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"there will always be many more guilty people who beat the rap, than innocent people wrongfully convicted."

That's the way it should be, but I'm not at all sure that's what's happening, certainly not where I live. Roberts' article is slanted, no doubt about that, but there is also a great deal of truth in some of the things he's saying. I don't really think like you say that the criminal justice system is slanted in favor of defendants. I understand how people reading the news or watching it on TV an come to that conclusion, but I don't think that the reality of the criminal justice system is very well reflected by what people see in the media.

It must seem to people that guilty people are getting off left and right. We hear all the time about high profile cases where it has happened. We hear about the trials and we hear about cases where evidence was suppressed and defendant's get off on "technicalities." In real life, for every suppression motion that is granted there were probably more than a hundred denied, and none are filed in most cases. People just don't tend to walk away from criminal charges with a dismissal or an acquittal very often. Almost every one of them is convicted. In better than 95% of the felony cases filed the accused will be convicted of something before the case is over.

In my experience of several years handling criminal cases, even if the darned prosecutors know a person is innocent they still tend want the guy to plead to something. They hate dropping cases. I had a silly little domestic battery case this morning where the prosecutor was insisting my client plead or we were going to have a trial. She told the "victim" not to talk to me. She did agree to reduce the charges and give a very light punishment and something that would stay off my client's record, so my client who swore up and down she was innocent was willing to take it because she didn't want to risk going to jail. Everyone knows our judge tends to convict almost everyone and he's really tough on folks. As we were talking to the judge the "victim" volunteered that he was not at all a victim in this case, that he had a terrible drug and alcohol problem and had beaten his wife severely in the past, and that he in fact was on a lot of pills when the incident for which my client was charged occurred, and that he had jumped on her choking and beating her such that family members had to pull him off. They were both arrested because he had marks too. Her witnesses were there but I could not guarantee her the judge would acquit her, so she wanted to take the deal rather than chance it. Her ex-husband whom she hasn't spoken with since the incident said he didn't think it was fair that his ex-wife had to plead to anything and he was upset that the prosecutor was pushing the issue even though he had told her the whole truth and admitted that he was in fact guilty but his wife was not. After his tearful plea to the judge the judge did agree to drop the charges against the woman. But had the man not done the right thing in front of the judge, the prosecutor, even knowing full well she was screwing this lady defendant royally, would not back down because she would rather "win" than do the right thing.

It is true that most people charged with a crime are guilty. In fact, most will come around and admit they are guilty an take their lumps. Nationwide only something like 2.5% of all felony cases will make it to trial. A few of the remaining cases will be dropped but ninety some odd percent of the time these people will plead guilty. I handle an awful lot of criminal cases. I've had as many as 170 separate felony clients at one time. One of the guys in my public defender office now has close to 200. Most of these people will tell us they are guilty of at least some of what they were accused of doing. A lot will profess their innocence throughout their case but ask to plead because they say they are afraid of going to trial. I had a guy the other day who swears he is innocent tell me he would run so the bailiffs would shoot him before he would go to jury trial. He entered a no contest plea a couple of days later.

Personally, I think that particular guy was guilty as charged, but it was a sex crime involving children and those guys almost never admit it even to their attorneys because they can't bring themselves to tell another man about something so sick and reprehensible. Probably most of the people who profess their innocence to me are lying to me though. I know that. I also believe though that some of them are not lying, and I have strongly recommended we bring cases like that to trial and had people refuse simply because they were terrified of going before a jury. I hate doing pleas under those circumstances, but cannot force someone to go to trial. What if things don't work out our way at trial the jury returns a guilty verdict and the guy ends up spending a substantial portion if not the rest of his life in prison? Jury trials are crap shoots. I hate doing it when I really believe the person is innocent but I sometimes I have to do it and just hope that the guy has snowed me big-time and really is guilty because it bothers me so much to think that I am pleading someone to a crime he did not commit.

Is the deck really stacked in the defendants' favor? No way. Most all people charged with crimes are relatively poor. Our public defender office probably gets in the neighborhood of 80% or more of the felony cases filed in our county. The others who don't use our office generally aren't any better off unless they have a whole lot of money and can afford to pay for private investigators, jury selection services, expert witnesses, and so on. For the most part these people are hiring some overworked attorneys who are too busy on their divorces and custody battles and other civil cases to devote much time to their criminal cases. They won't get the "Dream Team" or anything like that. Their lawyers in most instances won't spend a dime on their cases. In fact in many instances their lawyers won't even be that proficient in handling criminal cases. If I had a nickel for every time a private attorney asked me how to proceed in a criminal case I'd have a big giant jar full of nickels. A lot of these guys really don't know what they are doing. A lot of them have never tried a criminal jury trial, or at least haven't tried one in years. They don't know if the offers they are getting are good offers or bad offers. They don't understand the law. But hey, they're "real lawyers," not public defenders.

