Why justice has nothing to do with a conviction

Data recently released by the GHSSS* shows that 60% of you would choose to plead guilty to an offense you did not commit if you could avoid jail time.

This past week, a special prosecutor recommended that Tim Masters be released, after DNA exonerated him of the crime for which he’d been in jail for 9 1/2 years.

What does this tell us? I think it means that a conviction doesn’t mean an individual is guilty. It coud be that the jury found the defendant guilty under a version of the truth as presented to it, or simply that some people decided it would be better to just admit to something you didn’t do and avoid spending years incarcerated.

But what I’m really curious about is the folks that said “no” to the question asked in the poll. It occurs to me that the answer to the question might depend on whether you are a lawyer or not. Lawyers, especially criminal defense lawyers, see the system up close. We have clients who we believe are innocent and yet are convicted. We know how easy it is for the State to obtain a conviction in child sex cases (or even rape cases). Balancing the interests, the prospect of avoiding jail time for sure is too appealing to pass up.

On the other hand, if you’re not a lawyer, the principles of truth and justice might shine brighter. You may actually still believe in the fairness of the system and put faith in the notion that it is a truth seeking enterprise and that you will be vindicated because “you didn’t do it”.

So, I invite those of you who selected “no”, or would select “no” to share your reasons. Are you a lawyer? Why did you choose no? What would make you change your mind? Would you ever plead guilty to a crime you didn’t commit?

Anyone else with any other thoughts is also invited to jump in.

*not a real organization. Kudos to you if you figure out what it stands for.

25 thoughts on “Why justice has nothing to do with a conviction

  1. SPO

    With respect to Masters, there was one of those “true crime” shows about how they “caught” him. I remember being shocked at how thin the “evidence” was. This is why we have rules of evidence . . . . the kid’s admittedly weird drawings were used to convict him. If there were ever a precautionary tale about why we have the forbidden inference of conduct from character, this case is it.

    That said, I must take issue with your “convictions have nothing to do with justice” premise. The fact is that they almost always get the right guy, and there are a hell of a lot more false negatives than false positives. The criminal justice system is a human system with human frailties. Mistakes are going to be made. One example of a false conviction doesn’t mean the system is bankrupt or that the system doesn’t, generally speaking, do justice.

    I hear you about pleas with respect to certain sex cases. The Amirault case in Massachusetts was an appalling example of what can happen when an innocent man asserts his innocence. Grant Snowden in Florida, same thing (thanks to Janet Reno). Once again, if tried and true rules of evidence and ethics had been followed in those cases, many of those convictions never would have happened. I often wonder how some of those prosecutors sleep with themselves. I wonder too how the judges do so.

    I think that the criminal justice bar has a responsibility to the system not to make overbroad generalizations. When you say things like a conviction does not equal justice, then people tune you out. In a real sense, you are crying wolf, instead of being the conscience of our society.

    I asked in a post before, and I am curious about it, whether PDs would rather lose 9 of 10 cases with the one innocent guy being their win or win 9 out of 10 cases with the one innocent guy being their loss. I suspect I know the answer (you guys would rather win more), but I am curious about the rationales.

  2. gng

    I’m not a lawyer.

    If all else was equal, and the consequences of the plea were identical to the consequences of losing at trial save for the jail time–and I mean all of the consequences, both legal (fines, probation terms, etc.) and social (white-collar employability)–then I’d opt for the plea unless my lawyer felt I had a good chance at trial.

    I’m curious: You give the ease of getting a child-sex offense conviction as an example of something a lawyer would know about that might incline that person to make a guilty plea.

    Why? Even if you avoided jail with a plea, wouldn’t you still have to register as a sex offender and essentially live the rest of your life as a unemployable pariah?

    It seems (to my very non-lawyer self) that, depending on the length of the term, jail is one of least scary possible consequence of a plea or conviction.

  3. Windypundit

    I’m also not a lawyer. I didn’t answer the poll because the devil is in the details, and I don’t have enough information about the consequences of “guilty.” Also, I’m bad at these kinds of decisions. I think I’d plea to a misdemeanor without hesitation if my lawyer recommended it, but a felony is another matter. There can be a lot of ancilliary and unofficial punishment for a felony. A sex crime conviction would be the end of my life as I know it, even without prison time.

  4. wtto

    Perhaps it depends also on people’s familiarity with what kinds of jobs and opportunities are closed to people with certain criminal records.

    Additionally, race and class can be tied in there as middle class and owning class people and/or white people may be able to talk their way into opportunities without there ever being a record check than other folks can.

  5. Packratt

    Well, I’m no lawyer… but I’ve been through the process as an innocent person accused.

