CHAPTER5 THE CRIMINAL COURT PROCESS

A jury forewoman reads the verdict in court. The Sixth Amendment of the Constitution guarantees Americans the right to an impartial jury. 92 OUTLINE OF THE U.S. LEGAL SYSTEM

The criminal process begins when a few consist of sins of , such as law is first broken and extends failing to stop and render aid after a through the arrest, indictment, trial, traffic accident or failing to file an in- and appeal. There is no single crimi- come tax return. The state considers nal, or civil, court process in the some serious, such as United States. Instead, the federal and , and this seriousness is re- system has a court process at the flected in the corresponding punish- national level, and each state and terri- ments, such as life imprisonment or tory has its own set of rules and regu- the death penalty. The state considers lations that affect the judicial process. others crimes only mildly reprehensi- Norms and similarities do exist among ble, such as double parking or disturb- all of these governmental entities, ing the peace, and consequently and the discussion will focus primarily punishments of a light fine or a night on these, but no two states have iden- in the local jail are akin to an official tical judicial systems and no state’s sys- slap on the wrist. tem is identical to that of the national Some crimes, such as kidnapping government. or rape, constitute actions that virtual- ly all citizens consider outside the THE NATURE AND sphere of acceptable human conduct, SUBSTANCE OF whereas other crimes constitute ac- n act is not automatically a tions about which opinion would be crime because it is hurtful or divided. For example, an 1897 Michi- Asinful. An action constitutes a gan statute makes it illegal to curse in true crime only if it specifically vio- front of a child, and a Nebraska law lates a criminal statute duly enacted by forbids bingo games at church sup- Congress, a state legislature, or some pers. Other criminal statutes are plain- other public authority. A crime, then, ly silly: In Wisconsin it is illegal to sing is an offense against the state punish- in a bar, and in Louisiana it is forbid- able by fine, imprisonment, or death. den to appear drunk at a meeting of a A crime is a violation of obligations literary . due the community as a whole and The most serious crimes in the can be punished only by the state. The United States are felonies. In a majori- sanctions of imprisonment and death ty of the states a felony is any offense cannot be imposed by a civil court or for which the penalty may be death (in in a civil action (although a fine may states that allow it) or imprisonment be a civil or a criminal penalty). in the penitentiary (a federal or state In the United States most crimes ); all other offenses are misde- constitute sins of commission, such as meanors or infractions. In other states, aggravated or embezzlement; a and under federal law, a felony is an CHAPTER 5: THE CRIMINAL COURT PROCESS 93

offense for which the penalty may be often go hand in glove. For example, death or imprisonment for a year or the thief who breaks into a house and more. Thus, felonies are distinguished inadvertently confronts a resistant in some states according to the place owner may harm the owner and thus where the punishment occurs; in some be involved in more than just the states and according to the federal property crime of burglary. government, the length of the sentence The less numerous, but more is the key factor. Examples of felonies feared, conventional crimes are those include murder, forcible rape, and against the person. These crimes of armed robbery. violence include murder and nonneg- Misdemeanors are regarded as petty ligent manslaughter, forcible rape, crimes by the state, and their punish- robbery, and aggravated assault. ment usually consists of confinement in a city or county jail for less than a Economic Crimes year. Public drunkenness, small-time There are four broad categories of eco- gambling, and vagrancy are common nomic crimes: examples of misdemeanor offenses. • Personal crimes consist of nonviolent Some states have a third category of criminal activity that one person offense known as infractions. Often inflicts on another with the hope of they include minor traffic offenses, monetary gain. Examples include such as parking violations, and the intentionally writing a bad check, penalty is usually a small fine. Fines cheating on one’s income tax, and may also be part of the penalty for committing welfare fraud. misdemeanors and felonies. • Abuse of trust occurs when business or government employees violate CATEGORIES OF CRIME their fidelity to their employer or ive broad categories that com- clients and engage in practices such prise the primary criminal of- as commercial bribery, theft and Ffenses in the United States today embezzlement from the workplace, are conventional, economic, syndicat- and filling out false expense accounts. ed, political, and consensual. • Business crimes are crimes that are not part of the central purpose of the Conventional Crimes business enterprise but are incidental Property crimes make up the lion’s to (or in furtherance of) it. Mis- share of the 31.3 million conventional leading advertising, violations of the crimes committed annually in the antitrust laws, and false depreciation United States. Property crimes are dis- figures computed for corporate tinguished by the government from income tax purposes are all crimes of violence, although the two business crimes. 94 OUTLINE OF THE U.S. LEGAL SYSTEM

