCJ says.
Acksiom - February 8, 2009 at 4:02 pm
I don’t claim that it’s a perfect ultimate fix, but I do argue that this is one very good and useful tool: personal surveillance tech, or “sousveillance”.
I.e., personal recorders, mini digital camcorders, wearable cameras, and so on. It appears to be working well already for the Open Carry advocates. In the end, the greatest benefit may lie in early deterrence of wrongful prosecutions.
Kent G. Budge - February 8, 2009 at 4:08 pm
Larry,
While I agree with much of what you say, this part:
does not follow. The conviction rate you quote is for all trials, not just those of the innocent. If the innocent are only 5% of those who actually go to trial, then as many as 60% of them could be wrongly convicted. Perhaps you have other statistics supporting your conclusion, but these don’t.
Cecilia - February 8, 2009 at 5:01 pm
Is the jury not also a problem? Cynthia Sommers was convicted of murdering her husband Todd by arsenic poisoning (overturned) because the jury believed she killed him for money to get breast implants. In other words, they didn’t like her so they convicted her.
Is it time for us to have professional juries?
Dr. X. - February 8, 2009 at 5:20 pm
Less Nessman,
Thank you for your reply. You said:
“Uh, the therapist a.k.a. TheRapist, did not have consensual sex with an underager; because there is no such thing as ‘consensual’ sex with children.
He’s lucky to be alive. The absolute minimum punishment he should get is to rot in an uncomfortable jail until he dies.”
I agree with you in principal. However there is a difference between the various levels. For instance, a violent beating rape should be punished with greater intensity than a “consensual” rape don’t you think? I do agree with you that an underage child cannot consent and therefore the perpetrator should be punished. I just disagree that one should get life, have all their possessions and money taken, allow officials to lie which then results in the imprisonment his wife, then allowing the law firm to engage in collusion by representing both sides and not call a mistrial (at the least). By comparison, a person who was murdered cannot be helped in any way. It is over for them, but the lingering effects on their families are virtually permanent. For a rape victim, in the vast majority of the cases that I am aware of, the victim recovers and leads a productive life. Therefore I think one could conclude that murder is a more serious crime and the punishment should therefore be harsher. Not the other way around, which is how I see it at the moment.
Also, did you know that the average sentence for murder in the US is 241 months while they serve only an average of 147 months on average? By comparison then, life for a nonviolent act, wherein no one was injured, either physically or psychologically, seems a bit unfair to me.
Anon - February 8, 2009 at 5:40 pm
I think a simple way to fix the system is this: If there’s a wrongful conviction the Judge that sentenced the defendant and the prosecutor that prosecuted the case get to sever the defendant’s sentence and have ‘his crime’ added to their records, just like they were the guilty parties. Losing their ability to practice law, and forfeiting all their property to the defendant’s family would also help. Tyrants will always be tyrannical unless they face something even bigger and badder than them.
straightarrow - February 8, 2009 at 5:48 pm
It is time to hold prosecutors and judges who collude unethically, immorally, and illegally to harm citizens they know to be innocent to account.
The system will not do it. What does that leave?
uh huh!
Larry - February 8, 2009 at 6:08 pm
Kent wrote:
Larry,
While I agree with much of what you say, this part:
“2). Based on numerous studies from various innocence projects across the country, convictions at trial are wrongful in about 3% of the cases. That is to say the vast majority of those innocent persons who go to trial are rightfully acquitted.
does not follow. The conviction rate you quote is for all trials, not just those of the innocent. If the innocent are only 5% of those who actually go to trial, then as many as 60% of them could be wrongly convicted. Perhaps you have other statistics supporting your conclusion, but these don’t.”
Indeed, if the innocent were only 5% of those who go to trial, what you say would be correct. But that’s almost certainly not close to the real figure. Here’s what we know (I’m speaking now about serious felonies: murder, rape, aggravated assault and armed robbery):
-one third of those trials end in acquittal and another 5% are mistrials. If most people acquitted are innocent,then we have, say 25-30 innocent for every 100 trials. Two-thirds of those trials end in conviction. If the false conviction rate is 3%, then we have roughly a max of 2 false convictions for every hundred trials. If most of the 33 acquittals are of innocents, then the chance of an innocent person who goes to trial being falsely convicted is about 8%.
But suppose that most acquittals are of the guilty. Suppose only 6 innocent persons go to trial and 3 of them are convicted. That would show that we were shafting the innocent in general only if we ignore all those presumably innocent arrested persons who were not brought to trial at all.
