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LegalGround >> Interesting conversation with long time attorney


12/27/08 12:55 AM
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Shaz
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I was talking with a criminal defense lawyer the other day who has been practicing for several decades. He and I recently had a case together where five guys got arrested for a home invasion and I indicted them. After a few months and a lengthy and involved investigation, it was determined that while the home invasion occurred, only one of the five indicted actually did it. We dismissed the indictment against the four who were innocent, arrested three more guys who were the real culprits, and the four we had all pled guilty.

It was notable for me because it was the first time in my ten years as a prosecutor that I (in my opinion) had an innocent defendant. It was certainly the first time I dismissed an indictment.

So I was talking with this lawyer (he had one of the innocent guys), and he told me that he believed the guy from the beginning, there was just something about him that made the lawyer believe his innocence - above and beyond all the other clients who claim innocence and then fess up later.

The interesting thing was that he told me that in all his years as a defense attorney, this was only the second time that he believed that he had an innocent client, that is - truly innocent, having nothing whatsoever to do with the crime charged. The only other one was several years ago, it actually went to trial and he got an acquittal.

I've spoken with other attorneys and while they all say their biggest nightmare is representing someone who is actually innocent (due to the stress of possibly losing at trial), most will admit (off the record of course) that they have never had an innocent client, or maybe just once.

I guess the point is that while of course it is certainly possible for an innocent person to get caught up in the justice system and be wrongly accused, I honestly believe that it is extremely rare and certainly not as common as some of the pundits would have us believe. In my entire career, while this was the only indictment I ever dismissed, I only had one other defendant ever that I truly believed was innocent, and dismissed her case prior to indictment.

The thing to remember about prosecutors that's important is that we don't make a lot of money. I barely get paid enough to convict guilty people, I certainly don't make enough to convict the innocent :)

-Shaz!
12/27/08 6:58 PM
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jbapk
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"most will admit (off the record of course) that they have never had an innocent client, or maybe just once."

Respectfully, but I don't believe that for a second, and my experience is quite the opposite.

Most guilty? Probably, almost certainly. One in decades of practice? No.
12/28/08 1:52 PM
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bflex
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Innocent is a tricky word. Have I ever had a client who had absolutly nothing to do with the crime charged and no knowledge of it? No. Never. Have I had a client who was charged with something he didn't do? Yes, occasionally. Were they "innocent?" No. Usually they did something.
12/28/08 1:59 PM
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Shaz
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jbapk - "most will admit (off the record of course) that they have never had an innocent client, or maybe just once."

Respectfully, but I don't believe that for a second, and my experience is quite the opposite.

Most guilty? Probably, almost certainly. One in decades of practice? No.


I'm only passing along what the guy said, and this is someone who is a pretty hardcore defense attorney too.

-Shaz!
12/28/08 5:56 PM
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Bunkou
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Maybe it's different in your jurisdiction. But here, of the felonies I deal with:

Thefts, forgeries, fraud, etc.: Yeah, I've never had an innocent one. Except a stolen car case where the successful defense was just that the guy was too stupid to realize it was a stolen car.

Drug cases: Very rarely innocent, but you do find the occasional unwitting possession.

Adult sex assault cases: Almost always innocent. It was working at the prosecutor's office in the sex assault division that convinced me to become a defense attorney. Child sex assaults are trickier. I'd still say a good third are innocent.

Assaults: Guy who wins gets charged. Often it was self-defense. The rest of the time, yeah, they did it, but the guy who gets it almost always deserved it, so it's guilty by technicality only.

Domestic violence: messy, messy area. Everyone's guilty, including the complainant.

In misdemeanors I see a lot of innocent people, but innocent people never go to trial, they take deferred pleas.
12/28/08 8:53 PM
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bflex
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Yeah, it varies by case. I'll go through your list.

Drug cases: Sometimes technically not guilty on a constructive possession argument.

Adult sex cases: Messy. Fucking a mentally unstable drunk chick leads to problems. ALWAYS. People should know better.

Assaults: Should usually be simple affray or disorderly conduct. Very rarely does an unwilling participant get hit.

