Recently there was a small kerfuffle in parts of the atheist blogosphere over, of all things, the guilt of innocence of Jerry Sandusky. Sandusky, you’ll recall, is the long-time assistant to legendary Penn State football coach Joe Paterno who was convicted on dozens of counts of child sexual abuse related to his position there. I’m less interested in the specifics of this case than I am about one particular argument made that raises an interesting question about the criminal justice system.

Things kicked off with a review in Skeptic magazine of a book, The Most Hated Man in America: Jerry Sandusky and the Rush to Judgment, which argues that Sandusky’s trial was tainted by recovered memory therapies and led to a wrongful conviction. The book’s got favorable blurbs from memory expert Elizabeth Loftus and false confessions expert Richard Leo, two names that make my defense lawyer ears prick up. The review was then favorably discussed by some of the atheist heavyweights, including Jerry Coyne and Daniel Dennett.

Others in the atheist blogopshere pushed back, wondering how skeptics could defend Sandusky. While some offered take downs of the review itself, others simply argued that the issue was settled because of Sandusky’s convictions. The leading proponent of that position was PZ Myers who wrote (links removed):

They’ve published a defense of Jerry Sandusky! Look, Jerry Sandusky was found guilty of 45 counts of child sexual abuse. He’s a convicted pedophile. The prosecution brought in a long train of witnesses and evidence of criminal behavior spanning at least 15 years and 10 victims, and this case found him guilty in a community that was full of fanatical Paterno/Sandusky defenders. Anyone remember the riots and protests when the Paterno empire fell? You can’t have a witch hunt when the targets are regarded as holy saints — the evidence was just so overwhelming and undeniable that even angels by repute could be defrocked at last.

Myers may be right about the weight of the evidence, but what I’m more interested in is the idea that because Sandusky was convicted at trial that it’s somehow wrong to examine the evidence against him. After all, the jury has spoken, right?

Except we know that juries get it wrong. Not all the time, certainly (and an overwhelming number of cases never get to a jury anyway), but enough for it to be a concern:

In the past quarter-century, the work of dogged attorneys and advances in forensic science have exonerated more than 2,150 men and women, 161 of those from death row. The Innocence Project, a New York–based nonprofit founded by Barry Scheck and Peter Neufeld in 1992, has freed more than 200 people and spurred the creation of numerous smaller organizations around the country devoted to the same mission. (From 2012–2015, I was the director of the Loyola Law School Project for the Innocent in Los Angeles.) By some estimates there are tens of thousands more wrongfully convicted prisoners languishing behind bars.

Given that, what kind of deference should the public give to guilty jury verdicts?

A quick aside on non guilty verdicts. It’s hard to read anything at all into those, since there are so many reasons why such a verdict could be returned. Maybe the prosecution completely failed to prove its case, or maybe it couldn’t meet the final hurdle to of reasonable doubt. Or maybe the jury nullified in light of sufficient evidence. With a not guilty verdict it’s hard to say much beyond “that guy hasn’t been convicted of anything.”

Back to guilty verdicts – what kind of weight should the general public give them? I may lose some of my defense attorney cred for this, but I’m going to say a lot. The law likes to use lots of “rebuttable presumptions,” things that are taken as true, but can, with sufficient evidence, be shown to be false. For example, in Federal court if you’re arrested on just about any drug offense there’s a presumption that you should be held without bond. You can argue your way out, but it relieves the Government of the need to argue your way in.

I’d grant guilty verdicts that kind of presumption because it’s the one time when a group of people are given one job only – evaluate the evidence presented and, using the filter of the judge’s instructions, determine whether the defendant did it or not (whatever “it” is). Everybody else in the courtroom – the lawyers, the judge, the spectators, the press – all have other things competing for their time and attention. Only the jurors have the clear job of listening to every word of testimony, looking at every exhibit, and deciding what it means.

It’s not a full proof system, for sure. The jurors only hear the evidence presented in court, so if the defendant has a shitty lawyer or a prosecutor who is pushing the boundaries it could present a skewed view of the case. In addition, the rules of evidence pare down the universe of facts that a jury can consider, leading to situations where the “well informed” are “those outside the courtroom.” And, finally, the case itself might be tangential to whatever the defendant is really accused of doing. That Al Capone was convicted of tax evasion does little to show, one way or the other, that he was a mob boss.