Surely, the pertinent question here is something like this. If we can give their just deserts to 67 of every hundred people tried (and thus prevent their committing further crimes during their incarceration) at the unfortunate price of wrongly convicting three innocent people, is it worth it? Would it be better to reduce those three mistakes to one at the cost of convicting twenty fewer murderers, rapists, etc.? I have my doubts.
Clint - February 9, 2009 at 1:19 am
“If we can give their just deserts to 67 of every hundred people tried (and thus prevent their committing further crimes during their incarceration) at the unfortunate price of wrongly convicting three innocent people, is it worth it?”
No. “Better that ten guilty persons escape than that one innocent suffer” is a famous saying for a reason. It is Blackstone’s formulation and read more about it here: http://en.wikipedia.org/wiki/Blackstone%27s_formulation
I would rather be Reasonable for my own life and take my chances with the criminals-at-large than face prison for, literally, doing nothing. As for the guilty let loose? They either clean up (not justice, but they are no longer threats to society) or get caught eventually; especially as more people start standing up for themselves and fighting back.
Albie - February 9, 2009 at 5:47 am
I have heard that prosecutors are seeing DNA evidence as a two-way sword. Apparently, Grand Juries are becoming increasingly more reluctant to allow prosecutions without DNA evidence. Makes some criminal trials tougher, no doubt.
Albie - February 9, 2009 at 5:47 am
I have heard that prosecutors are seeing DNA evidence as a two-way sword. Apparently, Grand Juries are becoming increasingly more reluctant to allow prosecutions without DNA evidence. Makes some criminal trials tougher, no doubt.
cathyf - February 9, 2009 at 11:16 am
I would also point to a related phenomenom, where prosecutors “logroll” for perjury.
Take a very typical corruption prosecution. Cops catch guy who is guilty of corruption. They offer him a deal: be punished for your crimes, or turn state’s evidence against some bigger fish and we’ll let you off.
Lather, rinse, repeat…
Eventually, you get to a key and pivotal suspect: the guy who is guilty, but doesn’t know any guilty person who is a bigger fish than himself. This guilty person faces a choice: being punished for his crimes, or committing perjury and framing an innocent person.
Suppose he chooses the perjury… Then he puts an innocent party in the position of having the choice between taking a punishment that he does not deserve, or committing perjury and framing another innocent.
When you run this gambit, you get a straight line of suspects who cooperate, ended by the one who refuses to cooperate and gets, at the very least, prosecuted for some crime. (Even if not convicted, being prosecuted is obviously a negative event.)
The interesting question is this: which is more likely? That a guilty person somewhere up the line will refuse to turn state’s evidence and face the full weight of the law? Or that prosecutors will run through all of the guilty people and even a couple of innocent* ones before they find an innocent with the moral fortitude to bear the full weight of an unjust prosecution without trying to deflect it onto someone else?
*These would be the ones who were innocent before the prosecutors successfully suborned perjury from them.
abyss2hope - February 9, 2009 at 7:36 pm
The proposal for “taking care of” prosecutors and others who are assumed to have intentially convicted the wrong person is injustice in the name of injustice. Same goes for the suggestion that the solution is for the wrongfully accused to go postal.
These are acts of terrorism and have no relationship to real justice.
Jerry Peters - February 10, 2009 at 6:53 am
Prior to any trial there should be a review of the investigative file by an independent person,or persons.
Sailorcurt - February 10, 2009 at 7:13 am
I think part of the problem is the “win at any cost” mentality of the prosecutors and the lack of consequences for them when they…um…bend the rules.
The Duke rape case was an aberration…not in the conduct of the prosecutor, but in the fact that he suffered consequences for his conduct.
We recently had a case here in Chesapeake VA (Google Ryan Frederick) where the Prosecutor demonstrably lied to the judge (insisted that there were no stills taken during a re-enactment at the crime scene to be turned over to the defense during discovery, when a video at the scene (a video that the prosecution tried, and failed, to prevent the court or the defense from viewing) clearly shows the official police photographer moving the very same prosecutor around so they could get a shot). The Prosecutor received no censure at all (but the prosecution was required to turn the photos that they denied ever existed over to the defense…during the actual trial…not during the discovery phase when the defense may have actually had time to get an expert to view and evaluate them).
Until we start holding government officials personally responsible for misconduct (and I mean treat it SEVERELY), miscarriages of justice like this will not abate.
Sammy - February 10, 2009 at 12:32 pm
A criminal justice system that is capable of ever imprisoning an innocent person is unacceptable. I would rather every single guilty person walk free than ever have an innocent punished.
