The Wrongful Conviction Of The Not That Innocent

I’d known my client since he was a little kid, when his father was my client. His father was what cops call a “skell,” running low-rent smarmy scams without any shame, being a small cog in a bigger crime whenever he could make a buck out of it. On a personal level, he was one of those guys who pretended to be your best friend, waiting for the opportunity to shove a knife in your back.

But his son wasn’t a bad kid. He just never had a chance given the way he was raised. So when he got busted for drugs, he was one of the rare clients who just told me what happened without the usual story, the string of obvious lies that would make me the stupidest guy in the room. Instead, he gave me the information that I needed to defend him, so I knew what they knew, less whatever they wrongly thought they knew and what they made up. Not everybody lies, but most people do, at least to some extent.

We should have won the suppression hearing. We had the goods. The hearing went exactly as planned. The agent who testified admitted under cross that he lied in his report. Why?

Well, if I told the truth, the judge wouldn’t like it.

He said it right there on the stand, under oath, before the judge. And yet, the judge denied suppression. That’s how the law works much of the time. That’s why we can’t give guarantees.

After the hearing, we sat down, face to face, to talk about what to do next. His eyes started to tear up, which is always a bit shocking as he was a tough kid, full of machismo otherwise, whose sudden crack in his bravado reminded me that nobody is all that tough when they see their life about to end. The government offered him a deal, provided he was willing to snitch on his source. He didn’t want to snitch as a general proposition, and he wasn’t going to snitch on his father. This is more unusual than you would expect, as filial devotion isn’t always as strong as one might think. I respected his decision.

Then he stared at me and emphatically stated without any hint of irony, “I’m innocent. There has to be a way out. You have to do something.”

Of course, he wasn’t. I knew it. He knew it. He was guilty, as he told me and as I knew, even if he hadn’t. But he had. I told him again what our options were, what the consequences could be and what the odds looked like. And then I gave him the serious stare and reminded him, “You’re not innocent. It’s your call as to what you want to do, but do not try to scam me.”

This was usually the point in the discussion where my client would break into a wry smile, knowing that the lie didn’t work. But this guy? He looked at me and said, “no, I didn’t do it.” He believed his lie. Or as they say these days, his life became his truth. It just wasn’t “the truth,” and his belief wasn’t going to make the evidence go away.

Maybe it began with Making of a Murderer, when the public first learned of some of the ugly that goes on within the legal system. An eyewitness recants after he has a chat with a friend of the defendant, maybe a few dollars in a bag cross the table. A snitch fingers whomever he’s told to finger, or his enemy, or the guy who won’t have his throat cut inside, because he was tough enough before sentence but realized he was alone and forgotten in his cell a few years later, after the agents told lies to fill the gaps in the case. The agents were sure he was a bad dude and felt no remorse about it. It’s just business as usual, what they need to do to make the case and take another criminal off the street.

Dana Mulhauser was an AUSA for eight years before taking charge of the conviction and incident review unit at the St. Louis County Prosecuting Attorney’s Office. She writes that the feds need to get on board with the trend of reviewing bad convictions, as many local prosecutors are doing.

The truth is, getting unjust convictions overturned is monumentally difficult work. Courts are deluged with petitions from prisoners pleading their innocence, some legitimate, some attempts to gain release from prison by any means they can find. Those petitions typically go to courthouses in the understaffed rural counties where the prisoners are incarcerated.

How is a court supposed to separate the wheat from the chaff when there is no one to research the claims? Often, the petitions are stamped “denied” within days of receipt.

Unlike the hucksters playing their useful idiots, where every defendant is sad and innocent by leaving out the unpleasant details most of us call facts, she brings a dose of reality to the cause. Some claims are legit. Some are lies. There’s no downside to saying whatever it takes to try to get out since you’re already in prison for life plus cancer.

But there are innocent people in prison as well, the ones whom agents lied about, who snitches ratted out for their own sake, who just didn’t do it even if someone fingered them and the agents and AUSAs were certain they had the bad dude. And there is no conviction integrity unit at the Department of Justice.

