I read a headline the other day which trumpeted the contention that 2,000 wrongly convicted people have been exonerated in the past 23 years. Reading the article, you learn that the researchers had only documented 879 wrongful convictions, but they had added to that number with anecdotal reports from other sources. The researchers went on to say that far more innocent people were convicted than that. I'm not really sure what their basis is for making that last claim. By stating speculation as fact, the researchers undermine their credibility. It leads one to suspect their objectivity.
Let us accept the number 2,000 for purposes of this discussion.Two thousand seems like quite a large number, but is it really? If you read the article to the end you would have learned that there are approximately 1,000,000 convictions per year in the United States. Over a 23 year period of time, that would make 23,000,000 convictions. This gives us a wrongful conviction rate of 0.0087%, for a 99.9913% chance that a randomly chosen convict is guilty.
Oddly enough, according to www.holeinoneinsurance.com, the odds of a duffer hitting a hole-in-one is 0.008%, for a 99.992% chance that a randomly chosen amateur golfer is not going to hit a hole-in-one. Of course, holes-in-one are far more frequent than wrongful convictions, because far more than 1,000,000 rounds of golf are played every year (over 595,000,000 in 2004 according to http://www.cbssports.com/general/story/8367355).
According to www.walkinginfo.org/faqs/answer.cfm?id=31, at least 4,000 pedestrians per year were killed by automobiles between 1990 and 2009. At that rate, there will be no fewer than 92,000 pedestrian fatalities in 23 years. This means that in the U.S.A., at least 46 pedestrians die for every one person who is wrongfully convicted. This could give you the mistaken impression that being falsely accused of crime is safer than crossing the street.
No system devised and operated by humans is perfect, including the criminal justice system. The possibility of wrongful conviction is why we have such a high standard of proof in criminal trials. The reasonable doubt standard weeds out 99.9913% of those charged with crime who are actually innocent, and it does so at the cost of acquitting large numbers of people who are actually guilty. Taking these factors into consideration places the percentage of wrongful convictions into better perspective than headlines stating that 2,000 convicted felons have been exonerated.
Friday, May 25, 2012
Tuesday, April 24, 2012
JUSTIFIABLE HOMICIDE
Years ago I went through a shoot-don't shoot exercise in a primitive form of "virtual reality" simulator. I had a laser gun and stood before a life size movie screen in which scenarios were enacted in front of me. I confronted a bank robbery, a traffic stop gone bad, and a rape in progress. I felt that I would do just fine on the drill. After all, I was a prosecutor and I could recite the law on self defense almost verbatim.
In the bank robbery, the bad guys attacked me and I shot them without shooting any innocent bystanders. In the traffic stop, I was able to talk the irate driver into dropping his weapon and submitting to arrest. Then I found myself in a dark parking garage confronting a rapist who had a knife to his victim's throat. I drew my weapon and called on him to let the victim go. We stood frozen in time for what seemed like an hour, then the victim twisted around and broke free from her attacker.
I waited until the victim got out of the line of fire and then shot the rapist between the eyes. "Good shot!" I thought. Someone else was not impressed. The stage immediately went dark, and the referee informed me that I had just committed premeditated murder. If I had been thinking with the reasoning part of my brain, I would have realized that the rapist was threatening nobody when I shot him.
Even if you intellectually know what to do in a crisis, you may not do it when the adrenalin starts pumping and you begin to think with the primitive part of your brain. You may make a mistake and get yourself or somebody else killed unnecessarily. And the authorities who will be second guessing you may not see things your way. They will be a whole lot more likely to let you go home instead of putting you in jail if your first reaction is flight rather than fight.
Private citizens have no duty to confront the goblins in our society, but police officers do. This means that the police do not have a duty to retreat, they have a duty to stand their ground. The wall at the National Law Enforcement Officers Memorial in Washington, DC, bears the names of many officers who gave their lives protecting the public by fulfilling the duty to stand their ground.
