A large number — no doubt many people — arrested by the police are guilty.  Often enough, they’re even actually guilty of the crime for which they have been arrested.  No matter how much of a true believer one might be as a criminal defense attorney, this much has to be admitted.

Feelings of the average law enforcement official, district attorney, or juror notwithstanding, it does not follow from this that everyone charged with a crime is guilty of having committed the crime — or even that most are. And remember, Fresno County has a large number of people who are acquitted at trial, even though many people in this area seem to think that “if he is sitting there [in court], he must’ve done something.”

If it were true that everyone arrested was guilty, we’d have absolutely no need of trials.  And, again refusing to take into account the feelings of the average law enforcement official, district attorney, or juror, trials are a necessary component of any system that aims at justice.

Ironically, I have found that it’s often easier to defend guilty people than it is to defend innocent people.  For one thing, guilty people are typically less angry or upset about the fact that there is no justice in our courtrooms these days.  They almost seem to expect it.  But get an innocent person charged with a couple of strikes with the prosecutor offering a plea bargain of a non-strike felony and you’ve got a real problem.

Think about it.  Innocent people do get convicted.  How many stories have you heard about people being exonerated after some incredibly long period of years in prison?  There are hundreds of such stories.  And those are just the innocent people who we later find out were wrongly convicted; what about the ones for which innocence is never discovered?

So you can’t pretend there’s no risk.  You can’t say to yourself, “Well, if the person is innocent, then you’ll probably win at trial.”  It all depends on the evidence.  And if Americans have learned anything about the concept of “spin” in the last couple decades, I hope we can at least recognize that the evidence is going to depend in large part on who is doing the collecting of it.  Again, that’s why we have trials.  We want the evidence subjected to the crucible of adversarial testing.

So if you have an innocent client in the scenario I outlined above, you have a real difficulty.  A guilty client being offered a non-strike felony in place of the right to take a chance on two strikes at trial will probably not give you too much grief over your recommendation that he accept the offer.  An innocent person is going to be wailing and gnashing his or her teeth.  They’re going to want to fight it all the way if they can.

And if you do convince them of the serious risks ahead and as a result, they accept the deal, then you may have trouble sleeping for awhile.

What does this say about our system?  I’m not exactly sure.  I mean, it’s not like I didn’t already know the system had problems.

What am I trying to say by writing about this?  I’m not exactly sure about that, either.  However, I did have a situation recently in which I believed my client was almost certainly innocent.  Almost certainly.  And we were faced with exactly the kind of dilemma I outlined above.  (In fact, it was a little worse, but I don’t want to write the details here.)  My client could fight, take his chances and probably would have ended up convicted, based on the evidence and police reports.  But, as I said, he was almost certainly innocent.

In the end, he and his family decided that it was better to take the offer than to risk the alternative.

I’ve wondered since then if I shouldn’t have pushed them to reject the offer.  But the truth is that if they followed that advice and he was convicted, I would have probably had even more trouble sleeping than I do now.

There are really only two things I can hope writing about this will accomplish:

  1. That people who might one day serve on a jury will read this and remember that “defendants” are people who have been accused of a crime, but that being accused doesn’t mean they committed the crime — that’s why we have trials!
  2. That maybe there will be some discussion, or at least thinking, about this kind of situation among people who read this note.

I look forward to hearing from you.

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41 comments

  1. son arrested because of past record and is innocent and given a plead for 4 yrs probation and 26 suspended sentence and $5000 fees that needs to be paid in 1 year for something he did not do. just got off probation for a plead he took in 2000 for something he did not do but a person that file charges against him knew police. If they are so sure he did the crime why plead bargin why not go to trial and prove with out doubt he has commited this crime but they know it is not true. and they are only going after him cause of his past he was new to area and did not even know another person they said was involved or been in the area where crime took place. has a public attorney that is not doing any thing but tell him he was f====ed from day one cause of his past and the charges that they are building his file up with that are not true to get a aggrivated sentence if he does go to trial damned if he do damned if he dont.

