Category Archives: Philosophy of Criminal Justice

Filming Police

New technology has dramatically increased the availability of digital video for law enforcement.  The news is filled with information about the government’s increasing surveillance of the population, through the increased use of cameras in public places, audio equipment to record conversations, and warrantless searches of cell phones.  Police agencies nationwide are even working to acquire “drones” to amplify their surveillance abilities.

As hungry as the government is to use these new technologies to watch and listen to citizens, law enforcement has fought public demands for greater transparency via audio and video technology.  In 2007, the California legislature passed a bill aimed at preventing false confessions (identified as present in 30% of DNA exonerations by the Innocence Project).  It would have required police to record all statements from suspects in cases of violent crimes. Considering the ubiquity of recording devices, one would think this was a simple request. However, law enforcement opposed the bill and Governor Schwarzenegger vetoed the legislation.

Due to pressure from law enforcement, some states prohibit filming police while performing their duties.  It is difficult to see the rationale for such laws, other than protecting officers who engage in wrongdoing.  In California, it is legal to film police, with some caveats.  First, stay out of their way.  If a person taking video is very close to the police, or blocking police in some way, that individual will be charged with interfering with a police officer.  If you are filming an officer and he complains that your actions are interfering with him, just back up and put some space between yourself and the situation (but keep recording because there is probably a reason don’t want you to!).  Second, the recording should be conducted openly.  There are some rather ambiguous “wiretapping” laws that make secret recordings illegal if the party being recorded is unaware. As long as it is obvious and clear to the officer that you are recording, the recording should be considered legal.

The filming of officers is having a positive effect.  Filming by the public and increased use of cameras in patrol vehicles and police stations has exposed thousands of instances of police wrongdoing.  A search for “police brutality” on yielded “about 305,000 results”.  There is no doubt that starring in such a video is a career ending move for bad cops nationwide.

From the police perspective, they, too should want video evidence. What better evidence that a confession is not coerced or involuntary than a recording of that statement? And consider if an officer is accused of excessive force or abuse of authority, a video of an incident could save an officer’s career under these circumstances.  A video or audio recording of an entire incident (not just selective recording) usually leaves no question as to what occurred during a confrontation. While we should be wary of over-surveillance of innocent citizens, police and the public alike should support a policy favoring transparency.

Jury Nullification

“It is not only [a juror’s] right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

– John Adams, Founding Father and second President of the United States

Jury nullification refers to the power a jury has to find a defendant “not guilty” even where the the evidence presented would support a verdict of “guilty” under the law.  Supporters of jury nullification view the role of a juror broadly, as judge of both the law and the facts, and of the morality of prosecuting that particular crime in that community.  Accordingly, if a juror finds the law unjust, or unjust as applied to a particular case, the juror may acquit the defendant.

Jury nullification, despite its mixed reputation in modern times, has a long and noble history.  In the Colonial Era, juries frequently acquitted those accused of speaking against the king or who engaged in unlawful assembly.  In the days leading up to the Civil War, northern juries would often acquit defendants accused of helping runaway slaves, even where evidence of guilt was clear.  Juries frequently acquitted defendants facing alcohol-related charges in the prohibition era.  In more recent times, juries have nullified on cases involving trumped up charges on political protesters and drug charges, such as possession of medicinal marijuana.

At the time of the founding of the country, the principle of jury nullification was firmly rooted in the jury trial process. Toward the end of the 19th Century the courts started to reign in the rights of attorneys to argue for jury nullification.  It also became illegal for courts to instruct juries about their right to make an independent moral judgment as to the inherent justice of a conviction.  Prosecutors sought to reduce the role of the jury to simply finding facts and disregarding the morality of their decision.  In our courts now, prosecutors expressly tell jurors that there is no moral aspect to their role and encourage jurors to find defendants guilty even where the juror is morally uncomfortable with a conviction.  Jurors are also told to not consider what kind of sentence or punishment the defendant might receive, even though punishment is the core mission of our justice system.