    I was lucky in that my faith in the system and my innocence made me not plead even though my PD was very forceful in her efforts to get me to plead guilty to a crime I didn’t commit, even going so far as to convince my wife that I should plead guilty. My luck was in that there was a video tape that proved my innocence and a prosecutor who had a streak of conscience and told a lawyer I later hired that “I cannot take this case to trial in good conscience.” After we saw the tape the charges were dropped, a day before the trial.

    In any case… I want to answer GNG’s rhetorical question concerning whether the prospect of jail would be scarier than a guilty plea. When I was in jail, the King County Jail in Seattle, I was intentionally denied medical treatment and suffered excruciating pain as a result. Indeed, it was torture to me and it made the prospect of a longer stay something I wanted to avoid at all costs.

    Indeed, you have to look at it from the perspective of an innocent person, first time in jail, and how frightening a thing it can be… especially in a jail well known for it’s unconstitutional practices. I thought, if this horrible place where they put people before trial is this brutal, I do not want to see what prison is like.

    It’s that prospect, that perception, coupled with the thought of never seeing your wife and children again or just wanting to get home to your family that can tip you towards the option of less time despite your innocence.

    It was hella hard for me to say “let’s go to trial NOW!” to a lawyer who said she believed so little in my chances that I should take any plea deal offered. I can’t even put into words the kind of pressure that was. Luckily I was too naive to listen, though I don’t think I would make the same choices if it happened again knowing what I do now about the system.

  6. ed

    The 60% figure is low – here in Texas. Most judges punish those who refuse to plead out with an unfair trial and then a harsh sentence. THAT WILL TEACH EM, is the attitude.

    I refused to plead guilty when the plea deal meant no jail time and reduction to misdemeanor. I was convicted and sentenced to 4 years. Conviction reversed on appeal – I now have a judgment against Texas for Wrongful Imprisonment. Waiting for another appeal by the State to be ruled on so I can collect.

    I learned in jail & prison that almost all who are in the know, or not as stubborn as me, plead guilty to crimes they did not commit.

    I estimate 90% or more of those arrested in Texas, who are innocent, will plead guilty. Court Appointed Defense Attorneys must produce this result if they want to continue to get appointed / make a living. Hired counsel don’t want to take the risk of a loss on their record – so they, too, encourage the innocent to accept plea bargains.

  7. Mark from Jersey

    What would you guys choose in this instance, as I know someone who had to make a similar choice:

    19-year old facing a sexual assault and the “catch-all” risk of injury charge for consensual sex between teenagers with the age difference > 3 years?

    He is innocent except parents pressed charges because they “suspect” something has happened.

    The state has no other evidence, except a pressured statement by the alleged victim who has recanted.

    It’s anyone’s call on what the alleged victim will say on the stand, because the relationship was romantic (but innocent), but the state and the parents are involved now.

    Now, do you tell him to:

    1) Take the probation-only deal, and have to register on the non-public SOR, plead to a sex-related misdemeanor, or

    2) Risk up to 10 years in jail with a child sex conviction on a class C felony, a publicized trial, and emotional drain?

  8. SaucyVixen

    Nine out of ten wins?

    I mean, if it were even a realistic hypothetical, I may be tempted to answer the question. But nine out of ten wins. Sounds like a prosecution record to me.

    Seriously, though, the question is far too broad. Every case is different, and every case is either strong or weak for completely different reasons. And sometimes, as a PD, my job isn’t about winning a case. It’s about helping my client make the best decision that is right for him.

    I could pontificate further about the practical lack of the presumption of innocence, as well as the fact that the burden (despite the legal mumbo jumbo) is not on the State to prove the elements beyond a reasonable doubt, but on the Defendant to provide a reasonable alternative theory consistent with innocence.

    I could talk about all of that, but I’m tired. I’m going to bed.

  9. SPO

    Yes you could pontificate about the presumption of innocence. But it’s not all that relevant to my hypo, which deals with actual innocence, not a legal presumption. I’m guessing that you know full well in about 99% of your cases whether the guy did it or not.

    How about this for a more realistic hypo: you represent 10 guys, one of whom “didn’t do it”, i.e., factually innocent. He’s charged with a crime that would net him 30 days in jail. Would you rather lose his case, but win a case where a guy “did do it”, and the crime is murder. You can’t win both; you can’t lose both. What case would you rather win?

  10. SaucyVixen


    It is not my job to sit in judgment of my clients. Just because someone says he wants to plead guilty doesn’t mean he did what he’s accused of. And just because someone maintains his innocence doesn’t mean he didn’t do it.