Emma - February 10, 2009 at 6:02 pm
In the 7th Circuit, a defendant who takes the stand to defend himself and is convicted is charged with perjury because it is assumed that if he is convicted in spite of his testimony that he must have lied. Also, a defendant who testifies in a pre-trial hearing and the judge finds in favor of the prosecutor is assumed guilty of obstruction of justice which will increase his sentence.
As for the gentleman who thinks that innocent are found guilty in only 3% of the cases, that is not true in the 7th circuit.
My son was accused by a convicted felon of supplying him with 2 kilos of cocaine on December 15, 1998. It was found that it was impossible because 5 witnesses came forth, including two Chicago police officers (my son was present in my home because of an earlier burglary) to say that he was at my home which is 13 miles away from where he was supposed to be delivering drugs.
The jury found him NOT GUILTY. However,he was also indicted for conspiracy, and the act in furtherance of the conspiracy was supplying the drug dealer with 2 kilos of cocaine on December 15, 1998. There were no co-conspirators, no co-defendants, no witnesses, no physical evidence, no surveillance, only the agent’s word that he had confessed to the2 kilo delivery (which he was acquitted of) in post-arrest statements. The informant lied so much and changed his story so much (and it ultimately differed too much from my son’s alleged “confession”) that the government would not allow him to testify at trial. Instead they used his out-of-court statements brought in through the agents & the appellate court said that the hearsay issue was not error because the statements were not brought in for the truth (the statement was that he was the informant’s supplier). The judge refused to give an instruction that the accused cannot conspire with a government informant. The appellate court said that should have been given, but it was harmless error because the jury must have thought that they conspired sometime before that date. The informant was given a superseding indictment which dropped my son’s name as a co-conspirator, but that was never mentioned in court. The agents were unable to produce any rough notes of the so-called confession. The appellate attorney stated that the uncorroborated & undocumented statements are not enough to convict, but the Assistant U.S. Attorney said he had a conversation with the informant about a $40,000 debt. There was no record or evidence of such a conversation but the AUSA said he had a right to infer that such a conversation might have taken place based on the uncorroborated hearsay statement of the agent that such a debt existed. So the appellate panel affirmed based on that “evidence.” The original indictment was for 2 kilos (for which he was acquitted). The government presented a special verdict for 5 kilos. The judge said he did not see any drugs, so he could only depend on the 2 kilos and although he couldn’t see the additional 3 kilos, he oould understand why the jury would think there were 5 kilos, which equal 10 years to life.
The judge denied the 2255 and the COA and in the 7th circuit, you have to go back to the same panel that affirmed the conviction and ask them to issue a COA. My son had no criminal record. He is a husband & father of 5, doesn’t smoke nor drink, grew up in a middle class home, went to college, was a licensed journeyman carpenter and did websites on the side. To apply for clemency he would have to admit to a crime he did not commit and express remorse for it. Does anyone have any suggestions as to how an innocent man can prove his innocence in the federal justice system?
Kay Sieverding - February 10, 2009 at 9:21 pm
Dear Brian
What happened is that Judge Naughty Nottingham extorted me and my husband. He dismissed my complaint in the D of CO 02-1950 but didn’t say why. I filed claims based on related facts in another court. Nottingham ordered me imprisoned for doing so. According to the Steamboat Springs City attorney, see city council minutes 9/06/05: “Mr. Lettunich reported his work on the following. The Federal District Court held a contempt hearing regarding Kay Sieverding. She refused to dismiss the cases that she filed and was arrested. Mr. Sieverding dismissed the cases but later reneged and said he will not dismiss the cases; so he may be arrested as well.”
Nottingham successfully extorted my husband by saying:
“you will file on your behalf a motion to voluntarily dismiss…If you fail to withdraw those lawsuits, the next time you’re in this court you better be prepared with your toothbrush, because you will be going to jail.”
I filed another lawsuit while I was in jail but Christopher Beall of Faegre & Benson threatened to have Judge Naughty put my husband in jail if I didn’t file a motion to dismiss.
Emma: You could try contacting the Innocence Project and seeing if you can get records of people who were released thru post judgment motions. Then you could look for similar facts with your son. If you write it up you might be able to sell a kidney to pay for a lawyer.
Larry - February 11, 2009 at 2:24 am
Sammy writes:
“A criminal justice system that is capable of ever imprisoning an innocent person is unacceptable. I would rather every single guilty person walk free than ever have an innocent punished.”
This is pure, unthinking sentimentalism. No one, I repeat no one, knows how to design a justice system that never convicts the innocent. And have you thought for a moment about what life would be like if, following your advice, we acquitted all the guilty?
