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Rare Success

Posted by Rick · August 11th, 2005 · No Comments

Anyone who works in criminal defense knows that “success” is a rare thing. For one thing — contrary to what most citizens seem to believe — the decks are stacked against the defendant.

A recent article — I apologize that right now I cannot remember exactly where I read it — in one of the many law periodicals I look at said that 40% of all jurors believe the fact that someone has been arrested counts as proof of guilt. (It doesn’t. Jurors are even instructed by the court that it doesn’t. It is not at all uncommon for the wrong person to be arrested. And that’s why we’re supposed to have impartial jurors.)

If the people in the case have any connection whatsoever to gangs, the prosecution these days — at least in Fresno County — will charge what is called a “gang enhancement.” This will allow them to put on “expert witnesses” — who are really just police officers who happen to think non-white people and motorcyclists are criminals — who will then explain to the jury how it is that when Gonzales or Phounphontoua stepped out of the shower, kicked their dog and cussed at the kids, it was a gang-related crime (because it caused people to fear them, which benefits the gang). Don’t misunderstand me: People who do these things are not good people. But once you say the word “gang” in front of a jury, the case is over. I don’t care if the guy was standing next to someone who was littering and the cops nabbed the wrong guy.

And gang “enhancements” can radically transform sentences. In one case I worked, the client was convicted for assault. The enhancements added approximately eighteen years to his sentence. Now you might think he got what he deserved, but unless every crime deserves a life sentence, you’re wrong. People charged with assault — especially first-time offenders — are sometimes eligible for probation. The client in the case I described would have been such a person. Instead, he went to prison with a 25-year sentence. For a fist-fight.

Add to that the fact that nearly all judges are former prosecutors. Sure, many of them try to be impartial; most judges (like most cops and most prosecutors) are, deep down, good people. But their world-view is at least slightly skewed against defendants. After all, before becoming judges, they spent many, many years fighting to get defendants locked up. And they always — even when they’re wrong — think the defendants are guilty. It’s not because they’re bad people; it’s because that’s their job.

Another reason defendants often lose is, frankly, there are too doggone many of them. When you’re arresting 11-year-old girls and charging them with felonies, you can pretty much guess that you’re slinging criminal charges around like candy. Like free candy. And that means that any given criminal defense attorney is going to be trying to defend too many people. I’ve heard of attorneys handling 20 cases a week. Can you imagine? That’s four per day. Just how much investigation and research do you think goes into the average case? And again contrary to the public’s view, most criminal defense attorneys don’t know the law any better than their clients.

So, as I said, working in criminal defense, there’s just not much “winning.”

And that’s why I was quite pleased today to receive the following email:

Date: Thu, 11 Aug 2005 08:41:04 -0400
From: “XXXXX, Carrie (LNG-DAY)”
Subject: LexisNexis Shepards – Long v Brewer

Dear Mr. Horowitz:

I wanted to follow up with you about your concern with Re Winship [sic], 397 U.S. 358, 90 S. Ct. 1068, 25 L. [sic] The editors at Shepard’s have removed the “questioned by” from Long v Brewer citing reference. We appreciate you bring [sic] this to our attention.



[Editor’s note: Some information deleted to protect the email-writer’s privacy.]

Lest someone think this is merely bragging on my part, Shepard’s is a critical research tool for attorneys. And, often, when a case is found that is “questioned,” attorneys will shy away from using it in their arguments. But In re Winship, 397 U.S. 358 (1970) is a critical case that discusses the nearly-forgotten concept of “reasonable doubt.” It’s an important tool, especially in appeals, because these days so many trials result in convictions that seem to be based on “yeah, I think it’s possible he did it.”

The sad thing is, that’s just one of about five errors I’ve found in Shepard’s over the last year.

And so we slog on.

And we nurture our minor victories.

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