Shame on Josh Marquis

I'm back after a lovely west coast swing, and finally able to devote a few minutes to debunking the latest load of lard dished by our favorite prosecutorial shill Josh Marquis.

No innocence Marquis

You'll all remember his recent Op-Ed in which he whined about how awful it is that people are concerned about the wrongfully convicted, arguing that "Americans should be far more worried about the wrongfully freed than the wrongfully convicted." Nice.

Leaving aside the classically republican rhetorical slight of hand by which he cases prosecutors (the ones with all the guns, cops and political power) as underdogs, the essence of his argument is laid out in this twisted bit of numerology which somehow escaped the usually clear thinking folks at the times.

He writes: "To start, only 14 Americans who were once on death row have been exonerated by DNA evidence alone. The hordes of Americans wrongfully convicted exist primarily on Planet Hollywood. In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.

This is among the most absurd argument the times has ever published. It's essentially tautological--in that it takes as it's premise that a study of exonerations is somehow equivalent to the number of wrongly convicted people. If you want a higher error rate compare the number of people exonerated with the number of cases the innocence project took and poured time into. Or perhaps compare the number of people put to death in Illinois to the number exonerated (then we're looking at an error rate of 50 percent) I'm not actually suggesting that half the people in prison are innocent, but rather in a glib way, showing how the grotesque manipulation of data can yield nonsensical results. And the ones Mr. Marquis invents are nonsensical.

There's another reason his "calculations" are stupid and misleading. He wants to count all felony convictions, not those in which someone was convicted at trial. Most people in the system acknowledge their guilt and cop a plea. Getting a sense of how well the system works requires tossing those results. Do that and by a conservative estimate Mr. Marquis's vaunted error rate shoots up to over one in 10--the kind of failure rate that would actually get any product recalled and the manufacturer sued.


Tom McKenna said...

Nice try, but you haven't dented his argument. It would be more misleading to focus on one state like Illinois than on the broader statistics Marquis uses.

Moreover, guilty pleas should be part of the equation, since the question is how well does our system identify and convict the guilty. Guilty pleas are part and parcel of showing that the system works in that the police found the correct perpetrator, the prosecutor charged him with the correct offense, and the defense attorney and the client reached a conclusion that a guilty plea was in the client's best interest.

Besides, you have often argued that guilty pleas are often taken by people despite their factual innocence. You should, to be consistent, provide us with those numbers to support your assertion.

No, Marquis' point remains: the left cannot show that there is a systemic problem with convictions in this country. Indeed, given that the burden of proof in criminal cases is "beyond a reasonable doubt," we have made the choice that there will be some error rate. That it is so small is a testament to the functionality of the system.

I know it undercuts the premise of your book and that you therefore have a vested, finacial interest in hoping it is otherwise, but the known facts do not support your hysterical assertions.

Indefensible said...

I'll respond to the critique in the blog proper, but as for the personal attack, if that's what you think, I'm afraid you don't know much about the world of publishing. If I sought to reach only those who agreed with me, my audience would be limited indeed.

So how about you read the book first before making pronouncements about it's premise or my financial interests?

Anonymous said...

Because he does not operate in good faith, that is why.