Let's Look at the Data

Maybe 10 years ago I was looking over some Ohio statistical reports and learned that when criminal cases were tried in common pleas court in Lucas County (that's felony court in Toledo, for you folks from out of the area), something like 67% ended with a guilty verdict.  The numbers statewide were a bit higher, somewhere around 73%. (I don't have access to those reports right now, or to newer ones, so I'm working from memory, but those numbers are about right, and more than close enough for my purposes here.)

The Lucas County numbers struck me, intuitively, as too low.  Prosecutors simply shouldn't, I thought, be completely losing such a high percentage of cases.  (The statewide numbers seemed about the minimum I'd expect from competent prosecutors.)  There were, it seemed to me then and seems to me now, three plausible explanations.

1. They were indicting cases they shouldn't have brought.
2. They weren't offering deals they should have or otherwise disposing of cases that maybe should have been brought but shouldn't have been tried.
3. They were losing cases they should have won.

All three are probably right.

The first two indicate something about the judgment of the people responsible for making decisions in the office.  Whether to bring charges and what charges to bring and how to pursue them are left, wisely because there's really no good alternative (we can talk about bad alternatives another time), to the discretion of the prosecutor.  If the prosecutor is charging too many people with crimes that can't be proved, or is pursing too many of them too avidly, the prosecutor's discretion sucks.

The third is different.  It suggests that prosecutors are outclassed by defense counsel.  Maybe they don't prepare properly.  Maybe they just aren't as good.  Oh, juries and judges will get it wrong occasionally no matter what, but if it happens a lot, the problem isn't with the juries, it's with the people who put the cases before them.

What got me thinking about this was a post by Scott Henson who'd been poring through the summary to this year's  Annual Report for the Texas Judiciary and discovered this frankly astounding nugget.

Overall, 97.8% of convictions resulted from a guilty or nolo contendre plea, and less than 2% of criminal cases go to trial. That said, of the 4,060 cases taken all the way through trial to a verdict in 2010 (whether before a judge or a jury), 51.7% resulted in acquittals (see the chart, p. 45). According to the same report (pdf, p. 41) from last year, just 27.9% of tried cases resulted in acquittals in FY 2009.

Think about that for a minute.  In 2010, if you'd been charged with a crime in Texas, couldn't get the charges dismissed before trial, and either weren't offered a deal or refused what you were offered, you'd mostly get to go home a free man after trial.

Since 2010 was a dramatic change from 2009, you have to wonder about which is the outlier.  (You also have to wonder whether we all ought to be moving to Texas, but that's a different question.)  And you damn well want to keep an eye on the numbers for 2011.

Anyway, we have Toledo near the turn of the century and Texas this year, which got me to wondering just how the feds do.  You know, the typical thought is that the feds never lose, at least, not completely.

Yeah, I know.  Our local sheriff, James A. Telb, Ph.D. as he likes to refer to himself and three of his deputies just beat most of the charges after trial in federal court in Toledo.  Telb and one of the deputies were fully acquitted; the other two deputies were found not guilty on some of the charges.  But that seems an aberration.

Anyhow, thanks to the datamongers at the Bureau of Justice Statistics, I looked at the numbers. The latest seem to be for the period from October 1, 2007 to September 30, 2008.  During that year, the feds charged 91,728 people and businesses with crimes.  90.3% were convicted.  Odds at trial?  81.47% were convicted. Of something.  That's a lot.  But it means that the feds do lose.  Federal trials are not guaranteed.  1 in 5 walk.

Still, there's more in the numbers.  Because when there's a bench trial the acquittal rate is 61.53%.  Not Texas in 2010, but not bad odds.

Sure, there are all sorts of ways of parsing all these numbers.  There are questions about who goes to trial and when, there are likely regional variations.  Bench trials are chosen for a reason (though unlike Ohio courts, in the federal system the defendant can't waive a jury without the consent of the prosecutor and the approval of the judge).

Still it behooves us to know.

Anyhow, from conviction and acquittal rates, it's but a short step to talking about innocence.  (No, I'm not heading back to Sheriff Telb and the deputies.)  

I've said before that innocence (like guilt) is kind of messy to talk about.  I mean, you really have to define your terms.  I wrote this about 16 months ago.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.

We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law. 

All those not guilty verdicts I've been talking about are instances of what I called "legal innocence" in that post.  And legal innocence is what Emily Hughes, professor at Washington University School of Law, is concerned about in "Innocence Unmodified," a paper in the Legal Studies Research Paper Series.  This is the abstract.

The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence. In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.” Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary—prioritizing “actual” innocence over fundamental constitutional
protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all—innocent or guilty alike.

That's a mouthful, so let me try to abstract the abstract.

The focus on factual innocence by activists leads the courts and society to ignore all other sorts of misconduct that leads to criminal convictions.  Not stopping government misconduct weakens constitutional protections across the board, and that's bad for everyone.

She's right, of course, when she claims that allowing all sorts of government misconduct is bad for everyone.  And it's probably true that too many activists have put their eggs in the picnic basket of innocence.  (Sorry for the horrible metaphor.)  But there's the reality that faced with a choice between arguing that a conviction should be overturned because the defendant didn't do the crime and arguing that it should be overturned because the police exceeded the scope of their search warrant, my argument will largely be a function of my audience.  

In the court of judges, I'll make the factual argument to be sure the court knows the importance of letting me win on the legal basis.  In the court of public opinion, I'll push the factual innocence argument. I know something about what resonates.

So sure, legal innocence matters.  And all wrongful convictions really matter regardless of why this or that one is wrongful.  But if I want to make points with the public, give me the factually innocent guy every time.

And yet, and yet, and returning briefly to verdicts, there's this from Grits.

This year, "Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas' revised death penalty statute in 1976. These new sentences occurred in six counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis." In FY 2010, according to the Office of Court Administration, just 3% of capital juries gave defendants a death sentence, down from 24% just a few years ago. 

I've been saying for a while now that no matter what Gallup and the other pollsters find, the polls in the jury room reveal a growing discomfort with the death penalty.  Innocent of death.  That's a kind of factual/legal innocence.  

And it's a bit of data that doesn't show up in the numbers of how often judges or juries say "guilty" or "not."

h/t Doug Berman for the link to "Innocence Unmodified."