    You seem to think that lawyers know 100% of the time whether someone is “factually innocent,” and that’s simply not the case. I am not a seeker of truth; I am an advocate for my client.

    Furthermore, your hypo isn’t realistic at all. Because if a guy is held on bail and he’s only gonna get 30 days, it’s pretty likely that’d he’s going to plead to time served on his first court date, because if he can’t make his bail, he’s going to be held pending trial a whole lot longer than those 30 days. And if the guy isn’t already held on bail, it’s unlikely he’s going to have to do the 30 days, because (at least in my experience), judges don’t want to waste time doling out 30 day sentences when they can dole out probation and screw the guy over even more when he violates (because there’s very little due process involved in VOP proceedings).

    But what’s even more important, is the fact that it’s unlikely that I will ever be trying a murder case. At least not anytime within the next decade or two. I can’t talk about winning or losing murder cases because I can’t begin to fathom what either would be like.

  11. SPO

    Of course, it’s not your job to sit in judgment of your clients. But one would think that there would be more satisfaction in getting an innocent man off than getting a guilty one off. And one would think that, while all your clients, guilty and innocent are entitled to effective representation, you would rather have your effective representation result in acquittals for innocent people over the guilty ones. Your agnosticism is interesting.

    If I were a PD, I would try to win for all my clients, but I would be ecstatic over getting an innocent guy off. I would not exult in winning a verdict for a guilty one. I wouldn’t even shake the guy’s hand, and I would not accept congratulations from my colleagues over it either. When a guilty guy gets off (at least for a malum in se crime), it is a bad thing. It might be less bad than a conviction that wasn’t warranted, but it is still a bad thing.

  12. SPO

    I shouldn’t have said more “realistic”. I should have said something not so fantastic. I know the realities of people not being able to make bond. My wife represented a guy who couldn’t make bond, sat in jail, insisted on a trial. He wound up getting the BS charges dropped. Had an airtight alibi that the prosecutor was to f’in busy to look at. And the prosecutor didn’t even apologize.

    Query: do prosecutors ever take the time to apologize to innocent people who happened to be in the wrong place at the time. I would think that such a gesture would be very appreciated. I would do it.

  13. arbitrary aardvark

    I am a lawyer. I was falsely accused of attempted kidnapping of a child. I refused to plead, and the charges were dropped a year and all my money later. I am crazy and stubborn, and my reputation, what’s left of it, was at stake. I understand why it is usually rational for a falsely accused person to take a plea. Because of this, prosecutors can overcharge and overreach and bluff, so now and then somebody needs to call them on it.

  14. SaucyVixen

    My agnostic attitude comes from the fact that I don’t care whether my clients are guilty or innocent. What I care about is making sure that their rights are not trampled upon, regardless of their guilt or innocence. The rights that protect the accused are the same rights that protect everyone else.

    For example: People often lament about evidence being suppressed prior to trial based upon a “technicality.” Last time I looked, the Bill of Rights wasn’t a “technicality.” The Fourth Amendment is not a “technicality.” To allow, for example, evidence to be introduced at trial that was obtained through an illegal search would be to give the government (through its law enforcement officers) carte blanch power to enter and seize whatever they choose from anyone’s home. Hence, draconian sanctions are imposed when they *really* muck it up.

    And believe me, that have to REALLY muck it up. Because as time goes by, the Fourth Amendment is eroded more and more, often in the name of safety and security, but always at the cost of infringing upon our civil liberties.

    I know that other people have different reasons for becoming public defenders. Some people are far more client-centered than I. When people ask me how I feel about my clients, I explain thusly: I feel pretty much about my clients the way I do about the rest of the world. There are a few I love, a few I hate, but most of ’em fall somewhere in the middle.

    My crusade is not one of moral righteousness insofar as specific individuals and crimes are concerned. The reason I do what I do is because I don’t believe that people should get their rights stepped on and tossed aside just because they’re poor. Because, as I said before, the rights that they have are the same rights we all have. And we can’t very well decide to take away rights from folks on an ad hoc basis just because we don’t like what they did, or because we think they’re guilty of the thing they’ve been charged with.

  15. SPO

    Saucy, that’s not my point, and I think you know it. But let’s unpack what you’ve written. First of all, I agree that the Fourth Amendment is not a technicality, but the “exclusionary rule” is not the Fourth Amendment. The “exclusionary rule” is judge-made law, and nothing in the Constitution requires it. (I am not saying that the exclusionary rule is wrong or anything like that, by the way.) Second of all, I agree that we have certain rights in this country, and they should be sacrosanct. And it is certainly fine to become a PD simply because you believe in a system of rights as being beneficial. I believe in that too, even if it means that someone walks when he or she did it. But so what?

