The Presumption of Guilt: Why Most Convicted Felons Stay Behind Bars

           

            If you’re convicted of a felony, chances are you’ll stay convicted.

            Before trial, you are presumed innocent.  After conviction, you are presumed guilty.  And it’s a tough presumption to overcome.

            I first learned of this seeming asymmetry while representing a child molester.  I was in private practice and this was a partner’s client, handed off to me for appeal. 

            I made the best argument I could.  The defendant had been convicted of sexually assaulting his step-daughter, who suffered from Down’s Syndrome.  The defendant was drunk at the time and wandered into the step-daughter’s bedroom at night. The girl’s mother heard some kind of commotion and emerged into the hallway to find defendant coming out of the girl’s room.  As he exited, the girl threw his T-shirt at him.

            As I recall, subsequent conversations with the girl disclosed that the defendant had been “messing with her” for awhile.  I don’t remember whether prosecutors alleged rape or sexual assault.  But the facts were pretty hard to spin.

            “The most the state has proven is that my client took a wrong turn on the way back from the bathroom.”

            That was the best I could spin it.  It wasn’t surprising when the Court of Appeals affirmed the conviction. Although I was a little surprised when the Utah Supreme Court granted cert and agreed to review the Court of Appeals’ decision.  The client wanted me off the case.  After all, I had lost, so this time the defendant was insisting on the big guns.

            So, when the case went before the Supreme Court, I attended the oral argument and ran into the assistant attorney general who had whupped me in the Court of Appeals and was, as it turned, about to whup the partner who was now representing the child molester.  After the argument, I spoke briefly with the assistant AG.  She asked me why I hadn’t argued the case.

“Well, I lost,” I told her. “The client wanted the partner to handle the argument.”

She shook her head.  “But defendant’s always lose on appeal,” she said. “And you would have done a much better job anyway.  The partner argued it like a trial attorney. Appellate work is so different.”

            This shouldn’t have been news to me.  As I would later learn, criminal convictions are almost always upheld on appeal. The law is designed to produce a result.  For that reason, there are presumptions in favor or against litigants in almost every legally significant matter.  The presumptions embody certain values, of course, but they ultimately make it almost certain that any legal conflict will be resolved. 

            And the presumptions do not always guarantee a certain result. Despite the presumption of innocence, most people charged with crimes end up being convicted or pleading guilty.

            The presumption of guilt, however, is tough to overcome after a conviction.  As stated last week in State v. Hernandez, 2016 UT App 251, “We review sentencing decisions for an abuse of discretion.”  Abuse of discretion is hard to prove.  Abuse of discretion means that the judge’s decision was so out of bounds that no reasonable person could have ruled as the judge did. 

            Hernandez was arrested after he attempted to flee police in a stolen car.  He pleaded guilty to attempted theft, possession of a controlled substance, aggravated assault, and failure to respond to an officer’s signal to stop. 

Because he pled guilty, the criminal rules prohibit him from challenging his conviction.  He could only challenge his sentence. He believed the judge abused his discretion by imposing prison rather than probation. Hernandez contended that the court failed to “adequately consider his character, attitude and rehabilitative needs before denying him the opportunity for a non-prison sentence.”

The Court of Appeals gave short shrift to that argument, deciding to affirm in a Memorandum Decision, a ruling that is generally shorter and less formal because the three members of the court find the outcome obvious and the alleged errors trivial. 

Noting the violence of Hernandez’s current offense—which included ramming police vehicles in his escape attempt—the court ruled that he also had an extensive criminal history, mainly drug offenses, some of which were committed while he was on probation from a previous offense. 

“Given the violent nature of Hernandez’s crimes and the risk of injury involved, as well as Hernandez’s history of criminal activity while on probation, the court’s decision to sentence him to prison was not ‘so inherently unfair as to constitute an abuse of discretion.’” (citation omitted).

Hernandez, like my child molester, is still behind bars.  And that’s where they’ll stay until they’ve served their sentences.

Behind the Law

         “You can’t deny my client his Sixth Amendment rights!” 

         Huh?  Me?  I wouldn’t dream of it. 

         I’m just doing my job.  Which happens to include keeping convicted child molesters like Joseph K behind bars.   

         No matter. Today, K’s attorney is on a rant.  “We have a right to see those medical records,” he tells me.  “The Confrontation Clause guarantees defendants the right to confront their accuser.”

         He’s so convincing that, at first, I'm flustered.

         Jeez. Was K screwed-over by the system? How did I miss this?

         Then I remember he’s only pretending.  We’re attorneys, he and I.  We are advocates and every so often we play this game called practicing law, which requires us to say stuff, often with more indignation or conviction than we may feel.  We must, in a word, advocate.

“We have a right to look at those documents,” the Attorney insists.

         Well, maybe.

         “You’re talking about confidential medical records,” I say. “They’re protected.  The victim’s medical records are covered by the psychotherapist-patient privilege.  What she said to her counselor is confidential.”