  2. son arrested because of past record and is innocent and given a plead for 4 yrs probation and 26 suspended sentence and $5000 fees that needs to be paid in 1 year for something he did not do. just got off probation for a plead he took in 2000 for something he did not do but a person that file charges against him knew police. If they are so sure he did the crime why plead bargin why not go to trial and prove with out doubt he has commited this crime but they know it is not true. and they are only going after him cause of his past he was new to area and did not even know another person they said was involved or been in the area where crime took place. has a public attorney that is not doing any thing but tell him he was f====ed from day one cause of his past and the charges that they are building his file up with that are not true to get a aggrivated sentence if he does go to trial damned if he do damned if he dont.

  3. Recently arrested for grand larceny which I’m completely innocent. Went to 3 of the best attorneys in a 2 hour perimeter and all 3 said to take the plea deal because the system is so unjust. All 3 say it canned be tried -but if it were them they would take the plea.

    As our civil liberties continued to be stripped from us consider a non violent revolution. Check out Ron Pauls “campaigne for Liberty website”.
    We need it to be “We the People” again.

    Unfortunately the only people reading this are in the same boat.

  4. Recently arrested for grand larceny which I’m completely innocent. Went to 3 of the best attorneys in a 2 hour perimeter and all 3 said to take the plea deal because the system is so unjust. All 3 say it canned be tried -but if it were them they would take the plea.

    As our civil liberties continued to be stripped from us consider a non violent revolution. Check out Ron Pauls “campaigne for Liberty website”.
    We need it to be “We the People” again.

    Unfortunately the only people reading this are in the same boat.

  5. Recently arrested for grand larceny which I’m completely innocent. Went to 3 of the best attorneys in a 2 hour perimeter and all 3 said to take the plea deal because the system is so unjust. All 3 say it canned be tried -but if it were them they would take the plea.

    As our civil liberties continued to be stripped from us consider a non violent revolution. Check out Ron Pauls “campaigne for Liberty website”.
    We need it to be “We the People” again.

    Unfortunately the only people reading this are in the same boat.

  6. In response to Mark, I must agree but the problem is many court appointed attorneys seam to fall in to the “I got you a good plea” category. I do not say this to offend those who actually care about their jobs but I certainly have seen it. I have also so seen court appointed attorneys who have given 110 % because they cared.

  7. In response to Mark, I must agree but the problem is many court appointed attorneys seam to fall in to the “I got you a good plea” category. I do not say this to offend those who actually care about their jobs but I certainly have seen it. I have also so seen court appointed attorneys who have given 110 % because they cared.

  8. If the system truly worked like it was suppose to then there would never be an innocent person convicted of a crime.

    “Innocent until proven guilty beyond a reasonable doubt.”How does one convince 12 jurors of someone’s guilt when they are in fact innocent??

    Our legal system isn’t about the truth but about who has the best lawyer.

  9. If the system truly worked like it was suppose to then there would never be an innocent person convicted of a crime.

    “Innocent until proven guilty beyond a reasonable doubt.”How does one convince 12 jurors of someone’s guilt when they are in fact innocent??

    Our legal system isn’t about the truth but about who has the best lawyer.

  10. If the system truly worked like it was suppose to then there would never be an innocent person convicted of a crime.

    “Innocent until proven guilty beyond a reasonable doubt.”How does one convince 12 jurors of someone’s guilt when they are in fact innocent??

    Our legal system isn’t about the truth but about who has the best lawyer.

  11. the justice system sucks and i was found guilty and served 6.5 years behind bars for a crime i didnt do the officer lied and had no proof except his years of service , the accussing victim lied and was told what to say and all my times i went to court the transcripts had changed every time what was it i did i asked the court what a joke and my state appointed attorney didnt do his job and when i filed a grievance he said it was the judges at fault so i filed a grievance against the judge and he said it was the laywer at fault and let me be rail roaded nobody wants to take the blame but the innocent had to except the lies that is wrong i think that the police and the justice system is nothing but a power trip and a joke i have nothing good to say about either i would find all not guilty just to make the justice system to bring the truth the police and courts are suppose to be honest and we are all raised to trust a officer but as i see we are all sinners and they lie to

