The Innocent Citizen’s Justice System Survival Guide

“Ours is a world in which justice is accidental, and innocence no protection.”     Euripedes, 400 B.C.

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I come from a legal family, so even though I did not go into law, I’ve had a closeup view of the justice system my entire life, which is, I think, one of the reasons I decided to devote my post-corporate life to innocence work. I saw too many things happening that were not congruent with my view of what a fair and just system should, and must, be. For the past seven years, I’ve been deeply involved in innocence work, and have become knowledgeable about the details of many, many cases (100’s) of wrongful conviction and wrongful imprisonment. Consequently, I’ve seen many ways in which actually innocent people become tragic victims of what we call “justice.” There are just so many ways the justice system can get it wrong. This has caused me to think about what it is that an innocent person can (and should) do when accusatorially confronted by this thing we call the justice system. [You might want to also read my previous post Why I Think the US Justice System is Broken, and Why It’s Not Getting Fixed.]

If you think being wrongfully charged, indicted, convicted, and imprisoned can’t happen to you, think again. It can happen to anybody. Just ask Debra Milke. The ways this can happen are countless, and despite the system’s best efforts, there are just too many ways the system can possibly get it wrong. I could give you lots of examples, but we won’t try to detail them here – just take a look at the National Registry of Exonerations, and keep in mind these are only the ones that have been so far successfully overturned within the system – there are magnitudes more. This article will try to give you some “suggestions” for what you might do if you find you’re being wrongfully suspected or charged with a crime. For those of you who have had no close interaction with the justice system, you might well think that I’m being radical and that I must come from somewhere in outer space … and you can think that right up until you get scooped into the meat grinder. Let me me just say, “Forewarned is forearmed.”

This article will be in six sections:

I.  Have a Lawyer You Can Call

II. Don’t Talk to the Police

III. The Plea Bargain

IV. Be Ready for Trial

V. Shaken Baby/Child Abuse (Abusive Head Trauma)  [This requires special attention and treatment.]

VI. If You Are Wrongfully Convicted

DISCLAIMER: I am not an attorney, and so cannot give you legal advice. These suggestions are only my personal opinion, and are solely the result of my exposure to the justice system and wrongful convictions over a period of years. They come with no guarantee. Every situation is unique, and you must always exercise your own judgment given the circumstances. They are just intended to get you thinking about how you would handle the situation of being wrongfully accused, and to give you some information about how the system works. I am certain that they cannot cover every possible situation, but hopefully, they will provide an overall, general guide for how you might deal with this. 

I.  Have a Lawyer You Can Call

I’m not talking about spending any money at this point. You just want to find an attorney you have some confidence in that you can call if the need arises. Do some research. Check out criminal defense attorneys in your area. Personally, I’m skeptical of the ones that advertise. Ask around. Word-of-mouth recommendations are a good indicator. When you find one you think is good, make an appointment to just “chat” for a few minutes. Tell him/her that you’re just putting things in place in case you should ever need a defense attorney. Ask him/her how to make contact if you’re being held by the police during non-office hours. This attorney will be your “first line of defense.” If it becomes necessary later on, you can always change attorneys or bring additional attorneys onto the case. Understand, of course, there will be money issues involved; but only you can make those decisions.

There’s an old saying in the criminal defense legal profession, “How much justice can you afford?” It’s absolutely no secret that the quality and effectiveness of your defense correlates very highly with how much you can pay for it. This is one principle reason why wrongful convictions are disproportionately visited upon the lower socio-economic strata. In my experience, bad defense lawyers (inexperienced, less than competent, lazy, uninterested, drunk, greedy, uninformed) are responsible for as many wrongful convictions as any other reason. Their easiest, quickest path to a paycheck is to convince you to accept a plea bargain (see below). They make a quick buck with no effort, but you wind up a convicted felon. But beware. It’s entirely possible to pay a huge amount of money to an ineffective or incompetent lawyer who will take your money and screw up the case. It happens. I’ve seen it happen. In all fairness, I have to also interject; I know many excellent, even superb, attorneys who are public defenders or who work with innocence projects providing pro bono legal representation, but their case loads are so heavy they can’t possibly give any one case the attention it deserves, unless you’re willing to let the case stretch out over the span of several, possibly many, years.