         “To a point,” the Attorney said. “To a point. But under these circumstances, we are entitled to see at least some of her medical records.”

         By “these circumstances,” he means K’s  conviction for abusing his daughter, beginning when she was about 5 years old and continuing through her early teens when she finally disclosed the abuse to a therapist.  By law, the therapist was required to notify the police, which triggered the criminal investigation that resulted in K’s conviction and incarceration. 

         Now, K’s new lawyer is claiming that the attorney who represented him at trial screwed up by not obtaining or attempting to obtain records from the therapist concerning the daughter’s disclosures.  The Attorney believes these records will show that the daughter was either lying about the abuse or that her memories of abuse are false, implanted by improper questions from the therapist and later the police.

         I find all this pretty outrageous.  

         “That’s pretty outrageous,” I say.  “I mean, K abuses his daughter for more than a decade and now wants to re-victimize her through the legal system?  I don’t think so.”

         Still, I know the Attorney isn’t totally up in the night. Under the federal and state constitutions, K has rights, among them the right to confront his accuser directly and rebut her allegations. 

But defendants aren’t the only ones with rights.  Victims have rights, too.

“You know,” I tell the Attorney, “victims have rights, too.”

“Yes, they do,” the Attorney acknowledges.

Strange as it may seem, victims’ rights are a relatively new innovation.  Not long ago, defense attorneys in rape and sexual assault trials were given free rein probe the victim’s sexual history with the aim of persuading jurors she’s is a slut.  And we all know that sluts can’t be raped.

Things began to change in latter half of the last century.  In “Real Rape”(1987), Professor Susan Estrich of the University of Southern California noted that rape prosecutions, especially in cases where the victim was acquainted with the perpetrator, centered around the element of non-consent.  Estrich pointed out that while non-consent is an element in other crimes—trespass, for instance—the element was different in rape prosecutions because the victim was required to resist. Really resist.  In the words of one court, “[n]ot only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.” Brown v. State, 127 Wis. 193, 106 N.W. 536, 538 (1906). 

Fortunately, such thinking is no longer the law in most jurisdictions, including Utah.  As the Utah Supreme Court recognized in 2002: “The revelation that women victims of rape have long been mistreated by the law is a relatively recent development. Courts have long held institution-wide distrust of rape victims in cases where they were acquainted with their assailants.”  State v. Blake, 2002 UT 113, ¶ 11, 63 P.3d 56.

Utah, like many states, has enacted statutes and rules designed to safeguard the victims of sexual assaults. Utah also passed a Victims’ Rights Amendment which promised to victims the right “[t]o be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.” Utah Const. art. I, § 28(1)(a). 

“The Victims’ Rights Amendment really isn’t the issue,” the Attorney says.  “The real question is how to balance victims’ rights against the defendant’s trial rights.  And that question is resolved by the rules of evidence.”

Yeah, yeah.  

Rule 506 of the Utah Rules of Evidence cloaks in privilege confidential communications between a patient and her therapist in matters regarding treatment.  Anything you tell your therapist is supposed to stay secret unless you decide to waive the privilege.

 But all rules have exceptions and Rule 506 is no exception. 

“Under Rule 506,”the Attorney continued, “an otherwise privileged communication must be disclosed when the communication is relevant to a witness’ or victim’s physical, mental, or emotional condition when that condition is an element of any claim or defense.  That’s what we’re saying.  The daughter has a condition that’s relevant to K’s defense.”

“Well,” I said, “you’re entitled to make that argument. But, you know, the rule recognizes that privileges will often ‘interfere with establishment of the whole truth.’ The rule explicitly states that privilege ‘reflect good policy choices, fostering candor in important relationships by promising protection of confidential disclosures.’ Without the protections of privilege, victims will be less likely to come forward.”

The Attorney laughed dismissively.  “True,” he said.  “But even child molesters have rights. The 6^th Amendment to the constitutions grants to defendants like K the right ‘to be confronted with the witnesses against him . . .’ You know that.”

The right of confrontation allows defendants to dig up dirt on their accusers to make them look bad.  Ergo: The request for the victim’s medical records.  Evidence that the victim recanted or changed her story during therapy sessions could be used on cross-examination to raise doubts about the victim’s truthfulness.

“I understand why you want these records,” I said.  “You’re thinking that she told one of her therapists that her dad really didn’t abuse her.”

“Well, sure,” said the Attorney. “That would be great.  But we really don’t expect to come up with a smoking gun.  What we’re most interested in is how her story may have changed over time.”

“What difference does that make?”

“Maybe no difference. But if her story has changed, the jury should have known that.”

“Why?”

“Because there is at least a possibility that the addition of certain details are not her actual memories, but rather memories implanted by improper questioning.”

Based on this theory, K’s attorney asked the trial judge to authorize subpoenas for the daughter’s medical records.  I opposed the request, but the judge granted it anyway.  

That wasn’t the end of it. I filed a motion for an extraordinary writ, asking the Utah Supreme Court to stay issuance of the subpoenas and grant an appeal to review whether K’s attorney had met the criteria for subpoenaing the records.  

