I do post conviction work too. All of my clients are guilty. As you know, most of us on the defense side think so, anecdotally.
At the same time the level of police misconduct and prosecutorial abuse is shockingly high, and state appellate review of convictions is (at least in Illinois, and I don't think we are unique) shockingly lax and arbitrary, courts making up facts not in the record, asserting as established conclusions for which there is no evidence, and not being so sharp on the law either.
The rate of state acquittals is much higher than the federal rate -- 30-40% as opposed to .01%. I think a lot of the innocent or peoples whose rights were viulated get off that way -- not that a criminal prosecution won't wreck your life even if you are acquitted.
The feds generally don't try to go after someone outside the white collar area unless they think they make the case, thy are very good and have tremendous resources, and they face a much tougher, smarter, and less tolerant judiciary. The Stevens case shows that they can fuck up royally, but in my experience that is unusual. The problem with white collar prosecution (or defense) is that the statutes are so elastic.
--- On Tue, 4/7/09, J. <unspeakable.one at gmail.com> wrote:
> From: J. <unspeakable.one at gmail.com>
> Subject: Re: [lbo-talk] Abolition of prisons (Was: Angela...)
> To: lbo-talk at lbo-talk.org
> Date: Tuesday, April 7, 2009, 11:17 PM
> John Thornton wrote:
>
> >> Certainly the wrongly convicted constitute an
> immeasurably small
> >> percentage.
> >>
> >
> >> No. Anywhere from 2 to 10% in the US, which is
> small, but hardly
> >> insignificant, let alone immeasurably small.
> >
> >Is it 2% or 10%.
> >That's a awfully wide variance.
> >What evidence do you have that it is anywhere near 10%?
> >Have you actually met the people who go before a judge
> with a public
> >defender to plea bargain a case?
> >If .5% were not guilty of what they are charged with
> I'd be shocked.
>
> It is a wide variance. That's because there's no
> data. The only data that
> exists is that from DNA exonerations, but, of course, this
> data is woefully
> incomplete. Nobody believes that everybody who has been
> exonerated by DNA
> to date represents the sum total of wrongfully convicted
> people. Cases in
> which there is DNA evidence--sexual assault and some
> murders--are the
> exception, not the rule. Additionally, most DNA evidence
> from older crimes
> has been destroyed. (The reason Dallas County, Texas has
> so many DNA
> exonerations is because that county had an unusual policy
> of preserving
> biological evidence in the 1980s and 1990s. Most counties
> and states did
> not.) It is therefore impossible to know what percentage
> of people in
> prison are wrongfully convicted. However, what data there
> is suggests a lot
> of wrongful convictions (of course, still nowhere near
> "most" prisoners).
> This is because of what we learn from those DNA
> exonerations (e.g., that the
> most widely relied upon evidence in the criminal
> law--eyewitness
> identifications--is the least reliable form of evidence).
>
> My experience confirms this. I do post-conviction work.
> I've had about 10
> long-term clients in the past five years whose cases I have
> investigated.
> Of those, four were innocent. All dirt poor. Of those
> four, only one had
> any connection to the offense whatsoever (his mere
> presence). In that case,
> the guy who actually committed the murder--and who
> testified *for the State*
> in the trial--eventually committed another murder. While
> in prison for that
> murder, he admitted to committing both crimes. One case
> was caused by
> police and prosecutorial misconduct in conjunction with the
> true perpetrator
> having falsely implicated the client to spare the actual
> second participant,
> to whom he was close. He randomly picked the client out of
> a hat while he
> was being interrogated by police, who, due to the nature of
> the crime, knew
> there had to be a second participant and refused to take no
> for an answer.
> (The client had an alibi, which was disregarded by the
> jury, undoubtedly
> because he and his alibis were black). The last two were
> caused by
> egregious police and prosecutorial misconduct. Note that
> none of these
> cases even involved erroneous eyewitness identification,
> the most common
> cause of wrongful conviction. I recognize this experience
> encompasses an
> extremely small sample size, but note I do not claim a 40%
> error rate on the
> basis of it. The short of it is that adversarial criminal
> jury trials, at
> least where the resources available to the defendant pale
> in comparison to
> the State, are horrible means to accurately evaluate
> historical events.
>
> While the cases I have deeply worked have been few, I have
> reviewed many,
> many more cases at a more superficial level, e.g., read
> transcripts and
> court pleadings. It is impossible to determine if a person
> is wrongfully
> convicted without undertaking a time-consuming (and
> expensive) investigation
> (something that is rarely done by the defense lawyer before
> trial), but many
> of these cases on their face raise suspicions and present
> many avenues of
> potentially fruitful investigation.
>
> So my estimate of the rate of wrongful convictions is just
> that. But the
> kind of work I do places me in the best position of anybody
> to make this
> estimate. See also
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=%20931454.
>
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