As science progresses, and our courts become more receptive to it, we learn more and more that many of the ways of the past have failed us and our criminal justice system. It's the promise of getting it right that drives my passion for my profession.

When I tell people I am a criminal defense attorney, often the response is predictable. "How could, you represent those guilty people?" "Why do you represent those guilty people?" While it is true our system usually gets it "right," is "usually" enough? In 1785, Benjamin Franklin, in discussing the building and foundation of our country and Constitution, wrote, "it is better 100 guilty Persons should escape than that one innocent Person should suffer." While a salient observation and point to be made, it was not original to Franklin. The saying actually goes as far back as Abraham in the book of Genesis. Voltaire, in 1749, wrote "that generous Maxim, that 'tis much more Prudence to acquit two Persons, tho' actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent." Sir William Blackstone, in commenting on English Laws, wrote in 1783, "For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer." It was so important, to Franklin, that our new system get it "right" that he expanded Voltaire's two, and Blackstone's ten, to assert that 100 guilty Persons going free is better than one innocent person suffering conviction and punishment. It is why we impose such a high burden...beyond a reasonable doubt...on the government before we convict people of crimes and revoke their liberties. Thomas Jefferson believed it was so important that the government be held accountable to the people that he wrote "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Thus, as a criminal defense attorney, it is my obligation, and privilege, to aid the people in holding their government to the principles of our constitution.

So, in short, or long, that, plus having read numerous John Grisham books, is why I am a criminal defense attorney. While I prefer to be able to prove my clients "innocent," that is not my burden. It is my burden, my job, to make sure the government does its job...prove my client guilty beyond a reasonable doubt. I get a great sense of satisfaction and value from knowing I have done all I can do to make sure innocent people do not get convicted nor have their liberties taken from them and that the government has satisfied its very high burden. 

Fortunately, as science progresses, our chances of "getting it right" also progresses and should lead to more certainty...if we accept and embrace it. We often hear people talk about how things like DNA can prove someone's guilt beyond a reasonable doubt. But, what if we flipped that, DNA can DISprove someone's guilty beyond a reasonable doubt. Sadly, too often, there is resistance from the government to revisit closed cases and convictions or to further examine whether they "got it right." It seems, at times, it becomes more important to get a result than to get it right.

Every-once-in-a-while something comes up, or a case gets publicity, and wrongful convictions briefly get the attention they always deserve. On May 26, 2020, Archie Williams appeared on the reality show "America's Got Talent" and his harrowing story of spending nearly 4 decades in prison for a rape and assault he did not commit. Mr. Williams was convicted of the 1982 crime with little evidence. Fingerprints found at the scene did not match his. He had alibi witnesses. The victim identified a scar in a location that did not match any of Mr. Williams's scars. And, there was no DNA testing. Years later, the Innocence Project took on his case. Within a few hours of testing, using a new and broader database, it was determined the fingerprints belonged to a serial rapist and DNA at the scene was not Mr. Williams. It took numerous fights and a brave judge to force the government to redo the fingerprint analysis and to get DNA testing completed. It's also a tragedy that it took 37 years for a few hours of work to vindicate an innocent man and help him regain his freedom. 

Mr. Williams' case is not nearly as unique as it ought to be. Innocence projects and forensic integrity organizations work throughout the country evaluating cases and doing their best to ensure the integrity of our criminal justice system and the convictions and punishments in metes out. In 2019, the Forensic Justice Project, in Oregon, worked to exonerate Nicholas McGuffin, who served nearly 10 years in prison for causing the death of his then girlfriend. While McGuffin was acquitted of murder, he was convicted of manslaughter. The Forensic Justice Project, after relentless efforts and much resistance, was able to establish the government failed to turn over exculpatory evidence. Years after McGuffin was tried and convicted, a team of lawyers discovered DNA evidence, on a shoe, that freed an innocent man.

It's not just DNA though. Even things like eyewitness testimony, that once were considered the gold standard of criminal law, have proven to be fallible. In 1985, Ronald Cotton was convicted in Greensboro, North Carolina for a rape he did not commit. In 1987, he was given a new trial and in that new trial was convicted of two rapes. The whole case turned on the eyewitness identification of the victim who was certain Cotton was the assailant. The photo lineup conducted in the case was done per the protocol and procedures established by law enforcement. However, as science has progressed, and proven, those procedures were utterly and devastatingly flawed. Finally, in 1995, DNA evidence finally exonerated Cotton, but not before he spent ten years in prison. A suggestive photo lineup led to a rape victim misidentifying her assailant and an innocent man spending ten years in prison for a crime he did not commit.

These three cases are merely examples of the thousands of wrongful conviction cases being reevaluated and hopefully vindicated by lawyers determined to get it right. These cases also demonstrate the incredible consequences and irreversible harms that are created when the system doesn't get it right. I believe it is incumbent upon us as a society, and particularly those of us working in the criminal justice system, always to endeavor to get it right and to heed the wisdom of leaders like Franklin and Jefferson.

I represent those guilty people because not all of those people are in fact guilty. It should not take a reality show performance by men like Archie Williams or news shows like 60 Minutes or 20/20 featuring the stories of men like Nicholas McGuffin and Ronald Cotton to make us cringe at the thought of taking liberty away from innocent people. Our society, and Constitution, is built upon the premise and promise of freedoms and liberties. Our system purports to ensure that those freedoms and liberties are not revoked lightly and without a thorough and robust defense...that the government is held to the principles of our Constitution and the accused proven guilty beyond a reasonable doubt...that is why, and how, I can represent "those guilty people."

 

 

 

Rob Crow
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Licensed to practice law in all State & Federal Courts in Oregon.
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