 II.  Don’t Talk to the Police

Everyone knows what the “Miranda Rights” are. Every jurisdiction may have a slightly different version, but the basics are:

You have the right to remain silent when questioned. Anything you say or do can, and will, be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish. If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

You’ve got nothing to gain, and everything to lose by talking to the police. If you are arrested, or are asked to come down to the station to “answer a few questions,” don’t talk to the police. Everybody’s first instinct is to want to appear helpful and cooperative. There is also the belief that if you don’t talk to the police, you will cast suspicion on yourself. Don’t worry about that. If you’ve been brought in for an interview, you’re already under suspicion. Police interrogators are universally trained in a method called the Reid Technique, which is psychologically designed to produce a confession. In addition, police are highly susceptible to “tunnel vision.” If they think you’re guilty, for whatever reason, their mission will become to confirm their belief, while ignoring exculpatory facts and evidence. You also need to know that it’s perfectly OK for the police to lie to you, and this loathsome practice has actually been upheld by the US Supreme Court. I am not an attorney, and I cannot give you legal advice, but my recommendation is that when in a police interview situation, no matter how obviously innocent you think you are, there are only three things you should say:

“Is this being recorded?” (You want it to be recorded.)

“I have nothing to say, and I invoke my Miranda rights.”

“I want an attorney.”

Now . . . . when you do this, here’s what will happen.  First, the police will ignore your statements. They will proceed with questioning as if you’d never said anything. They will badger you, and get in your face. They will tell you if you talk to them they’ll let you go home, but if you don’t, they’ll lock you up. They will threaten you. “We’re gonna put you away for a very long time.” “We’re going to hang you from the highest tree.” “This is not going to go well for you.” Your sole mission needs to be contacting your lawyer, which might take some time, so it could happen that you wind up spending a night – or two – in jail. So be it. Do not talk to the police without counsel present.

 III.  The Plea Bargain

If you’ve been charged, possibly even before an indictment, the prosecutor will approach you (and your attorney) with a plea deal; and indictment or not, you will be faced with making a decision about this. This has become absolutely standard practice, because the prosecutor is looking for a quick, no-effort conviction. Please see our previous post about plea bargains here, which includes an excellent and definitive treatise on pleas agreements (paper temporarily taken down for update by author) by Amelia Whaley, a JD candidate at the Duke University School of Law.

Here’s what the prosecutor is going to do. He/she is going to go through their unending list of possible charges that could be brought against you for the crime(s) with which you’ve been initially charged, and present (threaten) you with a list of charges that will equate to a very, very long prison sentence if convicted. Then he/she is going to offer you a reduced charge, if you’re willing to plead guilty. Sometimes, this is a substantially reduced charge. The deal he/she offers will depend largely upon how strong they think their case will be in court – the weaker the case, the better the deal offered. Many an innocent person has been intimidated into pleading guilty to a crime they did not commit so as not to expose themselves to the possibility of years and years in prison if convicted, even though wrongfully. This is what has become known as “the trial penalty.”

The Trial Penalty. For several decades, US sentencing laws have been approaching, and have reached, the level of insanity.  It has been a consequence of legislators falling all over themselves to be seen as being “tough on crime” in their scramble to get (re)elected.

This creates an absolute “set up” for the prosecutors.  All they have to do is threaten the defendant with a scary, mind-bending mandatory sentence, but offer a “deal” for which they get to set all the terms.  The current sentencing arena lets them plea bargain everything.

Plea bargaining  also gives incompetent defense lawyers a false sense of accomplishment just because they were an irrelevant part of the negotiating process – “You were facing 25 years, but I got you off with 11.”

The combination of excessive sentencing laws and plea bargaining has led us to a situation in which the prosecutors – not the law, not the court – are determining the sentence.  THIS IS NOT THE WAY IT’S SUPPOSED TO WORK.  You’re supposed to be able to have a trial, get the facts out, and let the jury and the court decide guilt or innocence and what the sentence might be if you’re found guilty.

