The state attorney is starting a conviction integrity unit. That’s a good start.
Melissa Nelson, the state attorney for the Fourth Judicial Circuit (Duval, Clay and Nassau counties), just announced that she hired a former criminal defense attorney, not to prosecute people but to exonerate them. I know this sounds like the opposite of her job, but it is actually the most important hire she has ever made. And it is just the beginning of a reform to our criminal justice system that is long overdue.
A study published in the Proceedings of the National Academy of Sciences estimated that 4.1 percent of defendants who are sentenced to death in this country are later shown to be innocent. That is one in 25. And death sentences are far better documented than any other criminal case, making it difficult to estimate the rate of wrongful convictions for those. The entire integrity of our criminal justice system depends on ensuring that innocent people are not wrongfully convicted. In fact, for integrity in the criminal justice system to truly be maintained, the police need to also examine how many people who are ultimately exonerated get arrested. Because once someone is arrested, even if they are innocent, the odds that they escape the system unscathed, are almost none.
First, there is the matter of a bond. While there are notices to appear for some misdemeanors and in some circumstances, people who do not qualify are taken to jail and given a bond. Again, some people may be released on their own recognizance, but many will be given a monetary bond, which means they will have to secure a bondsman and generally pay him or her 10 percent of the bond as a non-refundable fee. This, in and of itself, can run into the thousands.
Additionally, many judges require other forms of security, like alcohol sensors in DUIs, or GPS monitors. These can cost in excess of an extra $300 per month, each month, while the case is pending. And all of this is while the defendant is presumed innocent. If they are acquitted, the arrest itself may have already cost them thousands of dollars, their liberty for at least a day and possibly their employment. Many professions require immediate reporting of arrests for some charges. And spending a night in jail may cause a defendant to miss work without an excuse, which can result in firing.
All of this is before a defendant even sets foot in court. Having been arrested, people charged with misdemeanors are actually given a chance to enter pleas to charges at their first appearance. If they plead no contest or guilty, a defendant is saying he or she wants to end the case at first appearance and the judge can sentence him or her. Many defendants do not know that either no contest or guilty may result in a conviction. If a person has never been in jail or charged with a crime, and he or she is not familiar with the bond system, he or she may choose to plead at first appearance despite being innocent of the charge. If a lawyer has not been hired — an additional expense — no one will have had a chance to look at any of the evidence, to ensure the state can prove the case. Even the public defender in the courtroom will not have had a chance to see all of the evidence in the case.
While it is almost impossible to know how many innocent people plead at their first court appearance, there certainly are a percentage of people who do so in order to get released from jail. While an arrest only requires that the police determine there is probable cause that a crime was committed, and the defendant is the person who committed it — not the reasonable doubt standard that is required for a conviction in court — the stakes of going to jail are tremendous. Our bond system can make it so costly that even innocent people do not escape unscathed.
In a recent Florida Times-Union article, Nelson was cited in a staff email announcing her conviction integrity unit, saying, “We can all agree that no benefit is served by an innocent person being convicted, especially since the alternative is that the guilty person has not been held accountable.” She went on to say that she “cannot think of a greater service [she] could provide another human being than to give a wrongly convicted individual back their liberty.”
Now let us work on not depriving innocent people of their liberty whenever possible. For the first time in Florida, a state attorney may lead the charge to do just that.
Janet Johnson is a criminal defense attorney in Jacksonville who practices in state and federal courts. White collar crimes, including fraud, embezzlement and tax evasion, are among her areas of expertise. She is rated AV Preeminent on attorney rating website Martindale-Hubbell and has been named to the American Institute of Criminal Law Attorneys’ Top 10 Best Attorneys list. Johnson is also a legal analyst for CNN and HLN.