You seem to forget that we punish the probably guilty because, if we don’t, vast numbers of innocent persons will be victimized by the unconvicted felons who, if you had your way, would be free because we wanted to run no risk of convicting an innocent man.
Finally, I wonder why you worry exclusively about the few innocent who are falsely convicted but seem not to be moved by the hundreds of thousands of innocent people who would suffer if we suddenly opened the doors of all our jails and prisons? An innocent person killed or raped by someone who was falsely acquitted deserves your compassion as much as the innocent person who is wrongly convicted does.
Emma - February 11, 2009 at 2:57 pm
Larry wrote:
This is pure, unthinking sentimentalism. No one, I repeat no one, knows how to design a justice system that never convicts the innocent. And have you thought for a moment about what life would be like if, following your advice, we acquitted all the guilty?
There is a way to design a justice system that at least has some safeguards so that convicting the innocent becomes the exception as opposed to the norm. For instance:
1. Confessions should be either written out and signed by the accused, or preferably tape recorded or video recorded.
2. Any information supplied by an informant should be thoroughly investigated and corroborated before taking it as the truth.
3. Hearsay evidence should not be permitted.
4. The informant should be mandated to testify and submit to cross-examination, regardless of whether he or she changed their testimony.
5. En Banc hearings should be automatic anytime an appellate panel deviates from case law.
6. All appellate briefs must accurately report the facts of the case as supported by the record; any facts or conclusions not supported by the record should be stricken and should not be considered by the panel.
7. Overcharging should not be allowed, i.e., if a person is accused of delivering drugs and there is no evidence of a conspiracy, that person should not be charged with a conspiracy. In fact, no crime should be charged to a person if evidence of that crime and that person’s commission of the crime does not exist.
I’m not an attorney. I’m sure an attorney would have even more suggestions.
ohwilleke - February 11, 2009 at 4:25 pm
The flip side of the plea bargain system is that weak cases often produce vary favorable plea bargin offers. Cole, for example, was offered probation in a plea bargain, despite being accused of being a violent serial rapist who had terrorized Texas Tech for years. Large gaps between offered pleas and sentences upon conviction are warning signs for cases to be concerned about.
Another problem faced by innocent defendants, particularly in the context of gang or organized crime prosecutions where guilty by association is often inferred, is that innocent defendants are rarely in a position to mitigate their sentences or drive favorable bargains by cooperating to implicate others.
As an aside, the case Kay Sieverding is referring to is one involving unauthorized practice of law in termination of parenting rights cases, where courts found that she had crossed the line from being a lay supporter of defendants to being a de facto lawyer.
Larry - February 12, 2009 at 2:24 am
Emma,
I like your suggestions about how to protect the innocent. Still, I’m a little mystified by your remark that “we need to make convicting the innocent the exception rather than the norm.”
Convicting the innocent already IS the exception rather than the rule. Repeated studies by various Innocence Projects, that explicitly aim to identify all cases of wrongful acquittals, invariably report that about 97-99% of all the convictions at trial that they evaluate are convictions of the guilty. (Throw in the fact that 90%+ of all convictions emerge from plea bargains –where the rate of false conviction hovers around 0.2%–and it’s clear that almost all those convicted of a crime are guilty.)
Can you think of any other comparable, complex human activity where we make mistakes as rarely as 1-3% of the time? Let alone only 0.2% of the time? Surgeons botch operations at a higher rate than that. The FDA approves drugs as safe as long as they are 95% sure of their safety, meaning that about 5% of approved drugs are unsafe.
mikeb302000 - February 12, 2009 at 9:13 am
I referred to this case as Texas Justice.
http://mikeb302000.blogspot.com/2009/02/dna-testing-exonerates-dead-man.html
Stephen R. Diamond - February 12, 2009 at 5:32 pm
Penalizing the innocent should serve to reduce to the absurd the practice of sentencing according to guilt acceptance. See the attached url for some analysis of judicial use of remorse as a sentencing factor.
Stephen R. Diamond - February 12, 2009 at 5:33 pm
Penalizing the innocent should serve to reduce to the absurd the practice of sentencing according to guilt acceptance. See the attached url for some analysis of judicial use of remorse as a sentencing factor.
rita - October 9, 2009 at 8:56 am
Elizabeth:
Weare family of Steven Nowicki, thanks for your support. How do you know about Steven’s imprisonment? Are you from NYS or read about it elsewhere, we would just to know how far this story has gone around the states, so that people could know what a travesty this is.HE IS GUILTY OF NOTHING EXCEPT BEING A KIND AND WONDERFUL PERSON, Thank you again
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