“The Supreme Court granted the stay,” I reminded the Attorney.  “So I don’t know why we’re arguing about this.  It’s up to the court now.”

The Attorney sighed.  “Yes it is.  I just wanted to see if you had come to your senses and might agree to withdraw your appeal.”

“Sorry,” I said.  “I’ll see you in court.”

Inside the Law

         

         “I made a mistake,” the attorney said.  “And because of my mistake, an innocent man has spent 10 years in prison.”

         Dammit.  She would have to say that.  Now what?

         “But you don’t know exactly what that mistake was, do you?”

         “Well,” she said, “I told Joseph K that any claims we didn’t raise on direct appeal could be raised through the post-conviction process.  And that was wrong.”

         I should point out: This wasn’t a private conversation.  The attorney was on the witness stand, in a public hearing, under oath and admitting to all the world that she had screwed up royally.  She’s claiming that if she had done her job, Joseph K would be back on the street doing what he does best—molesting children.

         Yes, I’m biased.  I am a prosecutor and it’s my job to keep Joseph K behind bars. But it’s not just a matter of professional responsibility.  I believe K did molest his daughter and got what he deserved.  He needs to stay locked up.

         But here’s the problem: K doesn’t like being in prison.  He wants out.  To that end, he has sued the State, claiming that he’s in prison only because his previous attorneys made fundamental mistakes—errors so egregious that K's conviction violated his constitutional rights.

         This is a common tactic.  When defendants get convicted, their new attorneys immediately turn on the former attorneys.  What’s more, many defense attorneys see it as part of an ongoing duty to their clients to roll over and admit, to varying degrees, that they made a mistake or at least that there’s something more they could have done.

         “What claim do you think you should have raised?” I asked.  “Before you can be deemed ineffective, you need to have missed a claim that was obvious from the trial court record.  What was the claim you believe was obvious?”

         She hesitated.  “I haven’t reviewed the claims he has raised on post-conviction carefully enough to know whether or not they have merit.  I only know that I didn’t look outside the record to investigate the kind of claims he is attempting to raise on post-conviction.  And that was a mistake.”

         Bzzzzz! Wrong answer.  Partly because it’s not the answer I wanted, but also because it’s not true. As the attorney who represented K on appeal, she was charged with pointing out mistakes made during K’s trial—mistakes so serious that the appellate court would conclude that the jury’s guilty verdict is unreliable.  In my view, K’s lawyer did her job.  She was, in legal terms, “effective.”

         What makes an attorney "effective"?  The law requires defense attorneys to conduct a “reasonable” investigation.  The reasonableness of an investigation is determined on a case-by-case basis.  But because what’s reasonable is an objective standard, it doesn’t matter whether the attorney in question thinks she was ineffective.
         What's gained if K's appellate attorney is found ineffective is that his new attorneys bypass a procedural hurdle that would otherwise bar claims they are attempting to raise in post-conviction.  If there are claims the appellate attorney could have and should have raised, then K gets to raise those claims in this post-conviction proceeding.
         Which is to say: I get it.  It's all just strategy.  Still. It’s highly annoying because it puts me in the somewhat paradoxical position of having to argue that K’s attorney did a bang-up job even though she says otherwise.

         “You’re aware, are you not, that members of the bar are required to report attorneys who perform incompetently?”

         Her eyes narrowed.

         “Yes,” she said.

         “So, have you reported yourself?”

         Now she was pissed.  “I don’t need to report myself.”

         “Why not?”

         “Because I know you’ll do it for me.”

         Well, maybe.  To provide some disincentive for defense attorneys to admit to ineffectiveness, my office has considered notifying the Utah State Bar’s Office of Professional Conduct whenever an attorney is found to be ineffective.  

         Such a policy is very unpopular with the defense bar.  A friend who was a defense attorney once said to me: “Don’t take this personally.  But you guys are a buncha fuckin’ assholes!”

         In fact, I have never notified the bar when an attorney has acknowledged ineffectiveness.  And I doubt I’ll tell on K’s attorney.  This is partly because I like her, but also because the idea of ratting someone out just doesn’t sit well with my west-side sensibilities, especially when the attorney in question is perfectly competent and is only doing what she believes duty requires.

         What is my duty?  At the moment, I wasn’t sure what to do.  My cross-examination of the attorney had been fairly unsuccessful.  If anything, my clumsy questions had simply reinforced the point made on direct examination, i.e., that she believes she hadn’t done what she should have done in representing K on appeal.

         I decided to cut my losses.  “No further questions,” I said.

         I went back to my seat and was shuffling through papers to prepare for the next witness when I sensed someone standing next to me.  

         “Good to see you,” K’s attorney said, extending her hand.

         “Good to see you, too,” I said.

         We shook hands briskly before she strode out of the courtroom.  

         In the end, we are professionals.   It doesn’t have to be personal. 

         Then again: The nerve of those assholes!