Ken Lammers follows up on his post about cops' gut feelings. While I'm sad to say that I think he is generally correct, I am also happy to say that, at least for the time being, matters are not as bad in Alaska. For example, under Stefan v. State, 711 P.2d 1157 (Alaska 1985), cops have to record any statement of an in-custody defendant before it can be admitted in court. As a practical matter, cops generally start recording before questioning of any witness. But this means that I can hear what my client said, which is invaluable. I hear the cop saying why he stopped my client. Sometimes, as you might expect, it's not the reason that is given in the police report (which we also get in Alaska). That leads to interesting motion work. The recording works both ways. I've had cases where the recording convinces me to go to trial and the flip, where it convinces me to try to get a favorable plea bargain.
Another benefit for Alaska is the way that indigent defense cases are handled. Typically, private attorneys get a contract with the Office of Public Advocacy (OPA). OPA has staff attorneys, such as myself, that handle cases. The contracts cover situations in which OPA staff attorneys cannot cover a case. The contract specifies a certain rate per hour, based on the types of cases and experience a lawyer has. Further, OPA, not the court, determines whether experts or investigators are hired for a case. For a misdemeanor DUI, your odds of getting an investigator are probably not terribly high as a general rule. For a homicide, though, I have never had a request turned down. Actually, I've never had an investigator or transcript request turned down. Before taking that statement to the bank, however, I offer a couple of provisos. First, the cases I get are generally homicides or other high-profile cases. (For the type of case I get, see here and here, both of which are my cases). As such, I'm more likely to get an investigator or transcripts if I need such. Second, I try to not abuse the privilege. I do not make a request unless I think it's really necessary and will be helpful.
That said, I agree that there are a lot of people that get convicted on conjecture or gut suspicion. While the law says that everyone is innocent until proven guilty, that's just a legal theory. In practice, I have to give a jury a good reason to acquit my client. If I argue that there is reasonable doubt about the case, I generally start preparing for an appeal (for non-lawyers, this means that I lose). I have heard jurors say after a verdict, "Well, there were several possibilities to explain what happen, and he [my client] did not disprove the state, so he must be guilty." This is ass-backwards. The state has to prove someone's guilt, but if I as a defense attorney argue this, many jurors think I'm just a slimy lawyer trying to hide facts and get some violent predator loose.
This is one reason why I (and most of the defense attorneys I know) prefer to represent guilty people. If I go to trial representing someone who's guilty and I lose, then in one sense, it is a lot less pressure. If I represent someone who is innocent, however, the jury is thinking "What did s/he do to be here?" And if I cannot actively persuade them that my client did nothing, my innocent client goes to jail.
Most citizens do not really want to examine what happens in the criminal justice system. That is a shame. We have watched over 100 people walk off death row, Death Row!!!, in the last 10 years or so for being innocent. Yet there has been no systematic investigation into how so many people could be convicted when they are innocent. We are not seeing systematic changes in the way that photo lineups are handled, in the way that state scientific laboratories are still run by the cops, in the way that judges give any benefit of doubt to cops, in the way we fund indigent defense, etc. So, like Ken, I am not surprised by skepticism about his posts because that attitude pervades the 'justice' system. And like Ken, I am saddened that attitude prevents us from seeking a justice system based on fairness, objectivity, and rationality.
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