Which is why I think a rebuttable presumption is the way to go. It’s perfectly right to say because he was convicted of dozens of sexual abuse counts against children, Sandusky probably actually molested them. But it’s not an ironclad guarantee, as Myers and others seem to suggest. Those who would rebut the presumption, however, have a lot of heavy lifting to do.

There are lots of things about the legal system that we lawyers take for granted that make lay people shake their heads or look at you like you’ve got a bamboo plant sprouting from your forehead. One thing that really confuses them are so-called Alford pleas, in which a person pleads guilty to a crime, all the while maintaining that they’re actually innocent. How the hell does that work?

It should be simple enough. You’re charged with a crime. This presents you with two choices – plead guilty or not guilty. Presumably, if you didn’t do it, you plead not guilty and go to trial. Guilty pleas only happen when the person is actually guilty right? Putting to one side for now the fact that that’s not right, let’s tweak the scenario a little. Let’s say you didn’t do it, but you’re afraid the prosecution can win a conviction, anyway. And they’re proposing a deal that would allow you to face considerably less prison time than if you lost at trial. What would you do?

That’s the situation that faced Henry Alford in North Carolina in 1963. He was charged with first-degree murder, but pleaded not guilty. However, the evidence was strong and the prosecution offered to let Alford plead guilty to second-degree murder instead. At the plea hearing, Alford testified that he didn’t kill anyone but didn’t want to risk the death penalty if convicted on first-degree murder. He was convicted and sentenced to 30 years in prison.

Alford went back to court later, claiming his guilty plea was coerced. The case wound its way to the Supreme Court, which upheld the conviction in North Carolina v. Alford, 400 US 25 (1970). After noting that lower courts were split on whether a guilty plea could be accepted when the defendant maintains his innocence, the Court ultimately concluded that:

while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Or, as the West Virginia Supreme Court laid out in its decision approving such pleas, Kennedy v. Frazier, 357 SE2d 43 (1987):

a guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant is not coerced within the meaning of the Fifth Amendment simply because it was entered into to avoid the possibility of a significantly higher penalty. . . . An accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that a jury could convict him.

How often do Alford pleas occur? Hard to say, but there is an alarming trend of their use in one particular area, as detailed by two recent articles by ProPublica – where DNA evidence appears to exonerate a convicted defendant, but prosecutors insist on retrying the case.

One article takes a look at a particular murder case in Baltimore from 1987 (fans of David Simon’s book Homicide: A Year On the Killing Streets will recognize the detectives involved). One man turned in what looked to be the murder weapon (it was laying in a yard) in hopes of getting a reward. When the police turned on him, he fingered a second man as the killer. Neither had anything to do with the murder, yet both were convicted for it after separate trials (the story details how this happened – it will turn your stomach).

Years later, DNA tests destroyed the evidence and arguments used to convict the two men. So they were released, right? Of course not – the prosecutors couldn’t admit they’d got the wrong guys. They insisted they would proceed to retry both men, but they did offer something – enter Alford pleas and walk out of prison with a time served sentence. One man took the deal, the other didn’t but was eventually acquitted. As you might expect, their lives since they’ve been released have been quite different.

But it’s not just prosecutors who are wrapped up in insisting they’re right. The entire criminal justice system is designed not to fix mistakes. As the article puts it:

Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties?

This is both right and wrong. Appellate courts and courts that review convictions otherwise (as via habeas corpus proceedings) are, generally, looking at procedural issues. As for factual ones, they will defer almost entirely to the jury’s verdict or the trial court’s original decision. Getting a reviewing court to disagree with the original court on a matter of fact is a herculean task. That’s why I say the quote is both right and wrong. It’s wrong is suggesting that appellate courts and others “focus solely on fairness.” In truth, they rarely give a shit about fairness, so long as all the “i”s are dotted and the “t”s crossed.

A second article catalogs numerous cases of similar case in Baltimore. But these scenarios aren’t limited to Charm City. One need only look to the final resolution of the West Memphis Three case to see it pops up all over the country (although, ironically, not in my part of the world – I don’t think I’ve ever seen an Alford plea taken in the Southern District of WV).

I think the Alford plea began as a kind of mercy. In a criminal justice system defined by plea bargains, how can you cut somebody out of their benefits just because they insist they didn’t do it? That it’s turning into a tool for blinkered prosecutors to keep their records intact (and those of the cops who did the investigation) is troubling. Does Alford need reformed or scrapped altogether? Only time will tell, I suppose.