    The issue I am driving at is “justice” from a systemic standpoint. You feel strongly about the “exclusionary rule”. Me not so much, but we can have a debate about that with the idea of making the system as a whole better, which is, by the way, an aggregation of specific results. I, for one, believe that rules of evidence ought to be followed–there is a ton of good policy behind them, and if that means that evidence is not admissible, that’s what it means. But once again, the idea is to make the system better, which, theoretically anyway, makes for more justice.

    So it seems that you are into “justice” on a macro level, and I understand that you have professional obligations, but then we are to believe that there is agnosticism about specific results. That seems odd.

  16. SaucyVixen

    I had a lengthy response typed out, but I feel it was a tad too personal. In short: I’m not wholly agnostic. I just don’t feel it’s my place to judge. Our system is premised on the notion that it’s better for a guilty man to go free than for an innocent man to be locked up. Which is why I have no problem when the former happens. It means the system is working.

    I also didn’t say there was agnoticism regarding specific results. What I said was that I don’t care whether my clients are guilty or innocent. Of course I wanna win. It’s far more fun to win. It just doesn’t happen all that much in my line of work.

  17. SPO

    When I was talking about specific results, I meant the correctness of them. And I think you’re a little flip about having no problem with a guilty man going free. Keep in mind that in such cases, the guilty man may be a murderer, rapist or other serious miscreant. When that happens, that’s a bad thing. It may serve a greater good, i.e., helping to keep us from a police state, but it’s a bad thing, and I do have a problem with it. Mel Ignatow is a perfect example of a really bad outcome.

    Why is it “fun” to win? If the guy’s innocent, then yes, but if he’s not? It’s one thing to do your best for a client–quite another to call it fun when real people are denied justice.

    This attitude, I think, explains a lot why people don’t like criminal defense attorneys.

  18. SaucyVixen

    I’ll say it one more time, and then I’m signing off on this thread:

    I do not sit in judgment of my clients. I am not the final arbiter who decides guilt or innocence. I do not decide who is “good” and who is “bad,” who “deserves” effective counsel and who does not.

    I do my job and it’s not really my concern whether people like me. I just wouldn’t deign to assign labels such as “good” or “bad” to people. That’s part of the reason my representation doesn’t change depending on the perceived guilt or innocence of my client. Call it flip if you want. I call it humane.

    End of discussion. Over and out.

  19. Long Time PD

    I’m a little perplexed by this idea of a false acquittal. An acquittal is an acquittal. It doesn’t mean the client is innocent and it doesn’t mean the client is actually guilty. It normally means the jury thought there wasn’t enough proof to convict, which also means they followed the rules.

    An acquittal often also means that some defense lawyer did a good job, which justifiably leads to feelings of happiness and pride for a job well done. I have done plenty of trials where even by the end of it no one really knows what supposedly happened. I have also done a trial or two where I was pretty sure the client was guilty but me and my co-counsel did a good job and the guy walked. And I had no reservations about high fiving my partner when we got back to the office. We did a good, professional job and our client got a great outcome. And I was happy, regardless of what I thought about guilt or innocence.

    I always expected to represent those acquitted guys again some day. To date I never have. Hmmm- maybe they weren’t the menaces everyone thought they were. Or maybe they were guilty but appreciated the miraculous second chance and straightened up. Who knows? Who cares? I’m with Saucy Vixen. If I spent all my time hand-wringing about who was really guilty and who was really innocent I would never get anything done. And if one of my acquittals goes on to commit new crimes, it’s not my fault the State didn’t have the proof, ability or will to lock him up the first time around. Of course I would feel bad for the victims if he commits a serious new crime. But if he does, the State will get another shot at him, and maybe they won’t screw it up this time. And, if assigned, I’ll be there to defend him on that one too.

  20. SPO

    Oh good God. Are you really perplexed by a false acquittal? Perhaps, I should have re-used the term, “false negative”. In any event, nowhere in here have I ever said (a) that the “guilty” deserve anything but the full protection of their constitutional rights or (b) that when a PD is doing his job, he or she should worry about whether the guy did it or not, other than how it affects strategy etc.

    All I have said is (a) a blanket statement that convictions and justice have nothing to do with each other is wildly overbroad and (b) that getting an innocent person off is better than getting a guilty one off.

    My larger point is the defense bar should be a repository for good ideas about making the system better, and that means reducing false positives and false negatives. If you don’t want to, fine, but then don’t complain when people take what you have to say with a huge grain of salt.