Over the last several years, there has been growing interest in restoring the right of a jury to exercise its independent moral judgment of both the law and the facts.   Critics see the role of the jury as a crucial check on government power. The removal of this power has resulted in consolidated power in government prosecutors and has extinguished moral judgment from decision making. Constitutional scholars who have advocated an “originalist” perspective on the Constitution and Bill of Rights (that is, trying to understand and enforce those documents from the viewpoint of the men who wrote them) see the attempts by the courts and prosecution to restrict the role of the jury as an illegal and unauthorized power grab. When jurors lose the power to use independent moral judgment, it can lead to immoral and unjust results in some cases.

As the law stands now in California, the jury always retains the power to acquit, and the constitution still protects an individual against “double jeopardy” so nobody can be retried after a jury has acquitted.  However, no judge may instruct a jury as to its inherent power to acquit based on an independent moral judgment of the case.  And defense attorneys are not permitted to argue for nullification.

Wrongful Convictions

This article on wrongful convictions was published in the November issue of the La Quinta Gem, a local newspaper:

“Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” – Judge Learned Hand, 1923 (United States v. Garrison, 291 F. 646). Unfortunately, that dream is all too real for too many.

It had long been assumed that our justice system always gets the right result.  The fact that the system has a certain “error rate” was exposed with the advent of DNA testing in the 1990s.  Defense attorneys and journalists starting looking into criminal convictions where the results seemed suspect.  This provided a window into the criminal “justice” system by presenting a new way to review old cases and test the accuracy of the jury verdicts.  At present, DNA exonerations have turned into a nonprofit mini-industry, with the result being several hundred exonerations.  Innocence projects across the country have also started looking into other areas of wrongful convictions.  The University of Michigan Law School maintains a National Registry of Exonerations, which currently lists 1,220 exonerations.

Notably, most exonerations involve death penalty cases, other homicides and serious sexual assault cases.  The nature of exoneration work necessarily involves these types of cases.  The work is very time consuming and the cases will typically take years to investigate and then litigate through the court system.  The vast majority of people convicted of crimes would have completed their probation or prison terms before a challenge to a lower-level criminal conviction would wind through the courts.  Also, there is no right to an appointed attorney after direct appeals in lower-level cases, and the non-profit groups that do this kind of work can only take a small percentage of the cases referred to them, so they will start with the most serious cases and only take cases where there is some scientific evidence, such as DNA, to be tested. Others are likely out of luck.  Accordingly, these 1,220 cases on the registry almost certainly represent only the smallest tip of an enormous iceberg of wrongful convictions, each of which represents an innocent person wrongfully convicted and imprisoned.

Because the exonerations that have received the attention of the innocence projects arise from only that narrow category of cases where an individual is serving life in prison and where there is actual scientific evidence to test, we will never know how many individuals have been wrongly convicted in those lower level cases that never receive this level of scrutiny.  These non-homicide, non-sex cases certainly represent well over 90% of the cases in the system.

Groups have studied the reasons that innocent individuals are convicted, and one of the most significant reasons is that their counsel was ineffective, incompetent or overburdened.  Those attorneys appointed to handle these high level cases are expected to be the attorneys most capable, yet oftentimes resources are too slim or incompetent lawyers are not properly supervised, and innocent people are convicted because their attorney did not investigate, consult experts, or simply was not capable of handling their case.  So these substantial problems of reliability at the most serious and elite levels of the justice system leave serious questions about the reliability of the system to get things right in less conspicuous cases.

The best way for a person accused of a crime to avoid a wrongful conviction is to hire a good criminal defense attorney.  There is no safety net in the system, so you need the tools necessary to get through, which only begins with a good attorney.

Forest Wilkerson is a partner at Wilkerson & Mulligan, a criminal defense law firm located in Old Town La Quinta.  She handles felony and misdemeanor cases, and will take cases from pre-arrest through appeal.  For more information call her at 760-777-4322 or visit her website at

Forensic Scientist Claims to Map Bigfoot Genome


DNA testing is almost certainly the forensic evidence most trusted by jurors and most feared by defense attorneys.  Unlike the majority of forensic tests and “science” presented in criminal trials, DNA is real science and is spot-on accurate when done properly.  But DNA testing is no simple thing, and the results will only be as good as the forensic scientist doing the test.

