The question criminal defense attorneys are most frequently asked is, "How can you defend that guy?" The answer is that our judicial system is not perfect. There is frequently a rush to judgment, police and prosecutors do not always play by the rules, and innocent people are sent to prison.
The pressure to hold someone accountable when a terrible crime has been committed often corrupts the process. The rush to judgment is nothing new. In the 1940 novel, The Ox-Bow Incident, by Walter Van Tilberg Clark, cattle rustling riles a Nevada town and everyone wants to catch the thieves. Three people are caught. The posse, led by the mayor, does not want the rustlers to escape through the courts, so the three men are hanged without a trial. Riding back into town, the posse meets the sheriff, who tells them they had hanged innocent men.
Today, the media fans the flames of indignation in the court of public opinion. The sexual abuse allegation against French politician Dominique Strauss-Kahn should be a vivid reminder of how dangerous the rush to judgment can be. In that case, the hotel housekeeper who accused Strauss-Kahn of sexual assault lied about being a rape victim in Guinea on her asylum application and was recorded talking to an imprisoned friend about exploiting Strauss-Kahn's wealth. The case collapsed, but not before Strauss-Kahn was convicted and condemned by the morally outraged public.
In 1986, an English scientist used DNA to help exonerate a man accused of raping and killing two teenage girls. Since then, DNA testing has helped to exonerate 280 people wrongly convicted in the United States. DNA evidence has helped to expose horrible flaws in our judicial system, including misconduct by police and prosecutors and egregious mistakes by witnesses and forensic scientists.
An analysis of the first 250 exonerations found that 76 percent of wrongly convicted prisoners were misidentified by witnesses and half the cases involved pseudoscience or flawed forensic evidence. The testimony of a jailhouse informant was key to the wrongful convictions in 21 percent of the cases.
Finally, and perhaps hardest to understand, is that 16 percent confessed to crimes they did not commit. In virtually all of the confession cases, the interrogation lasted many hours and even days. The police like to point to details in the confession that only the perpetrator would know. The obvious explanation is that the police, intentionally or accidentally, fed the details to the accused.
Police and prosecutors become locked into convicting a particular defendant. Although they want to convict the bad guys, they also want to win for the sake of winning. Withholding exculpatory evidence from defendants is not uncommon in the competitive enterprise of convicting bad guys.
In the prosecution of Alaska Sen. Ted Stevens, a court-appointed investigator found that the prosecution was "permeated by the systematic concealment of significant exculpatory evidence." Stevens lost his re-election bid in 2008. The government was later forced to set aside his conviction because the prosecutors had ignored their constitutional duty to disclose favorable evidence.
It may be inconvenient for the lynch mob to await a jury's judgment, but that is the mechanism we have in place to avoid sending an innocent person to prison or even to his death.
Sensational crimes make headlines. Thoughtful citizens should remember that a person is presumed innocent in this country until a jury has weighed the evidence in a court of law.
Walter F. Bugden Jr. is a criminal defense attorney in Salt Lake City and a partner in the law firm of Bugden and Isaacson, LLC.