Just how is the deck stacked in a criminal defendant's favor? Is it this "presumption of innocence?" Do you really think judges and jurors presume every one brought before them to be innocent until the prosecutor proves otherwise, or do they strongly suspect that everyone charged with a crime is most likely guilty? Is it the "beyond reasonable doubt" burden as opposed to the preponderance of evidence burden in most civil cases? I don't think many people understand what reasonable doubt burden is all about. If they think it's more likely than not that a person is guilty, they'll convict. That's the preponderance of the evidence standard. Is it because prosecutors are supposed to provide the defense with all the exculpatory evidence? Prosecutors hide evidence from us all the time and judges for the most part let them get away with it. Judges tend to be prosecutors in black robes. While there may be a few exceptions, most judges will bend over backwards to rule in the prosecutor's favor if there is any possible way he can get away with doing it in a manner not likely to be overturned on appeal. And as for discovery of evidence, it's much easier to get the evidence against your client in a civil case than in a criminal case. In a civil case you can take depositions of all the witnesses under oath and know exactly what they are going to say at trial or have the transcript of the depo there handy to catch them when they change their stories. You can send out interrogatories that must be answered under oath. You can send out requests for admissions. None of that is available in a criminal case. Some witnesses will talk to me, others won't. Prosecutors routinely tell them not to talk to us. If a state's witness does talk to us nothing will be under oath and they don't have to answer anything they don't want to answer. In a civil trial I can know what is coming and be prepared. In criminal trials I have to guess, or take the word of a prosecutor when I know from past dealings I can trust them only as far as I can throw them. Some are lying sacks. All it seems will bluff and stretch the truth about the evidence they have. The game we end up playing is often not about what is right and what is wrong, it's about winning at all costs.

I don't think people can really understand what they are up against until they are accused of a serious crime and have to go through the system. The deck is stacked heavily in the prosecutor's favor. Judges tend to favor them. Jurors tend to favor them. The accused is rarely believed. People with badges tend to have built in credibility even if all of us in the system know they are big liars, and we know which ones can't be trusted. The prosecutor holds all the cards. If he knows his case is weak or nonexistent, generally he's going to try to make an offer we can't refuse. I may believe my client is innocent, but if the prosecutor makes a really good offer and my client weighs that in one hand with the possibility of going to prison for a long time in the other, whether he did it or not he's going to be tempted to cut his losses and take the deal rather than rolling the dice for an acquittal risking significant prison time. He's up against the prosecutor, the prosecutor's large staff, his investigators, all in law enforcement who in effect work for the prosecutor, and the prosecutor's great big war chest. The prosecutors budget from the county here is several times our budget. On top of that they make money from hot check collections and obscene amounts of money from asset forfeitures. If they need to hire expert witnesses, no problem. If they need to fly witnesses in from several states away and put them up in hotels, no problem. Whatever they need, it's taken care of. You should see them at trial with all their staff and fancy computer equipment. Our yellow notepads are about as fancy as we get. We run out of money in our office every year for postage stamps. Do we ever hire expert witnesses? That's happened a couple of times in death penalty cases but almost never in any other types of cases. What happens if our witnesses live out of state? Our clients better hope the witnesses can afford bus fare and hotels and are willing to make the trip. Oh, and we can't threaten to file charges and put our witnesses in prison like the prosecutors can so we can't exactly force people to come in and say what we want them to say. The playing field is nowhere near level and it won't be even if you hire a private attorney unless you have the money to hire a really good one who will put a good bit of money out for investigators, paralegals, jury consultants, expert witnesses, and on and on. I saw the lady who handled Koby Bryant's rape case speak at a continuing legal education seminar. She had over forty people working on that case and it never even went to trial. If you have a public defender or a regular lawyer you paid a few grand, odds are the only person working on your case will be that one attorney in between all his other cases and maybe a secretary who helps him with notices and standard motions.

We see all the coverage of these high profile cases on TV and a lot of people must think all cases are handled that way. In real life cases are nothing like what you see on TV. In my state, there are no grand juries. In my county there are no pretrial hearings where a grand jury or even a judge decides if there is enough evidence to go on. If a cop or anyone else accuses you of something, you'll be charged and except in the exceedingly rare case where the prosecutor decides to drop the charges, or the even rarer case where charges might be dismissed by a judge because even if everything you are accused of doing is true it doesn't meet the definition of a crime (happens once every few years here), your case will not end unless you plead guilty or go to trial. If the case is weak as hell, the prosecutor will likely try to bully you into pleading to something anyway. Your guilt or innocence matters not.

And if you go to trial here, it won't last weeks and weeks, or months as we sometimes see on TV. I've seen death penalty cases take just one day here including the time it takes to pick the jury. Most criminal jury trials last no more than a day or two. The attorneys in my office have a combined experience of over 70 years now practicing law and none of us has ever had a felony trial last more than four days. I've never heard of one in my area lasting more than a couple of weeks, and that one I am thinking of was a multiple murder/rape death penalty case blasted all over the media involving several co-defendants and several lawyers. Picking the jury tends to take no more than a couple of hours to a half a day here, and most of that time seems to be taken up by procedural matters rather than actually questioning jurors. Judges demand that we move on if they think we are taking too long. Normally we'll get maybe ten minutes for opening statements and fifteen for closing arguments. Judges make every effort they can to get the cases over with as soon as possible because our dockets are far too full to waste any time in the courtroom. It seems like they are up there saying "hurry up and convict this guy so we can move on to the next case."