    Personally, I don’t know how anyone with a human conscience can be happy about getting a guilty guy off for a crime with a victim. It’s one thing to have pride in one’s work; quite another to exult in a result that is bad. If someone murdered your child and walked, unless you are a true believer, I doubt seriously that you would like the defense attorneys celebrating the freedom of your child’s killer. Personally, if I defended someone I knew was a killer, and he walked, I wouldn’t be happy at all. I would be sickened. And saddened. And, by the way, I have tried to help killers walk (pro bono habeas and work during law school). I look at it the same way that a military person should look at civilian casualties in time of war–a necessary evil, and nothing to be happy about. I doubt that people reading this blog would find it all that great if some WWII pilot was exulting in all the Japanese kids killed in our air raids. Why then should someone who gets a criminal off who hurt people be happy?

    So Long Time PD, be happy with your wins. More power to you. Just don’t whine when legislators ignore you.

  21. ProudDefender

    SPO, you are misunderstanding the most fundamental premise of the United States criminal justice system. Unlike some other countries, our juries don’t decide between “guilty” and “innocent.” They decide between “guilty” and “not guilty.”

    Not guilty doesn’t mean innocent. It means not — proved — guilty — beyond — a — reasonable — doubt. Now that COULD mean the jury decided the person was innocent. But far more likely, the jurors reached a whole range of conclusions ranging from innocent to maybe to probably to I’d-sure-bet-he’s-guilty. It can also include the very common he’s-guilty-but-not-of-the-crime-the-prosecutor-decided-to-go-for.

    Your hypothetical is false because it presumes first that defendants only come in two flavors–innocent and guilty, and second, that someone besides the defendant can know for certain which one the defendant is.

    But I’ll answer your original question anyway: in my last 10 cases, my record just happens to be pretty close to your hypothetical. Only two convictions (and in one of those, to illustrate my earlier point, the defendant was convicted of less than he was charged with, and was sentenced to less than the plea bargain he’d declined–so what category does he go into? And what category do the hangs go into?). To answer your question, I WOULD IN A HEARTBEAT be willing to have a “record” of 9 losses to avoid having an innocent person convicted. The thought of an innocent person being convicted sickens me, and has kept me awake for days on end during trial. My “record” is irrelevant.

    Believe me, you don’t become a public defender so you can get a winning record. And you don’t do it for the “fun” of walking “guilty” people. You do it in order to force the criminal justice system to pay individual attention to an individual defendant, and to force a modicum of procedural protection for that defendant. If at the end of the process, the prosecutor succeeds in proving guilt beyond a reasonable doubt, you’ve still done your job, no differently than when the prosecutor fails to prove guilt beyond a reasonable doubt.

  22. SPO

    I don’t misunderstand anything. I get it. We have a presumption of innocence, and a “not guilty” verdict can mean all sorts of things. But that’s not what I am talking about. At the end of the day, criminal procedures are just means to an end, namely to have a reliable way of determining whether someone did it or did not do it. The system, theoretically anyway, is designed to minimize “false positives” and does so by creating a burden on prosecutors to convince 12 citizens of another’s guilt beyond reasonable doubt, which, of course, will result in “false negatives” from time to time. (The other reason for the jury system has nothing to do with truth-seeking, namely, it is a limitation on government power.)

    This thread began with a hyperbolic statement that justice and a conviction have nothing to do with each other. A citation to a very bad outcome, namely an innocent man doing a lot of time, was used as an example. My view is that the Masters case showed how injustice can result from the improper use character evidence to prove conduct, you know, the “forbidden inference”. There are very very good reasons for evidentiary rules to prohibit evidence (e.g., disturbing drawings) designed to prove nothing more than the defendant is a bad (or weird) guy from which the prosecutor can argue that the defendant therefore committed the charged crime.

    It seems that from the reports about Masters that the sheriff had it in for him. That, my friends, is life. We live in a human world with human frailties. I’m sure the sheriff thought that he was removing from society someone who would kill others. But following time-tested procedures attenuate the effect of people like the sheriff. That’s the point you should be making about Masters, not some rant about how all convictions are suspect because they have nothing to do with justice.

    As for “fun”, well, I think that was well-justified in light of other posts. I did not mean to imply that all PDs exult at getting guilty guys off. When someone has such an attitude, which is appalling in its self-indulgence, that person’s views are easy to simply ignore.

    I’ll give you guys the last word if you want. I will, of course, concede that there is a lot of incentives for innocent people to plead in our system. Do you guys have any solutions? Maybe mandatory training for prosecutors and police about the phenomenon of false confessions? Maybe making the prosecutor sign an oath when taking a plea that he or she believes that the guy actually did it.


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