When faced with an offer of a plea agreement, you, and your lawyer, must consider this very, very carefully. Just remember, if you accept a plea bargain and plead guilty, you are giving up your one best chance to establish your innocence, and you will automatically become a convicted felon – with all that entails – and for sex offenses, this could include a lifetime on the sex offender registry. And by pleading guilty, your chances of any possible post-conviction relief are substantially diminished. Keep in mind also that this is a “bargaining” process in name only. You have no negotiating position other than forcing the prosecutor to take the case to trial.

 IV.  Be Ready for Trial

If you’ve been charged and indicted, and did not accept a plea deal from the prosecutor, a very critical decision you’ll have to make is whether to opt for a bench trial or a jury trial. You have a constitutional right to a jury trial, but don’t just assume this is your best option. A “bench trial” is conducted without a jury, and the judge hears all the evidence and testimony, and makes the decision regarding guilt or innocence, and it can have some advantages.

I don’t know about you, but juries scare me to death.  There is a sarcastic joke that says “the definition of a jury is 12 people who aren’t smart enough to get out of jury duty.”  This is clearly said in jest, but it makes one stop and think.  You just never know what kind of squirrelly thoughts, ideas, and beliefs reside in a person’s brain.  The very fact that an occupation called “jury selection consultant” exists has to tell you something.

In jury trials, the prosecution will brazenly play to the emotions of the jury. Unfortunately, this turns the courtroom from a place of facts, logic and reason into “theater.”  The prosecutor is playing to a human audience, and they do whatever they can to engender strong feelings on the part of the jury – hate, disgust, bias, support, or sympathy.  The trial becomes not about facts and logic, but about emotion and feelings.

The jury-trial/bench-trial decision can only be made by you and your attorney, depending on the specifics of the case, but you need to be aware that the bench trial option exists.

Regardless of whether you opt for a jury trial or a bench trial, you will need to have a logically compelling set of documented FACTS to establish your innocence. It should be your attorney’s job to pull this together, and in my experience, this is the major place where bad defense attorneys fail – preparing the case for court. A rock solid alibi is always good, but … if the prosecution has an eyewitness willing to testify that you’re the guilty party, you’re in big trouble. Eye witness testimony – even though false or wrong – will trump a rock solid alibi in court. And be aware, also, that having family members testify for you doesn’t work, as their testimony is always discounted as non-objective.

 V.  Shaken Baby/Child Abuse (Abusive Head Trauma)

SBS/AHT – this is a whole special category of its own. This could be an entire book by itself. The situation today with the traditional pediatric medical establishment’s unwavering positions on SBS is downright scary. If you’re not aware, the contrary beliefs and opinions about SBS have devolved into a mudslinging, name calling, cat fight between the SBS/Triad protagonists and the SBS/Triad doubters and questioners. But make no mistake, the establishment holds the upper hand. That being said, my recommendations will assume that in the event you are faced with even a potential SBS situation, the “officials” you will be dealing with are SBS/Triad believers.

If you are anyone who has even occasional contact with an infant or small child – parents, grandparents, aunts, uncles, cousins, sisters, brothers, friends, caretakers, babysitters – you should be aware of what is lurking if the child has a medical event while in your care.

If your child has been rushed to the emergency room in distress or non-responsive, the last thing in the world you have on your mind is collecting documentation; however, as soon as you can bring yourself to it, you should start assembling all the information you can. Write down as detailed a timeline of events as you and others can remember leading up to the crisis.  This timeline may need to go back several days prior. Heather Kirkwood is a Seattle defense attorney who has concentrated on SBS defense. She has put together a recommended list of documentation you should have if faced with an SBS situation, which she calls the Kirkwood Drill. Here it is:

Living babies:

Complete medical records

Family medical history

Prenatal history

Birth experience (mother and child)

Pediatric records

Hospital records and follow up

All radiology on discs

Deceased babies:          (In addition to the above information)

Autopsy reports, autopsy photographs, all tissue blocks, slides, and sections of body organs accessible for review by an independent pathologist

All autopsy tissue blocks, slides, and sections of brain spinal cord and dura accessible for review by an independent neuro-pathologist

PLUS – since the child abuse doctors don’t take a proper history, this must be your attorney’s job – three rules, INTERVIEW, INTERVIEW, INTERVIEW. It is usually the caretakers & others who know the baby who can provide critical information.   Correct diagnosis rests on history & objective medical evidence (mostly radiology and pathology, including labs).

