The “Off on a Technicality” Canard

Friday, November 30th, 2007

Scott at Grits for Breakfast has more on my piece about public defenders.

One point I’d like to address that people often bring up in responding to my work on criminal justice reform is this canard that most defendants “get off on a technicality.” It just isn’t true. Sure, it happens. And those cases make the newspapers, or get picked up and demagogued by the Bill O’Reillys of the world. But the vast majority of prosecutions at all levels end with convictions. Juries walk into a courtroom thinking there must be some reason why they’re there. That is, they come in believing a crime was committed. And most people have a fair amount of faith in prosecutors and cops to get the right guy.

A defense attorney’s job, then, is to convince the jury either that (a) no crime was actually committed, or (b) the cops and prosecutors screwed up, and got the wrong guy. That’s a pretty tall order. Justified or not, most people have a fair amount of faith in public servants to get it right most of the time.

Data at the state level is hard to come by, but at the federal level, prosecutors have won guilty verdicts from juries at somewhere around an 80-90 percent clip (as noted in the linked article, the figure’s lower for rarer, non-jury trials). And that’s after they get guilty verdicts in the 90 percent of cases that are plea bargained before ever making it to trial. Once they win a guilty verdict, that verdict is upheld on appeal about 80 percent of the time (of course, this is only in those cases that are actually appealed).

So let’s dispense with the idea that “the deck is stacked against prosecutors.” It isn’t. Most of the time, they start a case with the jury’s sympathy. They’re usually better-funded and better-staffed, and they win far, far more often than they lose. I’m willing to entertain the argument that that’s because most of the people who get charged with crimes are in fact guilty of them. But “most” certainly isn’t “all.” And we’ve seen far too many exonerations over the last 10 years to think the system is working as well as it should be.

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16 Responses to “The “Off on a Technicality” Canard”

  1. #1 |  pris | 

    I have a friend who is a public defender in Nevada- the stories he has to tell about his clients would curl your hair. Many of his clients were given the shaft by lousy lawyers or judges who preceded him. So, where is the middle line here? I have all the respect in the world for ethical public defenders who respresent their clients well. Yes, more money to assist them. We hear horror stories from New Orleans, it is good to hear from a public denfender who does his job. They need our support.

  2. #2 |  Michael Chaney | 

    I have one word for people who think prosecutors have it too easy: Nifong. If that’s not enough, Richard Paey. It’s obvious that at least some prosecutors have it way too easy. And apparently nothing better to do…

  3. #3 |  Leshrac | 

    It’s hard to feel any sympathy for the police/criminal justice machine. What are the odds that between lying cops, planted evidence, conveniently misplaced or forgotten exonerating evidence, malicious/self righteous prosecutors, default guilty juries, poorly funded/inexperienced overworked defense attorneys, subjective interpretation of the defendants past, expressions, speach habits etc,? I’d say it isn’t a 50/50 tip between guilt and innocence, I’d say it’s an uphill battle all the way to PROVE innocence rather than a burden of guilt.
    The criminalization of America. Make enough laws and get everyone fingerprinted. Make more laws with increased penalties and suspend voting rights so that next election no one can even vote in defense of their views. Make legalize so mind boggling that paralegals and lawyers make it too expensive to even stand up for our own rights, our own property, our gommunity goals, our nations own founding principles… if you can get a judge that isn’t already bought to even listen.

  4. #4 |  Guidonet | 

    I was always under the impression that getting off on a techinicality only applied to celebrities and politicians:

    http://seattletimes.nwsource.com/html/eastsidenews/2004041544_hague29e.html

  5. #5 |  Edmund Dantes | 

    The “get off on a technicality” is an outgrowth of “if you have nothing to hide”, “he’s arrested therefore he must have done something wrong”, etc lines that all stem from the belief that right honorable upstanding citizens would never find themselves in that predicament (i.e. usually teh person making the comment).

  6. #6 |  Robert | 

    I don’t believe that giving public defenders more money is going to result in any more justice for those falsely accused. In my opinion the only thing that would reduce the number of people who are wrongly prosecuted would be to hold the prosecutors others (police, etc.) more responsible when they get the “wrong guy”. Right now, it is very unlikely that a prosecutor will see any negative repercussions for prosecuting the wrong person. If the prosecutors don’t have anything to lose, then of course they’re going to keep going after whomever is convenient.

    I’m not going to hold my breath waiting for public “servants” to be held more accountable for their actions, but that IS what it would take.

    Also, if public defenders had more money and resources, causing prosecutors to lose more cases, they would get up in arms and demand more resources in order to get a higher conviction rate. Even worse, if win rates drop, I’m sure we’d see prosecutors and politicians clamoring for more strict laws and less “burden of proof”.

    The only way to fix the problem is to change people’s way of thinking.

  7. #7 |  Francis | 

    I’m a public defender’s husband.