  12. the justice system sucks and i was found guilty and served 6.5 years behind bars for a crime i didnt do the officer lied and had no proof except his years of service , the accussing victim lied and was told what to say and all my times i went to court the transcripts had changed every time what was it i did i asked the court what a joke and my state appointed attorney didnt do his job and when i filed a grievance he said it was the judges at fault so i filed a grievance against the judge and he said it was the laywer at fault and let me be rail roaded nobody wants to take the blame but the innocent had to except the lies that is wrong i think that the police and the justice system is nothing but a power trip and a joke i have nothing good to say about either i would find all not guilty just to make the justice system to bring the truth the police and courts are suppose to be honest and we are all raised to trust a officer but as i see we are all sinners and they lie to

  13. It is good to see that some people are waking up to the fact about our justice system, I worked in law enforcement and knew it was flawed this was around 10 years ago. Things seam even worse today but I would like to say to everyone cops are not your friends, their job is to make arrest and some love it that way. There are no Mayberry’s anymore if there ever was such. I too was charged with a crime I did not commit and at the time I was working with the Fed’s. A local cop of questionable acquaintances did this. I had to get the F.B.I. involved and more to even get the person who really committed a crime against me and almost killed me. Do not kid yourselves “Do not trust the police” and trust me innocent people accept pleas every day, I was forced to after I realized the ineffectiveness of my counsel (No offense intended) and four moths in jail along with the death of my fiancé. Had I not I would have never been able to prove what this cop did and his negligence.

  14. It is good to see that some people are waking up to the fact about our justice system, I worked in law enforcement and knew it was flawed this was around 10 years ago. Things seam even worse today but I would like to say to everyone cops are not your friends, their job is to make arrest and some love it that way. There are no Mayberry’s anymore if there ever was such. I too was charged with a crime I did not commit and at the time I was working with the Fed’s. A local cop of questionable acquaintances did this. I had to get the F.B.I. involved and more to even get the person who really committed a crime against me and almost killed me. Do not kid yourselves “Do not trust the police” and trust me innocent people accept pleas every day, I was forced to after I realized the ineffectiveness of my counsel (No offense intended) and four moths in jail along with the death of my fiancé. Had I not I would have never been able to prove what this cop did and his negligence.

  15. It is good to see that some people are waking up to the fact about our justice system, I worked in law enforcement and knew it was flawed this was around 10 years ago. Things seam even worse today but I would like to say to everyone cops are not your friends, their job is to make arrest and some love it that way. There are no Mayberry’s anymore if there ever was such. I too was charged with a crime I did not commit and at the time I was working with the Fed’s. A local cop of questionable acquaintances did this. I had to get the F.B.I. involved and more to even get the person who really committed a crime against me and almost killed me. Do not kid yourselves “Do not trust the police” and trust me innocent people accept pleas every day, I was forced to after I realized the ineffectiveness of my counsel (No offense intended) and four moths in jail along with the death of my fiancé. Had I not I would have never been able to prove what this cop did and his negligence.

  16. My youngest son has been falsely accused and arrested for 2 crimes that he has not committed. This has been the biggest nightmare my family has ever faced.

    All my life, I firmly believed that one was innocent until proven guilty, that if there was an arrest there must be some evidence to it, that facts and truth mean something in the courtroom and that justice will prevail.

    How very, very wrong I was in those assumptions. I have since learned: Just the mear mention of a criminal act villifies one in the eyes of most everyone in the community; that one is assumed guilty and must vigorously work at proving their innocense; that the police/criminal investigators have way too much latitude in their pursuit of a case; that shoddy, incompetent skills in the police department/criminal investigative units are of no concern to anyone except those being accused; that judges are pro-prosecution; that courtrooms are anti-defendant; that the very system designed to protect and serve The People burdens its own constituents to the point it is virtually hopeless to fight against it.

    While I do still believe that we have the most fair system of justice in the world, I now have to adjust that perspective to say it is BARELY of any higher integrity than the corrupt and baseless criminal justice systems of 3rd world countries.

    God strike down the arrogant, pompous CIDs and individuals who have a personal vendetta to carry out in their accusations and prosecutions and strengthen and vindicate swiftly those who suffer at the hands of these individuals.

  17. My youngest son has been falsely accused and arrested for 2 crimes that he has not committed. This has been the biggest nightmare my family has ever faced.

