Bruce D. Spencer has completed a study for the National Center for State Courts to determine the accuracy of jury verdicts.  This study estimates that there is a 25% chance that a factually innocent person will be convicted.  That’s a rather breathtaking number.  One in four innocent defendants will be convicted after trial.

A thorough, and frankly quite balanced, discussion of this study can be found at Mark Bennett’s Defending People, See Also Anne Reed’s Deliberations on the”juries get it wrong” story.  One of the most interesting aspects of this study was the judge-jury agreement rate, which found that the judge was far more likely to wrongfully convict an innocent person than the jury, and that the jury was more likely to acquit an innocent person when the judge was also inclined toward acquittal.

While there’s no point in my rehashing what Mark has already written, I note that the impact of a judge on the likelihood of a jury erroneously convicting a defendant cannot be overlooked.  Obviously, the judge has a huge impact on both the evidence to come before the jury by dint of his rulings, but also the jury’s appreciation of that evidence because of the judge’s tone, commentary, facial expressions and non-verbal cues.

In other words, a hanging judge (or even just a good ol’ judge who thinks the defendant guilty) is going to impart that message to a jury, and by doing so will dramatically increase the likelihood of a wrongful conviction of an innocent defendant.  The judge sets the tone, and that tone is a huge factor in how the jury will receive your evidence and argument.

Another factor that was not, and probably could not, be taken into account in the study was the skill level of the advocates.  As ineffective assistance is such a low, useless standard, it does little to provide a measure for counsel’s role in the conviction of the innocent.  Non-lawyers like to pretend that it’s the facts, not the lawyer, that makes or breaks the case.  They need to believe this, since the alternative turns trials into a lottery where the party with the best lawyer wins.

Lawyers, on the other hand, know that it is but one of the factors that make up the result, and it is the interplay of these factors that produces the outcome.  Even the best lawyers cannot overcome the worst facts, unless the prosecution screws up so badly that the facts no longer count (it can happen).  But a truly skilled lawyer can take a losing case and turn it around, whereas a mediocre lawyer can do nothing to stop the train from running over his client. 

Given that there are so many factors involved in the successful outcome of a trial, I can’t imagine that any study can account for all of them and thus provide us with a definitive answer as to how innocent people end up wrongfully convicted.  But they do.  They do a lot.  And that’s an important starting point.