In Florida you, as a private citizen have a right to stand your ground outside your home. You also have a "right" to act irrationally. There is no wall honoring the myriads of people who died exercising their "right" to act irrationally. Most states impose a duty to retreat before using deadly force. I don't think of it as a duty, I think of it as a privilege. When confronted by danger, you can turn around and run--and spare not only your life, but the lives of your attacker and innocent bystanders.
A karate instructor whose name I forget (I'm doing that more often as I grow older) used to tell his pupils, "When threatened by another, walk away. If he follows you, run. If he chases you, run faster. If he catches you, kill him." I think I can word that last sentence a little better: "If he catches you, use sufficient force to neutralize the threat." It's not only the humane thing to do, it sounds better that way when you're testifying in court.
In the bank robbery, the bad guys attacked me and I shot them without shooting any innocent bystanders. In the traffic stop, I was able to talk the irate driver into dropping his weapon and submitting to arrest. Then I found myself in a dark parking garage confronting a rapist who had a knife to his victim's throat. I drew my weapon and called on him to let the victim go. We stood frozen in time for what seemed like an hour, then the victim twisted around and broke free from her attacker.
I waited until the victim got out of the line of fire and then shot the rapist between the eyes. "Good shot!" I thought. Someone else was not impressed. The stage immediately went dark, and the referee informed me that I had just committed premeditated murder. If I had been thinking with the reasoning part of my brain, I would have realized that the rapist was threatening nobody when I shot him.
Even if you intellectually know what to do in a crisis, you may not do it when the adrenalin starts pumping and you begin to think with the primitive part of your brain. You may make a mistake and get yourself or somebody else killed unnecessarily. And the authorities who will be second guessing you may not see things your way. They will be a whole lot more likely to let you go home instead of putting you in jail if your first reaction is flight rather than fight.
Private citizens have no duty to confront the goblins in our society, but police officers do. This means that the police do not have a duty to retreat, they have a duty to stand their ground. The wall at the National Law Enforcement Officers Memorial in Washington, DC, bears the names of many officers who gave their lives protecting the public by fulfilling the duty to stand their ground.
In Florida you, as a private citizen have a right to stand your ground outside your home. You also have a "right" to act irrationally. There is no wall honoring the myriads of people who died exercising their "right" to act irrationally. Most states impose a duty to retreat before using deadly force. I don't think of it as a duty, I think of it as a privilege. When confronted by danger, you can turn around and run--and spare not only your life, but the lives of your attacker and innocent bystanders.
A karate instructor whose name I forget (I'm doing that more often as I grow older) used to tell his pupils, "When threatened by another, walk away. If he follows you, run. If he chases you, run faster. If he catches you, kill him." I think I can word that last sentence a little better: "If he catches you, use sufficient force to neutralize the threat." It's not only the humane thing to do, it sounds better that way when you're testifying in court.
Monday, April 23, 2012
IF YOU CARRY A CONCEALED FIREARM
TOM TESTOSTERONE: I'm going to get a concealed carry permit. Then I won't have to take any crap off of anybody.
SAM SENSIBLE: No. If you're carrying a concealed firearm, you have to take MORE crap off of everyone.
A self-defense firearm is not meant to be an argument equalizer. It is meant to be a life saver. Self defense is not retaliation, it is the administration of the minimum force necessary to ward off an attack by another. When you carry a concealed firearm, you have on your person a mechanism whereby you can end the life of another human being. Beyond the injury you will cause to that other human being, his friends, and his relatives, you will cause injury to yourself, your friends, and your relatives.
In action-adventure books and movies, it's all over when the bad guy gets killed. In real life, it is just beginning. Having investigated and prosecuted hundreds of homicides, felonious, excusable, justifiable, I have had the opportunity to watch the consequences men suffer after having taken another human being's life. In no particular order, they are:
(1) The guilt. No matter how justified the killing may be, you will suffer guilt.
(2) The interrogations. You will be questioned and re-questioned by various authority figures, and it won't be pleasant. You could always stonewall, take the Fifth, and avoid the interrogations, but you pay a heavy price when you do that. In a later blog I will discuss when you should talk and when you should stonewall.