    All my life, I firmly believed that one was innocent until proven guilty, that if there was an arrest there must be some evidence to it, that facts and truth mean something in the courtroom and that justice will prevail.

    How very, very wrong I was in those assumptions. I have since learned: Just the mear mention of a criminal act villifies one in the eyes of most everyone in the community; that one is assumed guilty and must vigorously work at proving their innocense; that the police/criminal investigators have way too much latitude in their pursuit of a case; that shoddy, incompetent skills in the police department/criminal investigative units are of no concern to anyone except those being accused; that judges are pro-prosecution; that courtrooms are anti-defendant; that the very system designed to protect and serve The People burdens its own constituents to the point it is virtually hopeless to fight against it.

    While I do still believe that we have the most fair system of justice in the world, I now have to adjust that perspective to say it is BARELY of any higher integrity than the corrupt and baseless criminal justice systems of 3rd world countries.

    God strike down the arrogant, pompous CIDs and individuals who have a personal vendetta to carry out in their accusations and prosecutions and strengthen and vindicate swiftly those who suffer at the hands of these individuals.

  18. [Rick’s Note: The person posting this did not provide a name, but used “Me” as the name. To ensure no one was confused by that, I changed “Me” to “Anonymous.” This note provides a good real-life example of what I’ve tried to explain.]

    This really doesn’t make me feel very good either. I was trying to find information about people involved in cases like mine that were not indicted or found innocent. I want to know what it actually TAKES to be indicted.

    It is just scary to me to see this because I do agree that a lot of people convicted are in fact guilty, and even if not for that particular crime than they probably did something before that and somehow got away with it.

    I have been charged with accessory after the fact to murder. I am twenty years old and have no criminal history so this is very scary to me. I know i did not do anything wrong I just went in there and told them what I saw happen between three people that I knew. I drove myself up there to give the police my statement I thought I was helping the situation. And a week and a half later I was charged. I just don’t understand how it happened the news article about me said I had “conflicting statements”. But I did not lie about anything, I did not even omit anything I laid everything I had out on the table. When they took me in to charge me I told them i would take a lie detector test and they laughed at me.(I understand that is not foolproof). And when I asked for a lawyer they told me I was f*cking stupid. And now I am out on bail and waiting for the grand jury to possibly indict me for something I did not do.

    But until then I am walking around not legally guilty but marked guilty none the less. I live in a small town so I was all over the news for at least a week. Before this happened to me I was like the people I am so upset with now. I was raised my whole life to believe the police where on your side and that they were the good guys. And until I Have been on the other side I have never considered the fact that just like there are good and bad people that are charged, there are good and bad police officers. Just because they hold the badge doesn’t mean they made the right decision.

    I can only hope the grand jury will see through the bullshit

  19. [Rick’s Note: The person posting this did not provide a name, but used “Me” as the name. To ensure no one was confused by that, I changed “Me” to “Anonymous.” This note provides a good real-life example of what I’ve tried to explain.]

    This really doesn’t make me feel very good either. I was trying to find information about people involved in cases like mine that were not indicted or found innocent. I want to know what it actually TAKES to be indicted.

    It is just scary to me to see this because I do agree that a lot of people convicted are in fact guilty, and even if not for that particular crime than they probably did something before that and somehow got away with it.

    I have been charged with accessory after the fact to murder. I am twenty years old and have no criminal history so this is very scary to me. I know i did not do anything wrong I just went in there and told them what I saw happen between three people that I knew. I drove myself up there to give the police my statement I thought I was helping the situation. And a week and a half later I was charged. I just don’t understand how it happened the news article about me said I had “conflicting statements”. But I did not lie about anything, I did not even omit anything I laid everything I had out on the table. When they took me in to charge me I told them i would take a lie detector test and they laughed at me.(I understand that is not foolproof). And when I asked for a lawyer they told me I was f*cking stupid. And now I am out on bail and waiting for the grand jury to possibly indict me for something I did not do.

