Lash Back...

Now even though Tom McKenna has basically called me ugly and suggested I have a financial motive for being against the incarceration of the innocent, he's a regular blog reader and commenter and so, because I'm a good guy and don't mind being called ugly even by a guy who looks like this...

Tom 'McKenna' More

I'm going to respond to his recent comment on my attack on Josh Marquis. (previous seething posts here and here)

Our argument centers on the absurd numerology Marquis used in a NYT Op-Ed that argued that the error rate in the justice system was incredibly low (See post below for background).

Tom argues that "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."

Now this is an interesting approach, and one I'm inclined to agree to provided Tom agrees with me that pleas to lesser offenses demonstrate error on the part of the prosecutors, and dismissals (which should then be counted as exonerations) demonstrate errors on the part of both police and prosecutors. Under that metric, the system errs about 80 percent of the time. Of course he won't do this. It's the little straw man to introduce the argument...

Look--if you want to understand how absurd the Marquis/McKenna position is, think of it as a football game. There are many plays on which penalties aren’t called, sometimes rule violations are missed, other times a flag is thrown but after the ref’s huddle it’s determined that there was no infraction. Sometimes there is a call that gets reviewed by instant replay. If you’re looking to figure out how disputed calls were accurate, you look at the number of plays challenged and those that get reversed, you don’t divide the number of reversals by the total number of plays by all teams in an entire season. The reason is simple—and mirrors the criminal justice system—only a small number of plays are contested, just as a small number of cases go to trial. If you want to find out how good the truth-finding function of a trial is, look at the disputed calls, not the total number of plays.

This isn't complicated. What it is, is a concerted effort by prosecutorial zealots to mislead. And that's unfortunate for all of us.


topsixrows said...
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topsixrows said...

Every guilty person that walks should thank the police and Prosecutor for NOT doing their job. That's the only time it ever happens. Nobody runs for office saying, "If I am elected Judge (or whaterver) my number one priority will be to protect the rights of the arrested."

I agree, pleas to lessers should be counted as exonerations.

...then there is that religious quote at the top of his blog - If Jesus would've been a lawyer instead of a carpenter, he most certainly would've been a PD. He walked and ate with thieves while the Scribes rediculed him because they did not understand why.

Tom McKenna said...

It’s a good thing you chose law for a career, and public defending in particular. These occupations thrive on obfuscation and misdirection calculated to divert the “layman” from the truth. This is why in jury cases, the officer or the “system” or the victim ends up being put on trial; this is why the defense bar loves the so-called “exclusionary rule.” Both these things help draw people’s attention away from the truth.

This is the type of “argumentation” you use against Marquis. Recall, his op-ed was responding to a claim by a TV show that “every year thousands of Americans are wrongly convicted.” His op-ed went on to demonstrate how baseless this statement is. In response to this “load of lard” from Marquis, whom you accuse of “whining” and have described in the past as an “asshole” (which puts in some context the tenor of this “conversation”), you make some incomprehensible statement about comparing the number of exonerations to the number of cases handled by the Innocence Project. How that yields any results you cannot state.

Next you complain that guilty pleas should not “count” because they are not contested, and only contested trials should be looked at to decide the ratio of wrongful convictions to number of prosecutions. This is inane for several reasons. First, it is changing the topic of Marquis’ original point from whether there are “thousands” of people wrongfully convicted every year (and guilty defendants are “convicted”) to how many people in contested trials are exonerated.

Second, you totally ignore Josh’s main argument, which is that accepting a law professor’s study numbers of “exonerations”—then multiplying that number by ten! – one still would find an error rate of less than one percent of all convictions. You want to focus only on the error rate of the much smaller subset of convictions which arise from contested cases and claim not guilty findings and even lesser-included findings as “exonerations.” At best, your argument might show that many people are wrongfully charged; if they're found not guilty they are not wrongfully convicted, so they don't even factor into this argument which is about wrongful convictions.The fact that people are acquitted has nothing to do with Josh’s point that the claim that thousands of people every year are wrongfully convicted is baloney.

If you want to find out whether our system is accurately identifying and incarcerating the guilty, you look at the total number of convictions and then the number of exonerations and compare the two numbers. That’s what Josh did (exaggerating to a factor of ten the number of exonerations), the results speak for themselves, and all the obfuscation and name-calling won’t change the solid facts.

The fundamental conclusion Marquis draws is solid: there is no systemic “problem” of rampant incarceration of factually innocent people; any more than there is a “problem” of innocent people being executed, despite the fervent wish of the defense bar that it was otherwise.