DV: OK, somebody got hit, but usually there was a physical altercation going on where both should have been charged. Very rarely is there just a case of a serial abuser. Most of the time, the bitch deserved it. If you go out sport fucking and your husband catches you, you need a slap.
12/28/08 11:41 PM
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GladiatorGannon
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bflex - DV: OK, somebody got hit, but usually there was a physical altercation going on where both should have been charged. Very rarely is there just a case of a serial abuser.


similar experience on my end, very few situations that involve the kind of serial abuse the law was written for. one (female) cop with 3 years of street experience told me she had only encountered one so far. i encounter them a little more frequently than that, but you get my point.

the laws are very poorly written, and i'm terrifed that someday i may end up arresting an innocent person.
12/29/08 10:07 AM
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bflex
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Gannon - I don't know the laws in Mass., but in FL, the police are stautorily prohibited from arresting both individuals. Additionally, for DV only, if no arrest is made on a DV call, the individual officer and the department can be held civilly liable if something occurs after the police contact. However, if an arrest is made, there can be no civil liability. Hence, officers always make an arrest, even for a screaming match just to cover their ass.
12/29/08 12:37 PM
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Bunkou
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Similar in Hawaii. If a complaint is made, an arrest must be made. Worse, the prosecutors have a no-drop policy, so everyone arrested is charged and sent to court.

When I was a PD, I helped hundreds of people plead guilty, without ever looking at the evidence, simply because the judge gave them a choice of "get out of jail today on two years probation, or stay in jail a minimum of three weeks until your first trial call."

Because, ya know, that's fair and all.
12/29/08 3:16 PM
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GladiatorGannon
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bflex - Gannon - I don't know the laws in Mass., but in FL, the police are stautorily prohibited from arresting both individuals. Additionally, for DV only, if no arrest is made on a DV call, the individual officer and the department can be held civilly liable if something occurs after the police contact. However, if an arrest is made, there can be no civil liability. Hence, officers always make an arrest, even for a screaming match just to cover their ass.


similar here, damn scary, and it puts the police in a very awkward situation. i think i've done right so far, but sometimes it's damn hard to achieve justice with laws so poorly written.

these laws were supposed to protect victims of domestic abuse, not empower a whole new class of abusers. a stalker that has a restraining order against the victim....what can you do?
12/29/08 11:07 PM
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bflex
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Gannon - It is really a pisser when the laws are written to be politically correct in response to the exception and not the rule. Example: The DV cases you always see on the news are the exception. However, because it is a political hot button issue, the legislature passes insane laws which are enforced by insane elected district attorneys in order to be "tough on crime" and get reelected.

What can you do? Cover your own ass. Look out for #1. If you have to make a questionable arrest, make it, but make sure that you tell the DA that your testimony might not be entirely favorable to the prosecution. Also, tell the defense attorney that you might not be a really bad witness. It is my experience that about 25% of defense attorneys would take the case to trial. The other 75% are chicken shits.
12/30/08 12:46 AM
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jbapk
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"Similar in Hawaii. If a complaint is made, an arrest must be made. Worse, the prosecutors have a no-drop policy, so everyone arrested is charged and sent to court."

To me, this is where the rubber hits the road in terms of "a good prosecutor will always drop the charges on a bad case."

If you have a no drop, or in some cases I've heard of no plea policy, then how exactly is that going to happen?
12/30/08 3:14 AM
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GladiatorGannon
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jbapk - "Similar in Hawaii. If a complaint is made, an arrest must be made. Worse, the prosecutors have a no-drop policy, so everyone arrested is charged and sent to court."

To me, this is where the rubber hits the road in terms of "a good prosecutor will always drop the charges on a bad case."

If you have a no drop, or in some cases I've heard of no plea policy, then how exactly is that going to happen?


because you can't fight the DV lobby, they're fucking nuts, and extremely powerful. the way they've managed to shape the debate, and indoctrinate society is scary. i myself was pretty brainwashed coming out of the academy, but i just kept on getting slapped in the face with reality until i was forced to see the truth. John Q Public never gets to see that, he is bombarded with hundreds of "movie of the week" stories, and thats what he bases his opinion on.
12/31/08 9:40 AM
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seg
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 From my experience, 90% of a criminal defense attorney's job entails getting the bullshit trumped up charges filed by the DA dismissed so that the defendant is only convicted of the actual crime he did commit, as opposed to the 10,000 things the DA charges him with in order to intimidate the defendant into taking a plea bargain.

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