    But until then I am walking around not legally guilty but marked guilty none the less. I live in a small town so I was all over the news for at least a week. Before this happened to me I was like the people I am so upset with now. I was raised my whole life to believe the police where on your side and that they were the good guys. And until I Have been on the other side I have never considered the fact that just like there are good and bad people that are charged, there are good and bad police officers. Just because they hold the badge doesn’t mean they made the right decision.

    I can only hope the grand jury will see through the bullshit

  20. I love these guys who suddenly, after a lifetime of believing in the system completely, get on the wrong side of it and suddenly realize that the best criminal justice system in the world basically sucks.

    Omigod WE should DO something!!!

    Mark Bennetts last blog post..Cop Blogs

  21. I love these guys who suddenly, after a lifetime of believing in the system completely, get on the wrong side of it and suddenly realize that the best criminal justice system in the world basically sucks.

    Omigod WE should DO something!!!

    Mark Bennetts last blog post..Cop Blogs

  22. Reading this is very scary to someone like me. I have recently been arrested by the FED’s for something I did not do. (I was looking for others that have been falsely accused of a crime on the internet when I came across this). The FEDS are completely different from County and State, they can pretty much do whatever they want. I worked as a Sheriff years ago for only one year, always felt our justice system was the best (I believed in it completely). But I have found, they cheat, lie and manipalate all the facts to find you guilty (they don’t care if they find out after you were arrested you are innocent, they just want to “win”). I have also found the “idea” you are “innocent until proven guilty” is a myth. Now a days, you are “guilty until proven innocent”! I hope I will have the strength to fight this to the end and prove my innocence. When I prove my innocence, I want to find a way to help others like myself, so that in fact you are “INNOCENT UNTIL PROVEN GUILTY”! We all need to work together to Some how make a difference for the Innocent-Protect the Innocent and the families!

  23. Reading this is very scary to someone like me. I have recently been arrested by the FED’s for something I did not do. (I was looking for others that have been falsely accused of a crime on the internet when I came across this). The FEDS are completely different from County and State, they can pretty much do whatever they want. I worked as a Sheriff years ago for only one year, always felt our justice system was the best (I believed in it completely). But I have found, they cheat, lie and manipalate all the facts to find you guilty (they don’t care if they find out after you were arrested you are innocent, they just want to “win”). I have also found the “idea” you are “innocent until proven guilty” is a myth. Now a days, you are “guilty until proven innocent”! I hope I will have the strength to fight this to the end and prove my innocence. When I prove my innocence, I want to find a way to help others like myself, so that in fact you are “INNOCENT UNTIL PROVEN GUILTY”! We all need to work together to Some how make a difference for the Innocent-Protect the Innocent and the families!

  24. Reading this is very scary to someone like me. I have recently been arrested by the FED’s for something I did not do. (I was looking for others that have been falsely accused of a crime on the internet when I came across this). The FEDS are completely different from County and State, they can pretty much do whatever they want. I worked as a Sheriff years ago for only one year, always felt our justice system was the best (I believed in it completely). But I have found, they cheat, lie and manipalate all the facts to find you guilty (they don’t care if they find out after you were arrested you are innocent, they just want to “win”). I have also found the “idea” you are “innocent until proven guilty” is a myth. Now a days, you are “guilty until proven innocent”! I hope I will have the strength to fight this to the end and prove my innocence. When I prove my innocence, I want to find a way to help others like myself, so that in fact you are “INNOCENT UNTIL PROVEN GUILTY”! We all need to work together to Some how make a difference for the Innocent-Protect the Innocent and the families!

  25. That’s what makes our job so important (albeit difficult) though, right, Mark?

    It would be nice, though, if more people understood that it’s not a walk in the park to be accused of a crime. And that not everyone accused is actually guilty.

    A lot of times people seem to act as if trials are mere formalities. The accused person is basically guilty, unless he’s able to convince the jury he’s not.

    It’s supposed to be the opposite of that, but how many times has a criminal defense attorney been told during jury voir dire: “Well, the guy is sitting there, so I guess the government is going to have to prove to me that he’s guilty”? Nope. If I had a nickle for every time a juror said, “Well, the guy is sitting there, so he must have done something,” I wouldn’t have to worry about all the pro bono cases I end up with. 😉

    Rick Horowitzs last blog post..If I Only Had A Badge

  26. That’s what makes our job so important (albeit difficult) though, right, Mark?

    It would be nice, though, if more people understood that it’s not a walk in the park to be accused of a crime. And that not everyone accused is actually guilty.