Now, is it possible that federal prosecutors are simply more careful, and don’t need a conviction integrity unit because they never wrongfully convict anyone? As a former federal prosecutor, I would love to believe in my own infallibility. (Many of us already do, as the joke goes.)

But many or most wrongful convictions are not a result of deliberate misconduct or lack of care or judgment. They are the result of witnesses who lie or who are never found, of defendants who plead guilty out of fear of a long prison sentences, or of missed or misunderstood evidence that only now has come to light because of new technology.

Everybody is the hero of their own story. That goes for AUSAs and federal agents, as well as defendants and defense lawyers. Most federal cases don’t involve discrete crimes, like a murder, and aren’t susceptible to a single failed fact revealing a wrongful conviction, such as the Innocence Project’s DNA wins. But the sincere claims of innocence may be true or may be false, or may be delusion or may be scams, and they all look pretty much the same from the outside.

Just because you’ve looked into their eyes and believe you can tell they’re innocent doesn’t make you any different than the agent who looked into their eyes and could tell they were guilty. They may very well believe it themselves. And in their own way, they may very well be wrongfully convicted.

9 thoughts on “The Wrongful Conviction Of The Not That Innocent

  1. Skink

    What is it with you and Saturdays? Another bunch of put-together words that should make any lawyer pause and ponder.

    Thanks for the reminder, brother.

    1. SHG Post author

      Saturday readers tend to be more lawyers, less the day trippers. Seems like a good to get a little more down and dirty. We can talk about the inside baseball stuff when the yahoos are busy with their weekly bathing ritual.

      1. L. Phillips

        Easy there big guy. Some of us yahoos help pay the rent.

        Now where is that wash tub and hog bristle brush?

  2. Andrew

    If an agent lies under oath and admits to perjury, wouldn’t a denial by the judge be overturned on appeal for a motion to suppress?

  3. zoe

    “…Not everybody lies, but most people do, at least to some extent…”

    But when the Prosecution’s side does it, there are no remedies. No accountability. No penalty or loss of liberty for the liar (e.g. “Well, if I told the truth, the judge wouldn’t like it.”). It seems that if Dana Mulhauser was leading an enlightened change in revisiting alleged wrongful convictions, and there was a growing movement among prosecutors, there would be a serious re-examination of Imbler v. Pachtman. If Prosecutors “…believe in my [their] own infallibility. (Many of us already do, as the joke goes)…” then this arguably questionable concept of Absolute Immunity should be undone. If Prosecutors are infallible (thus would have no reason to lie), they wouldn’t need to hide behind immunity, right?

    You can call your client a liar, and he might be. But he’s lying because the other side is lying. The Agent lied. The judge knew of the lie, yet (presumably) did nothing. And you just told your client that it’s ok for the other side to lie because you (presumably) can’t do anything about it.

  4. Jac

    “…On a personal level, he was one of those guys who pretended to be your best friend, waiting for the opportunity to shove a knife in your back…”

    That’s a curious turn of a phrase for a Defense Attorney who just described doing that exact same thing to his client.

    As we’ve learned around these parts, a Defense Attorney’s job is to vigorously defend their clients — be they liar, truth-teller, guilty, not guilty, monster, or not. “Imagine what would happen if we were to steer defense attorneys to share their assessments of their clients’ guilt with the prosecutor, or for defense attorneys to intentionally provide lower-quality representation to clients believed to be guilty.” – SHG Feb 28, 2019.

    You did just that by stating to your client, “And then I gave him the serious stare and reminded him, “You’re not innocent…”.
    And you punctuated it by responding to commenter (11:47am) Andrew’s question about the Fed Agent’s perjury and false report with a snarky “You’re not from around here.” Or maybe it wasn’t snarky.

    Your interview from “Should Lawyers be ‘Held to Account’ for Defending the Wrong Sort of Defendants?” is commendable, but this post certainly shows your cracks.

    Quarantine has not been kind to you, my friend.

    1. SHG Post author

      The conversation with the client has nothing to do with zealously representing him, you moron. It has to do with his making decisions based on reality rather than insanity. Your failure to gasp that is just mindnumbingly fucking stupid. Off to reddit with you.

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