06/03/2002
Statistically 93% of all prisoners plead guilty to their crimes in open court. 

Statistically 93% of all prisoners plead guilty to their crimes in open court. The numbers of prisoners incarcerated for the crime of perjury are insignificant. Maybe one out of a thousand, if that.

The United States Department of Justice, Bureau of Justice Statistics, (DOJBJS), admits that statistically 8% to 12% of all state prisoners are either actually or factually innocent. The DOJBJS finds that 4% of all federal prisoners are either actually or factually innocent. For the non-lawyers, I must explain the difference between actual and factual innocence.

Factual innocence means the person was guilty of some crime, but not necessarily what they were convicted of by society. For instance, I know a man who was convicted of a robbery for staggering drunk into a Kroger's, stuffing $26.00 worth of meat down his pants, and trying to leave the store without paying. In truth he was guilty of shoplifting and subject to maybe a maximum of six months in jail, probably suspended, and a fine. In reality, he has done almost 15 years for that meat he tried to steal, without ever hurting anyone. He is factually innocent.

Actual innocence means that the prisoner did not commit any crime at all. For instance, in my case, the first three rapes I am serving consecutive life sentences for were testified to have occurred, "The week after Christmas in 1988," and, "at least once a month each month after the first time." From November 17, 1988 (with the exception of three days in late May 1989 when I returned to the U.S. and then left by automobile for Belize) until July 20, 1989 I was living continuously in southern Mexico and Belize. That is actual innocence.

There is a discrepancy in these numbers that I'm sure many of you saw immediately. If 93% plead guilty, how can between 8% and 12% be innocent? The discrepancy is caused by two ingrained practices in the administration of justice in the country. First, the "plea bargain" system.

Faced with shortages of courtrooms, judges and money, the present judicial system relies heavily on over 90% of all persons accused of crimes entering into a plea bargain. If everyone demanded a jury trial, the system would collapse under the shear numbers of trials required. There would not be enough courtrooms, judges or jurors available to bring the millions of people arrested each year to trial. As a result, the government has a great interest in obtaining guilty pleas.

To ensure that high numbers of persons arrested plead guilty, the prosecutors of this nation have an unwritten policy of over-indicting all persons accused of crimes. Part of this policy is enacted through the prior offense sentencing enhancements applied to ex-felons. Even a crime carrying only two or three years in prison can be extended for an ex-con to ten or twenty years in prison by the prosecutor adding a sentencing specification that the person accused was previously convicted of a felony.

This results in ex-cons accused of relatively minor crimes facing up to twenty years in prison if they go to trial, even when they are falsely accused of a crime. Whereas, even if they are innocent of the crime, they plead guilty, the prosecutor will drop the sentencing enhancement and allow them to be sentenced to the time they would have had to do if they had been guilty. The difference is sometimes as much as 10 or 15 years. Ex-cons, faced with pleading guilty to something they did not do and doing two or three years in prison, or going to trial, facing a jury that will be told of their prior felony conviction through the sentencing enhancement, and receiving fifteen or twenty years if convicted, almost always take the guilty plea, even to crimes they did not commit, but of which they cannot conclusively prove they're innocent. The supposed presumption of innocence is negated by the jury hearing of their prior conviction.

Persons who have no prior dealings with the police or the law sometimes fair even worse if they are innocent. They, like most of you, do not believe they would ever be convicted of something they did not do. They make the mistake of believing the police are searching for the truth, as opposed to a name to close out the case. They do not understand that a police officer's only job is to arrest people and turn them over to the prosecution. They, too, are systematically over-indicted.

If they have committed a crime, they are faced with being charged for crimes much more serious than they actually did. In most cases, the prosecution drops the over-indicted charges and allows the person to plead guilty to what they actually did. In some cases, however, because the nature of the crime is especially heinous, such as child molestation cases, the prosecutor maintains forcible rape charges when the actual crime committed more resembled "playing doctor." Since those charges carry life sentences, the defendant is forced to trial, and frequently convicted of a much greater crime than was actually committed.