So I found it both amusing and bit scary when I read about forensic scientist Dr. Melba Ketchum’s claim to have sequenced the Sasquatch (Bigfoot) genome.  I thought her claim to be a real expert witness was a bit dubious, but she was named as a DNA expert in a published sexual assault case.

A simple google search reveals that an army of debunkers have examined her results and technique and come to the simple conclusion that she really doesn’t know what she is doing.  For example, there was a long a sophisticated discussion about the problems in her technique on arstechnica.  Sadly, Dr. Ketchum’s Bigfoot work has probably received far more scrutiny than any of her more mundane work testifying as a DNA expert  . . .

You have the right to an attorney….(a broken promise)

Today, March 18, commemorates 50 years since the United States Supreme Court in Gideon v. Wainwright determined, for the first time, that poor defendants have a right to an attorney in criminal cases. And while most people waive flags and scream about any violation of Second Amendment guarantees, few recognize and fight for Americans’ rights regarding the Sixth Amendment Right to Counsel.

As a background, Clarence Earl Gideon was an uneducated, unsophisticated, poor and homeless man who had grown up without his father. He began getting in trouble as a young boy and eventually was charged with burglary and theft from a pool hall where they alleged he stole a few bottles of beer. As a stroke of luck, Mr. Gideon asked for an attorney for his trial and was denied by the judge who reminded him that only death penalty defendants were entitled to counsel. Mr. Gideon was outmanned and outgunned and lost his trial easily against an experienced prosecutor. The judge sentenced him to the maximum penalty : 5 years in prison.

Mr. Gideon spent his time in prison researching whether he actually had the right to an attorney for his case, and he determined that he did indeed. He hand-wrote, in pencil, a letter to the Supreme Court (after Florida Courts had refused to hear his case) and the Supreme Court decided to review his case. The Court appointed prominent attorney, and later Supreme Court Justice, Abe Fortas to argue Mr. Gideon’s side. In a landmark 9-0 ruling, the Court determined not only did Mr. Gideon have the right to an attorney, but that the States had to provide attorneys for poor defendants.

As a result of the decision, 2000 inmates in Florida alone were freed. Mr. Gideon was not. The State of Florida sought to re-try Mr. Gideon and, with the help of his new attorney, Mr. Gideon was found NOT guilty.

Mr. Gideon’s acquittal at re-trial speaks volumes about the necessity for an attorney. Yet, if you run a simple google search about Gideon’s amazing promise to protect our Constitutional rights, the search results will discuss the failure of this promise. Public defenders are saddled with more cases than any attorney could handle. As a recent attorney at the Riverside County public defender office in Indio, I know this issue firsthand. As a felony trial attorney, I had more cases than I could reasonably take to trial in 4 years, even while I had cases carrying the potential result of life in prison without parole. During my time at the office, felony preliminary hearing attorneys had caseloads ranging from 60-120 at a time. These attorneys spend a majority of their time in court waiting for their cases to be called and have little time to investigate, research the law, or meet with their clients. Misdemeanor attorneys have caseloads ranging from 120-200 cases at a time. That’s 120 people to meet with,120 investigation requests to write, 120 discovery requests to submit, witnesses to interview, etc., etc….and they are assigned new cases every day. With these sheer numbers, it’s easy to see why even the most dedicated, intelligent, and hard-working public defender might not be able to do as much as they would like on a case.

This is the story at public defender offices across the country. To be fair, California has come a long way in providing the resources for indigent defense, but as you can judge by the numbers above, it’s still not enough. And other state public defender offices are even more overwhelmed.

As you read this, you may be asking why you should care about this issue. First, consider that in Riverside County alone over a year (this is a few years back), the Prosecution had a guilty verdict rate on all charges of around 45% in the cases tried that year (this is from memory and taken from a local judge’s statistics). That means that 55% of people were judged to have been wrongfully held in jail, had their freedom denied, lost their jobs, and spent a lot of time fighting unjust charges. That wrongfully accused person could be you. Remember Mr. Gideon? He was only guilty of leaving a pool hall at the wrong time.