You also need to know about “child abuse pediatricians” (CAP’s). Child abuse pediatrics is actually an official “sub-specialty” endorsed by the American Academy of Pediatrics. The sole job of the CAP is to diagnose child abuse so the perpetrator of that abuse can be dealt with by the justice system, and the CAP’s are the doctors, among others, who would testify against you in court. They are not treating physicians. Please see our previous post about CAP’s here. You need and want to be as helpful to the doctors as you can be in an emergency situation for the sake of your baby. But, if you find yourself talking with a child abuse pediatrician (and they probably won’t tell you they are one), consider that you are under suspicion, and you are talking to the police.  How you choose to deal with that I must leave to you.

If you are charged, you need to understand that SBS/AHT is the only crime that requires only medical expert testimony for conviction. A charge of SBS turns the justice system upside down – with a medical diagnosis of SBS, you are presumed guilty. You will  have to PROVE your innocence, as opposed to the prosecution having to prove you’re guilty. If you have to defend yourself from such a charge in court, you will require a credible medical expert to testify as to why you are not guilty, and in fact, the more experts you have, the better. You can expect the prosecution to present multiple experts. You will need to present what’s called a “differential diagnosis” – that is, if the child did not die from abuse, then what did cause the death. And a final comment about an SBS charge: in such a case, your choice of defense attorney is absolutely critical. You have to have someone who is knowledgeable and experienced in SBS defense, or they’re just going to get steamrollered by the prosecution’s experts.

VI.  If You Are Wrongfully Convicted

To achieve any kind of post-conviction relief in a case of wrongful conviction, you will require an attorney. When people try to do it themselves, they invariably mess it up, and may destroy any chance for post conviction relief that may have existed. Don’t engage “just any” attorney. Make sure it’s one that has experience in achieving post-conviction relief, and is familiar with the ‘time’ and ‘procedural’ bars built into the law. If you have been wrongfully convicted of SBS, you will absolutely require an attorney experienced and knowledgeable in SBS cases. In my experience, as stated above, bad defense lawyers (incompetent, inexperienced, uninformed, etc.) are responsible for as many wrongful convictions as anything else; and the last thing you want is someone who will take your money, and then screw up the case or accomplish nothing – it happens. If you cannot afford an attorney, contact the innocence organization or state Public Defender’s Office for your area, but be aware that they cannot accept every case. Here is a link to the member organizations of the national Innocence Network: http://www.innocencenetwork.org/members

Be aware, also, that this is a long, arduous process with no guarantee of success. The justice system is set up so that once you’ve been convicted in a court of law, the deck is pretty much stacked against you. For the innocence organizations with which I am associated, the time from when we start investigating a case to when we achieve an exoneration (IF we do) averages 7 years. So be prepared for a long battle.

One thing that some advocates for the wrongfully convicted do is to set up a web site pleading their case. I have no idea how effective these are or what they actually accomplish, but they may help build some public support – which, of course, means nothing in court. If you do choose to create a web site, my advice would be to avoid emotional arguments, and stick to the facts of the case. Many of these sites that I see contain little in the way of logically compelling, verifiable facts or information that would cause me to believe in their case. I am skeptical that a website does any good, but one thing this may do is to help you document and organize the facts of the case for presentation to an attorney – which, of course, you should do anyway.

So, there you have it. Again, just my suggestions based upon experience. And one more thing to keep in mind if you are unfortunate enough to get sucked into this system – in the justice system, NOTHING happens quickly, particularly after you’ve been convicted … just be forewarned.