If, however, the defendant happens to be innocent, and has no experience with the judicial system, they sometimes plead to a lessor offense offered as a plea bargain based on simple fear of conviction on the greater charges brought. It is common knowledge in the county jails that if you go to trial, you will receive the maximum sentence possible. The prosecutor always punishes the defendants who go to trial by maintaining the over-indicted charges that were originally intended just to "scare" the defendant into taking a guilty plea. It is also how prosecutors maintain high rates of guilty pleas through it being common knowledge in the jails that if you go to trial you will be sentenced to the maximum possible sentence.

Thus, innocent defendants of both factual and actual nature, plead guilty. Both those experienced with the judicial system and those inexperienced with the judicial system, and those inexperienced with the judicial system, and the statistics between the numbers of guilty pleas and the numbers of innocent in prison overlap.

Second, the Grand Jury system in this nation is a one-sided proceeding. Only the prosecutor presents evidence and arguments to the Grand Jury. In the large numbers of honest charges presented to the Grand Jury, and the confidence the Grand Jury gains in the prosecutor's "honesty" during those proceedings, it is not hard for a prosecutor to slip in a few cases that are shaky, and obtain indictments on those also. After all, one in ten is all it takes to generate the numbers above.

Third. Why is obtaining a conviction so important, that prosecutors who are charged by oath to uphold the law will sometimes go to extremes to ensure a conviction in a particular case? Because if they do not, then in the next election their opponent will be pointing to the cases they lost, and to the lawsuits for false arrest the county had to pay. Further, the prosecutors have to work daily with the police on serious legitimate prosecutions. They cannot afford to alienate the police by seeking any other "truth" than the "truth" the police present to them, even when it later becomes questionable as to whether or not the right person, or the right charges, are being pursued. It is simple politics. My observations are that the prosecutors would rather keep an innocent person in prison and counteract that person's protestations of innocence through sound-bite press releases, than admit that the person is innocent, even when faced with overwhelming proof of innocence. For instance, it was either Professor James S. Liebman of Columbia University of New York (co-author of Federal Habeas Corpus Practice and Procedure), or attorney Barry Scheck of the Innocence Project that related in a recent PBS Frontline Report on Innocence that when faced with DNA evidence proving a prisoners innocence, prosecutors frequently come up with a "third party co-defendant" theory as a defense, even though in eight or ten years of trials and litigation, no co-defendant was ever even alluded to in the testimony presented. What is more surprising is that judges, such as the judges of the Texas Criminal Appeals Court, have adopted these totally fictitious theories to deny appeals in DNA cases.

Fourth. Defendants face former prosecutors at every stage of appeals as the elected judges in state courts and on Petition for Writ of Habeas Corpus in federal courts. Former prosecutors are your federally appointed judges, they are your Attorney Generals, they are your Governors, they represent you in the House of Representatives in both your state legislatures and congress, and they are your Senators. Of course, if a prosecutor does not "play ball," he will never see these jobs offered. In the last 21 years more former prosecutors have been appointed or elected as federal and state judges than at anytime in the history of this nation. Almost all are backed by the local Republican party, including the owners of the major media outlets charged with reporting any wrong doing by them. In the past 20 years the Republican party, through control of the White House and Congress, has made major inroads into getting elected or appointed to the judiciary conservative right-wing judges who are almost all former prosecutors.

Criminal defendants face a stacked deck with the judges reviewing their cases, or presiding at their trial, usually having been colleagues for years with the prosecutors prosecuting their case. Prosecutors are assigned to judges for months at a time, and present case after case to that same judge, learning their strengths and weaknesses in the law. Judges remember their frustration as prosecutors when other judges forbid them to place inadmissible prejudicial evidence before a jury, and because of that, some defendant who was obviously guilty walked free. Those memories affect their rulings as judges when they are convinced by the prosecutor that the defendant is guilty before the trial starts. By skewing evidence filings, that belief can result in a jury being skewed by evidence that another judge may not have allowed into the trial. The defendant loses the presumption of innocence through biased evidentiary rulings that circumvent the right to a fair trial and a determination by the jury as to guilt based on evidence as to the crime charged.