Second, attorneys keep the police in check. Do you know if you were legally stopped? You might question the validity of the police stopping and searching you, or of the police busting down your door and searching your house, but do you truly know if the stop was legal? Do you know how to find out? A good attorney will know almost at first glance if the stop or search was valid. A good attorney will further know how to suppress the evidence or statements that you gave due to the unlawful stop or search. In my practice, I have been told by police officers multiple times after questioning them that they will never do a practice again because I had evidence or statements thrown out of court. Good attorneys change the way the police treat you – for the better.

Finally, attorneys may be the only one on your side. Many clients have told me that I am the only person who believed in their innocence and fought for them. The prosecution is always well-funded and has the benefit of the local police, the sheriff’s department, their own investigators, the Department of Justice, and sometimes even the FBI and ICE to aid them. Add these overwhelming resources to the judge in your case, who most likely recently left the prosecutor’s office, and the jurors who stare at you and overwhelmingly believe that if you’re sitting in that defendant’s chair, “you must have done something.” Can you imagine the weight of all this on you, an innocent man or woman? Your attorney is the only thing that stands between you and this overwhelming show of governmental power. It can happen to you. Believe me.

I get teary whenever I read any individual story of a man exonerated after being wrongfully convicted (over 200 individuals from death row alone!). Let’s just hope that people begin to take the 6th Amendment as seriously as the 2nd and finally fulfill Gideon’s broken promise.

Overflowing Jails, Police Budget Cuts, and Declining Crime Rates

The Desert Sun recently did a long article that essentially provided various desert police departments a forum to whine about scaling back and budget cuts during recent years of recession and overall scaling back of government services.  Of course, there was almost no discussion of the value that police are providing for our tax dollars.  The fact that the crime rate continues to fall was briefly discussed and quickly dismissed.  The important message, as usual, is that unless public safety starts getting much more of our tax dollars, we will all be subject to an unbearable and horrific crime wave.  Is this fear-mongering?

Anyway, the crime rate is still falling (locally and nationwide), despite the horrible recession, decline prison populations, and declining police “protection”.  None of the smart people in charge of thinking about these things really knows why – check out discussions of this topic here and here.  This article even links inflation and crime rates!

And despite the misleading commentary in this “investigative” piece, even in this new (supposedly more dangerous) environment of reduced policing, law enforcement is not among the 10 most dangerous jobs. 

Pettit on the Prison Population, Survey Data and African-American Progress

I just listened to an excellent podcast:

Becky Pettit of the University of Washington and author of Invisible Men talks with EconTalk host Russ Roberts about the growth of the prison population in the United States in recent decades. Pettit describes the magnitude of the increase particularly among demographic groups. She then discusses the implications of this increase for interpreting social statistics. Because the prison population isn’t included in the main government surveys used by social scientists, data drawn from those surveys can be misleading as to what is actually happening among demographic groups, particularly the African-American population.

Everybody basically expects to see statistical racism in the “justice” system, but some of the stats Pettit presents are still shocking – a young black high school drop-out is more likely to be imprisoned than employed!

Pettits ultimate conclusion is more chilling – prison inmates are typically uncounted in statistics measuring things like health, income, employment, etc.  The fact that so many young black men are imprisoned radically skews the statistics measuring the well-being of this demographic.

Aura of Legality

February, 1970


And that is the terrible myth of organized society, that everything that’s done through the established system is legal — and that word has a powerful psychological impact. It makes people believe that there is an order to life, and an order to a system, and that a person that goes through this order and is convicted, has gotten all that is due him. And therefore society can turn its conscience off, and look to other things and other times.

And that’s the terrible thing about these past trials, is that they have this aura of legitimacy, this aura of legality. I suspect that better men than the world has known and more of them, have gone to their deaths through a legal system than through all the illegalities in the history of man.

Six million people in Europe during the Third Reich? Legal.

Sacco Vanzetti? Quite legal.

The Haymarket defendants? Legal.

The hundreds of rape trials throughout the South where black men were condemned to death? All legal.

Jesus? Legal.

Socrates? Legal.

And that is the kaleidoscopic nature of what we live through here and in other places. Because all tyrants learn that it is far better to do this thing through some semblance of legality than to do it without that pretense.