old typewriter - guilty until proven innocent

If Innocent, Do Not Plead Guilty, Even to a Reduced Charge

The only reason a criminal case is dropped or you are adjudicated "not guilty" is there never was a case to begin with.

If your case is ultimately dropped, you have for all intents and purposes been deemed innocent despite the best efforts of the prosecution.
i.e.,  you have been cleared.

For that reason, if you are (or someone you know is) innocent of a charge, it is imperative that you plead "Not Guilty" at any cost. The following is a response I wrote to someone on an email list. I'm not a criminal lawyer, but I believe this is important. The letter is otherwise self-explanatory.

On the positive side, for most crimes, it is exceedingly rare for prosecutors to completely drop all charges, once docketed. Once the prosecution has identified a case, the prosecution will attempt to complete prosecution or negotiate a plea bargain. Therefore a full dismissal of the case would be an exceedingly strong indication of innocence.

Exceptions would be minor traffic matters and civil disturbances. This relates to US procedures.

More details at until proven innocent - the process.

On 12 Oct 2002 ____ wrote:

> Their daddy, was just released Monday (early) from 14 months in prison
> for a crime he didn't commit. ...
> So at the attorney's advice he pleaded "guilty" to a crime he
> didn't commit to get a shorter sentence ...

It's too late for their daddy, but NEVER plead guilty unless the trial is just not worth it (e.g., some minor traffic). The plea bargain, if a reduced sentence, can be approximated after a court finding of guilty anyway. It is also possible that unknown circumstances can turn up. In his case, there were multiple ways that further psych evidence could be produced.

Consider that it really doesn't matter whether prison time is 14 months or 28 months. All you're talking about is a rather miserable holiday camp. What matters is that a "guilty" judgement has much greater impact on the person's life. In the case of ___ crimes and other "personal" crimes, even a plea for a trivial charge in those circumstance is less than exoneration.

This affects just about every aspect of the person's life, and can make it much more difficult for the person should the same or another person make a charge.

The hard part is convincing the defense attorney. A for-fee atty already has incentive, but a public defender will merely try the case by rote unless inspired.

The explanation is in a criminal defense atty's justification for "getting criminals off":

"If I get someone off, I've made the system work and that benefits the rest of us. If I lose, then a criminal was punished. The difficult part is where I have an innocent defendant. If my client is innocent, then his freedom depends on how I do my job."
So there you have it. A public defender will just do a bare minimum, unless the public defender is convinced that the person is innocent. If the defender is convinced, the defender will do what he can because he/she doesn't want an innocent person to be punished on the lawyer's account.

It is not always easy to convince someone of innocence because of the common protestation of innocence. Often it is necessary to point out one item which contradicts the charges. (Example: photos showing no marks on a person "kicked 4 or 5 times in the head" by a 250 lb. man.) Once a first piece of evidence shows up, the rest will follow.

It is not uncommon for garbage evidence to be used by the prosecutor. It is also common among some departments to ignore the requirement to provide exculpatory evidence ("Brady evidence", Brady v. MD). A prosecution analysis of a defendant is not the end-all.

In this country, a person is presumed guilty until proven innocent. Procedures are used to insure easy prosecution and there is a disincentive for the prosecutor to make a reasoned determination of culpability. It is up to the citizen, often at great expense, difficulty, and often luck, to prove innocence. But the consequences of a guilty plea are too great.

To Unsubscribe send a blank email to: ______-unsubscribe@yahoogroups.com
To contact the List owner send an email to: _____@____.org

Plea Bargains

The prosecutor will normally attempt to reach an agreement for a plea of "guilty". This increases prosecution efficiency and in exchange the defendant may get a lighter sentence or a reduced charge.

From the defendant's viewpoint, a plea bargain only makes sense if the defendant has committed the crime. The defendant will have an arrest for the original crime and a "guilty" determination according to the plea bargain. The plea bargain may or may not include dropping of some charges, and sometimes is limited to a promise of a reduced sentence.

Note whether a plea bargain is presented in contrast with the maximum possible sentence. If so consider the offer to be meaningless bovine scatology (BS).

Conviction Rates

District Attorneys in many areas like to describe their conviction rates, which typically run about 90%. What they don't describe is that, in contested cases, where the defendant is represented and goes to trial, the conviction rate drops to 50%. (This includes people represented by either a private attorney or a public defender.)

The implications are obvious -- compare the effect of a plea bargain to the implications of a "not guilty" verdict. (The word "not" is key here.) Then consider that if you are represented and adjudicated guilty, you have someone to argue your case in sentencing.

The only downside is the cost of the lawyer if you are ineligible for court-appointed counsel.

The Specifics

THIS SECTION IS IMPORTANT If you remember one thing about the criminal process, it is:

If Innocent, Do Not Plead Guilty, Even to a Reduced Charge.

Never plead guilty unless the trial is just not worth it (e.g., some minor traffic). The plea bargain, if a reduced sentence, can often be approximated after a court finding of guilty anyway.

As a matter of reputation, the "guilty" verdict of course carries the weight of the original crime. If one is arrested for civil disobedience acts during a protest, the conviction may be something to brag about, even in a business setting. On the other hand, if the original arrest is for a "sin of the system", a conviction for a trivial crime would still have the taint of the original arrest.

More details at until proven innocent - the process.

Nifong Explains How He Nifonged the Duke LaCrosse Defendants

Here it is in Nifong's own answer to ethics charges from the response to the ethics complaint. (.pdf, 3 MB)
... and a much briefer article from the WaPost

A good analysis of the Nifong case and prosecution game playing from the Saint Louis University School of Law Law Review (.pdf)

Here's a choice comment, taken from an on-line response to a news story about the Nifong ethics case:

"As a disbarred attorney from another state, I believe that Nifong gives all disbarred attorneys a bad name."
- "Mostwise" - June 12, 2007 3:08 p.m. www.wral.com/news/local/story/1492534/

Before Arrest -- Don't Confess

Yeah, and don't confess after arrest either.

The ACLU recommends:

1. Do not admit to any wrongdoing.
2. "I do not consent to any searches" without a warrant
3. "Am I free to leave?"
The three items are described at
Police Stops (this website)
And of course the ACLU website

    and are described at

"busted" YouTube video
(45 minute video, but worth watching) and
(same thing, in text)

to Police Stops
back to process.html - "Guilty Until Proven Innocent" (the process)

back to index

Comments about this site: email me

first posted 10 Nov 02; Last revised 29 Apr 18. ~~ This page copyright 2002, Stan Protigal

privacy policy