If you go to trial, the prosecutor will try like crazy to get you the longest possible sentence, not so much because you deserve it or because that would be the best thing for the community, but because you didn't plead and the prosecutor wants to punish people and their attorneys when they don't shut up and plead. They can't have us bringing a bunch of cases to trial, so they do all they can to discourage us. Shoot, these guys where I live go out of their way to find something else to charge people with if the person is lucky enough to win at trial. They are incredibly vindictive, even if the reason they lost is because the guy was obviously innocent. To them it doesn't seem to matter what is right and what is wrong, it's a competition with us. They pride themselves in putting as many people in prison as they can. Their plea offers are excessive compared to those from prosecutors in neighboring counties, and every attorney working in this area dreads having to deal with them. They demand excessive bond amounts and the judges oblige them. Your clients see what people get for the same crime the next town over and they think you aren't doing your job. They fight dirty and their main goal at trial is to get the most severe punishment possible, even when they will freely admit to us in private that such punishments were not really warranted under the circumstances. It's all about forcing us to shut up and plead next time.

Unfortunately, our local jurors tend to oblige them as well. Unlike a lot of states where juries convict and judges sentence according to a sentencing grid, here juries do the sentencing and they tend to hand out far more lengthy sentences than people ever would imagine juries would hand out. It's especially bad in drug cases. You are better off killing someone than being involved with drugs in my county when it comes to our juries.

I do believe there are more guilty people walking the streets then there are innocent people in prison. But the reason I believe that is because I know there are a lot of people out there who haven't been caught. Things are different from county to county and state to state, but I think in my county there are probably more innocent people who are convicted than there are guilty people who somehow avoid being convicted on charges brought against them. It's probably that way in a lot of places. Almost no one walks away without having to plead to at least something. If you are accused of a crime, it's plead or roll the dice at trial. There is no door number three.

I know it is true that most people who profess their innocence who plead anyway are actually guilty. But there is no doubt in my mind that some of these people are innocent. I think it's easy for us to say that we would never plead to something we didn't do, but maybe it wouldn't be so easy for you when it came right down to it. If you could plead to maybe a fine and a suspended sentence, with the right to petition for expungement of your record in a few years, you might take that rather than go to trial somewhere where almost everyone is convicted and where sentences tend to be extremely harsh. The chance you would plead would go up exponentially if you were sitting in an awful county jail a few months unable to make bond with a bunch of scary criminals all telling you horror stores about trials here. If your lawyer told you you could get out tomorrow with a suspended sentence, you just might take it.

It is very disturbing to me to think that under my watch people are being convicted of crimes they did not commit. It bothers me no end. I always have subscribed to the belief that it is better that several guilty people avoid conviction than one innocent person be wrongfully convicted. That's an old principle that had always been well accepted in our country. Things are changing though. Now more and more people are arrested. More and more conduct is being criminalized. Crimes that were once considered not so serious are increasingly seen as far more serious. More and more misdemeanors are turning into felonies. More felonies are being bumped up in their classifications such that the minimum and maximum sentences are increasing greatly. More sentence enhancement are being added. People seem to believe more than ever in the power of prison to deter others from committing crimes. Prison is becoming the solution for all societal problems. We've gone from putting very few in prison in the 1800's, to putting a higher than average number in prison in the 1900's, to putting more people in prison than any other country in the world per capita and in total in the last part of the twentieth century. Our incarceration rate is now several times what it ever was prior to 1979 or so. Aside from a couple of tiny countries with prisons holding only a few hundred people who are in large part foreigners, the only countries with incarceration rates anywhere near ours are hellhole countries like Russia and Belarus and Kazakhstan. It's gotten out of hand.

This prison craziness is completely unprecedented in this country. There is not one thing conservative about it. It's incredibly wasteful and expensive and inhumane. We are not getting a good return on the dollars we are spending. This is not making America a better place. People will say crime rates have dropped some since we started putting so many in prison, but crime rates here are still among the highest in the world. Surely we could find better ways of dealing with our societal problems than locking up our people at a rate several times that of most civilized nations.

And be sure of one thing, when we lock up millions of people as opposed to the few hundred thousand we used to lock up, or the few hundred thousand we'd have locked up now if our incarceration rates were around the average of all industrialized nations, we are no doubt locking up far more innocent people than we ever did in the past. You will admit that some miscarriages of justice are inevitable. The percentage of miscarriages of justice may remain constant and only increase proportionately to the amount of "justice" meted out by our criminal courts. I suspect though that the percentage of miscarriages of justice is not only increasing proportionate to the percentage of "justice" being meted out, but that additional miscarriages accrue as prison sentences get longer and the incentive to plead increases and as our criminal dockets increase, both creating a feeling of a crime epidemic and a need for prosecutors, judges, and defense attorneys to clear these overburdened dockets.