(3) The prosecution(s). The authorities just might not agree with you about your need to kill. If they don't, get ready to spend some time in jail, some more money on a bondsman, and some more money on a lawyer. Get ready for an extended roller coaster ride and you experience the ups and downs of a criminal prosecution which could last for years. And if you get acquitted, you have not won. You have simply minimized your losses.
(4) The lawsuit(s). Even if you are acquitted, you may very well get sued. Get ready to spend some more money on lawyers, and possibly more money in damages to the estate of the deceased.
(5) The Mark of Cain. Some people will never look at you the same again. They will point you out behind your back. They will whisper about you behind their hands. They will cast disapproving glances at you
I could probably extend the list a little further, but you get the point. If you have a chip on your shoulder, don't put a gun in your pocket. It's a recipe for disaster. If you wind up shooting someone, that chip on your shoulder, those harsh words you spoke, those confrontational actions you took will all be interpreted as mens rea (criminal intent) sufficient to support a charge of unlawful homicide.
Wednesday, April 18, 2012
ON HITTING THE MARK
I believe I have previously mentioned that I sometimes present guest speakers in my law school classes with a copy of one of my books. Bernie Mortenson, a retired FDLE agent, spoke to my class a few weeks ago on a subject at which he is an expert--complex criminal investigations. I gave him a copy of The Last Murder and got the following email back from him:
My response:
Thanks for the kind comments. I'm not sure what you meant about being glad you made the talk before reading the book. I think what you said dovetailed nicely with what I wrote in the book.
Would you mind if I posted your remarks about the book on my blog?
would be happy to have them posted.......................the ref to speaking to the class before reading the book, was that if I had read the book first, it would seem as tho I was simply parroting what you had written. It was most pleasing to see that "great minds do run together"!
I take this exchange as further confirmation that I hit the mark with the audience I primarily intended to reach--lawyers and law enforcement officers in the criminal justice system. I had intended the book to also speak to a larger audience of non-professionals who might be interested in criminal investigations and criminal procedure, Florida history, and historical trials, and I have received some positive feedback from that sort of reader. There are other audiences which might be interested in the subject matter of the book but disappointed with its presentation. Hopefully those belonging to such audiences will be mollified by the knowledge that the work was intended more as a textbook than a tell-all.
Just finished your book last night...............................great writing!! It was even better for me since I knew almost all of the folks involved.
You did a fine job putting all that together.............................that in itself must have been a monster job.
I really enjoyed the group of students last week................they were certainly more engaged than the 1st class (at least I felt that way). Hope I covered all you wanted me too.
I'm going to get in touch with some of the folks in the book and recommend they get it and read it........................no charge:)
talk to you later
PS: I noticed while reading the book I covered some of the procedures you used in putting the case together.........................glad I made the talk before reading it!!
My response:
Thanks for the kind comments. I'm not sure what you meant about being glad you made the talk before reading the book. I think what you said dovetailed nicely with what I wrote in the book.
To which he replied:
would be happy to have them posted.......................the ref to speaking to the class before reading the book, was that if I had read the book first, it would seem as tho I was simply parroting what you had written. It was most pleasing to see that "great minds do run together"!
Thanks again for the book and the opportunity to pass on a few thoughts to future prosecutors.
I take this exchange as further confirmation that I hit the mark with the audience I primarily intended to reach--lawyers and law enforcement officers in the criminal justice system. I had intended the book to also speak to a larger audience of non-professionals who might be interested in criminal investigations and criminal procedure, Florida history, and historical trials, and I have received some positive feedback from that sort of reader. There are other audiences which might be interested in the subject matter of the book but disappointed with its presentation. Hopefully those belonging to such audiences will be mollified by the knowledge that the work was intended more as a textbook than a tell-all.
MEDIA FRENZY
The criminal law faculty at UF is getting swamped with requests for comment on the Trayvon Martin/George Zimmerman case. Hyperlinks to all comments by all professors can be found at
http://www.law.ufl.edu/news/2012/04/17/uf-law-faculty-go-to-sources-in-trayvon-martin-case/.
http://www.law.ufl.edu/news/2012/04/17/uf-law-faculty-go-to-sources-in-trayvon-martin-case/.
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