At this point the second major ingrained practice comes into play. When the United States Supreme Court decided in 1963 that every person accused of a felony was entitled to assistance of counsel, the States were left on their own to fund representation for indigent defendants. The compensation system set up has several serious flaws.

First, attorneys get paid based on the seriousness of the charge, whether or not they go to trial. So it is in the attorney's personal interest for the client to plead guilty in 15 minutes, as opposed to taking the attorney away from paying clients for a two day, o two week, trial. The attorney receives the same compensation either way.

Second, more experienced attorneys, with thriving practices, are able to avoid taking many court appointed cases by showing conflict with other trial dates, or a heavy case load. Thus many persons accused of serious crimes, but unable to afford $400.00 an hour attorneys who generally want 25 to 50 thousand dollars up front to take a serious criminal case, are assigned new attorneys fresh out of law school as their defense counsel. These attorneys, new to the legal community, have little in the way of funds to investigate the cases assigned. They are struggling to make ends meet. These new attorneys are anxious to "get along" and not make waves with judges who can break them by appointing cases to other new attorneys, or by appointing cases the judge feels has a great chance of going to a lengthy trial. These same attorneys cannot afford to alienate prosecutors who solely decide what cases they will take a plea bargain in, and what cases they force to trial. A "quid pro quo" system develops where prosecutors "urge" these attorneys to push their clients into a guilty plea to a lessor offense in cases where the prosecution has doubts about being able to convince a jury of guilt. This is one of the best kept secrets of the judicial system. In many cases of men that I have talked with over the years, the first time they saw their court appointed attorney was the day they went to trial. I have met murder defendants who have talked to their attorneys less than an hour in the nine months they sat in jail before trial. In many other cases, the first words out of the attorney's mouth were, "I think I can get you a good deal." They didn't even ask the man if he was guilty or innocent.
If they do go to trial, they are faced with a prosecutor who tries criminal cases day in and day out, month after month, and defended by an attorney who makes a living doing divorces, probating wills, or writing contracts.

Appeals for indigent defendants are represented by similarly unqualified attorneys, most of whom in Ohio, have no clue as to what is required by the Exhaustion Doctrine to preserve the errors raised for federal review.  One of the more "illustrious" law firms out of Dayton Ohio filed an appeal for a man here last week.  He asked me to review it.  One of four assignments of error were preserved for federal review.  All the rest were procedurally defaulted by the raising of the error strictly as state law errors.  But that is another story for a later time.

As a result of the above combined flaws in the system, 8% to 12% of all State, and 4% of all federal prisoners, are either actually or factually innocent.

The mean of 8 to 12 percent is 10%.  There are 1,550,000 State prisoners in the United States. 10% of that number is 155,000 innocent people.  There are 450,000 federal prisoners.  4% of that number is 18,000 innocent people. 155,000+18,000=173,000.

As you read this article, somewhere down the road from you an innocent man or woman sits on a prison bunk, as I am right now, looking in despair at concrete walls and steel.  Across this nation, as you read this article, 173,000 innocent men and women sit in prisons and jails.  That's 87 entire prisons full.

I know, it would never happen to you, so why should you care?  Well, I never thought it would happen to me either.

The discourse in the media concerning the numbers of innocent death-row prisoners is a smoke screen designed to focus your attention on the tip of the problem and away from below the surface of the problem.  By focusing your attention on the artificially visible tip, maybe you will miss the iceberg below the surface of innocents sentenced to life, or what might as well be death in relation to their statistical life expectancy.

You might see a headline in the New York Times that reads, "83 Innocent Death Row Prisoners Released From Prison,"  but you'll never see a headline that reads, "Department of Justice Admits There Are 173,000 Wrongful Convictions Nationwide."