    1. Defending the (arguably) innocent is much harder. Losing means an innocent person goes to prison.
    2. While some prosecutors are trying to achieve some kind of justice, many are amoral bloodsuckers trying to build a political career or get a judicial appointment on the backs of the accused. Overcharging and misconduct are shockingly common. Frex, a woman who had a case overturned at the court of appeal for withholding exculpatory evidence from the defense is in charge of overseeing entry-level prosecutors (this in a large county in California).
    3. More resources would help a lot.
    4. Wow, there are some really really really (lots more really) bad people out there. Recent case: charming well-educated middle aged man who had sex with all his children on a regular basis, starting when they were not even teenagers.

  8. #8 |  Zeb | 

    The (very) occasional defendant “getting off on a technicality” is a good thing. Technicalities don’t just happen on their own, they are generally there because the police and/or prosecution did something wrong. These “technicalities” are one of many pressures needed to keep the criminal justice system fair and honest. If a bad guy gets to walk every now and then because of it, get the law enforcement folks to do a better job, don’t ask defense attorneys to do a worse job.

  9. #9 |  Nick T | 

    While I agree with everything in the post, I would say the reason “got off on a technicality” is wrong is because there is no such thing as a “technicality” that would allow a criminal defendant to get off.

    That is to say, when the police illegally search your home, when the prosecution withholds evidence, when a confession is coerced, when double jeopardy is applied etc. it is not a “technicality” it is the most effective, and likely the only, way to enforce EVERYONE’S FUNDAMENTAL RIGHTS. I work in a public defender’s office (though as a family attorney) and there is a saying that “The Constitution is not a technicality.”

    A “technicality” makes it sound like the prosecution filled out the wrong paperwork or something. Next time someone says a person got off on a technicality, don’t just say it’s uncommon, tell them they’re attitude reflects a lack of respect and understanding of the Bill of Rights.

  10. #10 |  pris | 

    From my friend the public defender in Nevada.

    I live and practice in Nevada, which is the one jurisdiction in the country that allows people to go to prison based upon junk science. (Pending a couple of appeals I’m handling right now where I hope our High Court joins the rest of the country and the 21st century!) So, my view is skewed accordingly:

    1. I cannot think of a case where I got a guy off on a technicality. I don’t view things like the statute of limitations or double jeopardy as a technicality, however, unlike the O’Reilleys of the world.

    2. I can’t think of a case where I won in the court of appeals, but should have lost. I can think of cases I won for the wrong reasons; but that’s different.

    3. With public defenders, the issue isn’t money so much as time. There simply isn’t enough time for John Q. Public Defender to give every one of the 80 or so clients s/he has at any given time to give each a proper defense. (I guess you could say it’s money, in the sense that with a bigger budget, the county or state could hire more public defenders and then each would have a less daunting case load.) Some public defenders do get lazy in the face of their overwhelming caseload and cut corners, however. Unfortunately, however, the same can be said for some lawyers in private practice. RC

  11. #11 |  Windypundit | 

    What Nick T said.

    Richard Paey was sent to jail for 25 years for having medicine that he needs without the proper paperwork, but our Constitutional rights are a technicality???

  12. #12 |  Bill | 

    A few observations:

    Being a prosecutor in a city like Baltimore actually is hard and the deck is stacked against you. Jurors have a very hard time convicting – not because they are overly concerned with justice, but rather because they are stupid and racist.

    Being a prosecutor in a rural or suburban area is easy. The jurors have a very easy time convicting – not because the cases are any better, but because many of them are stupid and racist.

    Being a Public Defender is hard and often thankless work (so is being a prosecutor in some places.) What is the solution? Aside from ending the drug war? Public Defender Offices need more money to hire more lawyers. If your caseload is too big you screw things up. You can’t prepare your cases as you should and everyone suffers.

  13. #13 |  Lloyd | 

    It’s worth pointing out that prosecutors and state’s attorney’s offices are better funded than are the public defenders’. Especially in high-profile cases the prosecution will have, comparitively, unlimited resources — where the public defender has to do things on the cheap.

  14. #14 |  Bill | 

    Sometimes prosecutors are not better funded. I remember starting off in Baltimore City as a prosecutor making 37,700. The starting pay for a Public Defender had just been bumped up to 48,800. The City funded the prosecutors. The State funded the Public Defenders.

  15. #15 |  Slugger | 

    The other team had the ball. It was 3rd down and long. Their quarterback threw a long pass to their receiver. Luckily, our free safety tackled him before the ball got there preventing a long gain for their side. Unfortunately, the field judge did not allow this great play on a technicality!!

  16. #16 |  J. Judas | 

    I’m an ex-cop.

    That was about 20 years ago, and I only lasted a little longer than 5 years. The problem was that I started to have suspicions that as a police officer, I was one of “the bad guys”. At the time, I considered myself to be a “peace officer” but most of the others considered themselves to be “law enforcement officers”.

    That said…

    I would rather see thousands of “bad guys” walk free than see a single innocent person falsely convicted.

    I think that if more people had this idea in mind, then justice might have a better chance of being served. Unfortunately, the idea that seems to be foremost in people’s minds is the concept of revenge. This is probably one reason that the US justice system is an oxymoron.

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