Keep trying, though...but try not to let your ideological harness choke off the oxygen to your brain.

Anonymous said...

I think you are both zealots, but McKenna works for the government and has the power of the state behind him. He is the dangerous one here. I've been threatened by the police. I've seen their misconduct and I've seen prosecutors collude with them. In Virginia. McKenna is simply vile.

Anonymous said...

Also posted on Mr. McKenna's blog:

1 innocent person killed by the state is too many.
1 innocent person who loses 1 day of freedom has lost too much; has lost something that no amount of money or time can ever repair.

And the same may often be said of crime victims – but victims of crime know they were wronged by a deviant person, and society will ever sympathize and aid them in their recovery.

A victim of the power of the state can never be vindicated – because the wrong done to such a person is justified. It is tautological – the justice system is just by definition; and those who claim it is otherwise (defenders) are ridiculed and discredited by those who seek to persecute (prosecutors) in a frenzy of sadistic hubris. The victim of the state has no refuge, except to challenge the state itself.

The person who wronged another with a crime is a demon. The state that wronged so many will always be the state, the prosecutor, the stalwart defender of justice. The person who illegally wounds another will face punishment and censure. The state that wounds its own citizens will receive praise for being “tough on crime”. A criminal is ostracized. The state is revered.

Mr. McKenna and others may argue their position with statistics, but ultimately the argument is philosophical -- and one's vein of philosophical belief necessarily informs her analysis of the numbers.

We are left with assessing our philosophical, social, and legal priorities: when in conflict, is it better to convict the innocent or free the guilty? Mr. McKenna refuses the premise of this discussion by denying any culpability for wrongful convictions; he therefore hurls insults and catch phrases – logical fallacies in lieu of actual logic.

If one truly believes in the presumption of innocence and the necessity of accurate prosecutions, then numbers are irrelevant. (Numbers just make it more tangible.) No numbers could convince Mr. McKenna of anything – he is firmly convinced that “there is no systemic ‘problem’ of rampant incarceration of factually innocent people; any more than there is a ‘problem’ of innocent people being executed, despite the fervent wish of the defense bar that it was otherwise.” Systemic problem or not – I must repeat my original statement that 1 innocent person, killed by the hands of the state, is 1 too many.

Let us assume a legal system predicated on the idea that the power of the state is vast and the cost of liberty immeasurably high. That system must protect the rights of the accused at every turn. (By the way, that is our legal system, as it was originally written and before it has eroded into technicalities of police procedure and prosecutorial discretion – if some prosecutors had their way, we could go back to trial by fire or better yet, throw the witch in the river and see if she floats….but I digress)

Prosecutors like Mr. McKenna refuse to see the awesome power and the correspondingly awesome responsibility they wield. They are loathe to admit that wrongful prosecutions and convictions occur – and if they do admit that, the response is ever...'that is the price you pay to reduce crime'. Some prosecutors go so far as to argue that the state has a vested interest in ceasing support for post-conviction DNA analysis to challenge allegedly wrongful verdicts and life altering sentences. I am curious as to whether Mr. McKenna has a position on DNA testing in post-conviction appeals.

My question to Mr. McKenna and those who agree is this: why not eliminate wrongful convictions? Why not make that a priority? Why not even entertain the possibility that a prosecutor or a judge or a police office or a jury MADE A MISTAKE??? Why not admit that mistakes happen and they are dreadful, and then promise to do your best not to make such mistakes in the future? Is it just not important enough to you, ensuring that you always prosecute the right person? And why use such venom in attacking Mr. Feige for the suggestion that there are many innocent people in custody and that prosecutors are (*gasp) human beings with human failings??

Perhaps, as many of your cohorts say to my clients, your overly exuberant denial is a great indicator of your guilt (i.e. methinks the lady doth protest too much).

Put it another way – I think you just do not care all that much if innocent people are in jail.

Mr. McKenna to Mr. Feige: “It’s a good thing you chose law for a career, and public defending in particular. These occupations thrive on obfuscation and misdirection calculated to divert the “layman” from the truth.”

It seems as if fact that Mr. Feige does care about the innocent annoys you because it forces you to think about your own pathetic existence as one who so thrives on the adulation of society that a legitimate and weighty criticism sends you into this defensive, bile spitting position like that of a deranged rodent.

Mr. McKenna is petty and petulant with his ad hominem attacks, which are not only silly but incorrect.
(And as an aside, Mr. Feige is not pretty. He is strikingly beautiful – tall, dark, and handsome comes to mind.)