    A lot of times people seem to act as if trials are mere formalities. The accused person is basically guilty, unless he’s able to convince the jury he’s not.

    It’s supposed to be the opposite of that, but how many times has a criminal defense attorney been told during jury voir dire: “Well, the guy is sitting there, so I guess the government is going to have to prove to me that he’s guilty”? Nope. If I had a nickle for every time a juror said, “Well, the guy is sitting there, so he must have done something,” I wouldn’t have to worry about all the pro bono cases I end up with. 😉

    Rick Horowitzs last blog post..If I Only Had A Badge

  27. That’s what makes our job so important (albeit difficult) though, right, Mark?

    It would be nice, though, if more people understood that it’s not a walk in the park to be accused of a crime. And that not everyone accused is actually guilty.

    A lot of times people seem to act as if trials are mere formalities. The accused person is basically guilty, unless he’s able to convince the jury he’s not.

    It’s supposed to be the opposite of that, but how many times has a criminal defense attorney been told during jury voir dire: “Well, the guy is sitting there, so I guess the government is going to have to prove to me that he’s guilty”? Nope. If I had a nickle for every time a juror said, “Well, the guy is sitting there, so he must have done something,” I wouldn’t have to worry about all the pro bono cases I end up with. 😉

    Rick Horowitzs last blog post..If I Only Had A Badge

  28. Hmmm…it appears you have a point there. But you win that point by doing the very thing you wanted to warn me against! 🙂

  29. Hmmm…it appears you have a point there. But you win that point by doing the very thing you wanted to warn me against! 🙂

  30. Ah, but many people are arrested after being convicted – for example, when they fail to turn themselves in to serve a sentence, or when they are accused of violating their probations. At that point – the point of the arrest – those people, at least, are legally guilty.

  31. Ah, but many people are arrested after being convicted – for example, when they fail to turn themselves in to serve a sentence, or when they are accused of violating their probations. At that point – the point of the arrest – those people, at least, are legally guilty.

  32. Ah, but many people are arrested after being convicted – for example, when they fail to turn themselves in to serve a sentence, or when they are accused of violating their probations. At that point – the point of the arrest – those people, at least, are legally guilty.

  33. Good point. I, of course, meant exactly what you said because legally everyone accused of a crime is innocent until proven guilty. And as you noted, at the point of their arrest they have not been proven guilty.

    In a very real sense, my point was the same as yours when I said, “It does not follow from this that everyone charged with a crime is guilty of having committed the crime — or even that most are” and “that’s why we have trials.”

    So, in fact, I can go farther than you did. You said, “Many people arrested by the police are factually guilty; almost none of them are (at that point) legally guilty.” In fact, at that point — the point of arrest — none of them are legally guilty.

  34. Good point. I, of course, meant exactly what you said because legally everyone accused of a crime is innocent until proven guilty. And as you noted, at the point of their arrest they have not been proven guilty.

    In a very real sense, my point was the same as yours when I said, “It does not follow from this that everyone charged with a crime is guilty of having committed the crime — or even that most are” and “that’s why we have trials.”

    So, in fact, I can go farther than you did. You said, “Many people arrested by the police are factually guilty; almost none of them are (at that point) legally guilty.” In fact, at that point — the point of arrest — none of them are legally guilty.

  35. “Guilty” in the criminal courts has a very different meaning than “guilty” in the real word. Many people arrested by the police are factually guilty; almost none of them are (at that point) legally guilty. We do our clients and society a disservice when we conflate legal guilt and factual guilt.

    Mark Bennetts last blog post..The Adventures of SuperCop (Edit 12/2015: Link broken.)

  36. “Guilty” in the criminal courts has a very different meaning than “guilty” in the real word. Many people arrested by the police are factually guilty; almost none of them are (at that point) legally guilty. We do our clients and society a disservice when we conflate legal guilt and factual guilt.

    Mark Bennetts last blog post..The Adventures of SuperCop (Edit 12/2015: Link broken.)

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