• Con games are white-collar criminal Consensual Crimes activities committed under the guise So-called , such as of a business. prostitution, gambling, illegal drug use, and unlawful sexual practices be- Syndicated, or Organized, Crimes tween consenting adults, is called con- Syndicated crime is engaged in by sensual because both perpetrator and groups of people and is often directed client desire the forbidden activity. on some type of hierarchical basis. It represents an ongoing activity that is ELEMENTS OF A CRIME inexorably entwined with fear and very crime has several distinct corruption. tends to elements, and unless the state is focus on areas that are particularly Eable to demonstrate in court the lucrative, such as trafficking in illegal existence of these essential elements drugs, gambling, prostitution, and there can be no conviction. Although loan-sharking (money-lending at ex- the judicial process in the courtroom orbitant interest rates and high repay- may not focus separately and distinct- ment rates). ly on each of these elements, they are at least implicit throughout the entire Political Crimes usually con- stitutes an offense against the government: treason, armed rebellion, assassina- tion of public officials, and sedition. However, the term has come to include crimes committed by the govern- ment against individual cit- izens, dissident groups, and foreign governments or na- tionals — for example, ille- gal wiretaps conducted by the government of politi- Syndicated crime is one of five broad categories that cally dissident groups or comprise the primary criminal offenses in the United the refusal of the military States today. At this June 20, 2002, press conference, U.S. Attorney General for the Southern District of New York to investigate incidents of James Comey, left, and Kevin Donovan, right, assistant sexual harassment. director of the New York FBI field office, announce the indictment of 14 alleged members of the Gambino organized crime family in New York. CHAPTER 5: THE CRIMINAL COURT PROCESS 95

process of duly convicting someone assault and battery), or it may be the of a criminal offense. failure to perform an action that is required (for instance, a person’s A Law Defining the Crime and the refusal to stop and render aid to a Punishment motor vehicle accident victim). If an act is to be prohibited or re- quired by the law, a duly constituted The Mens Rea authority (usually Congress or a state The “mens rea” (a Latin term) is the legislature) must properly spell out essential mental element of the crime. the matter so that the citizenry can The U.S. legal system has always made know in advance what conduct is pro- a distinction between harm that was hibited or required. Lawmakers must caused intentionally and harm that also set forth the penalties to be im- was caused by simple negligence or posed upon the individual who en- accident. Thus, if one person takes gages in the harmful conduct. the life of another, the state does not There are several corollaries to this always call it murder. If the killing general principle. One is that the U.S. was done with malice aforethought by Constitution forbids criminal laws that a sane individual, it will likely be are ex post facto, that is, laws that de- termed “murder in the first degree.” clare certain conduct to be illegal after But if the killing occurred in the the conduct takes place. Likewise, the passion of a barroom brawl, it would state may not pass bills of attainder, more likely be called “second-degree which are laws that single out a partic- murder,” which carries a lesser penal- ular person or group of persons and ty. Reckless driving on the highway declare that something is criminal for that results in the death of another them but legal for everyone else. A final would correspondingly be considered corollary is that a law defining a crime “negligent homicide” — a wrong, to must be precise so that the average be sure, but not as serious in the eyes person can determine in advance what of the state as the intentional killing conduct is prohibited or required. of another.

The Actus Reus An Injury or Result “Actus reus” is the Latin phrase mean- A crime consists of a specific injury or ing the criminal action committed by a wrong perpetrated by one person the accused that gives rise to the legal against another. The crime may harm prosecution. The actus reus is the society at large, such as selling military material element of the crime. This secrets to a foreign government, or the element may be the commission of an injury may be inflicted upon an indi- action that is forbidden (for instance, vidual and, because of its nature, is 96 OUTLINE OF THE U.S. LEGAL SYSTEM

considered to offend society as a A Causal Relationship Between the whole. The nature of the injury, as Action and the Resultant Injury with the mens rea, often determines Before there can be a conviction for a the nature of the crime itself. For criminal offense, the state must prove example, consider two drivers who that the accused, acting in a natural have been cutting each other off in and continuous sequence, produced traffic. Finally they both stop their the harmful situation. Usually proving cars and come out fighting. Suppose a causal relationship is not difficult. If one of them hits the other so hard he “Bill” stabs “John” with a knife and in- dies. The crime may be murder (of flicts a minor wound, there is no some degree). If the man does not die doubt that Bill is guilty of assault with but suffers serious bodily harm, the a deadly weapon. But what if John crime is aggravated assault. If the does not obtain proper medical care injury is minor, the charge may be for the wound, develops an infection, simple assault. Because the nature of and subsequently dies? Is Bill now the injury often determines the of- guilty of manslaughter or murder? Or fense, it is frequently asserted that the what if after being stabbed, John nature of the injury is the key legal stumbles across a third party and element of the crime. causes injury to her? Is Bill to blame Some actions may be criminal even for this, too? though no injury is actually inflicted. Resolution of questions such as Most crimes of criminal conspiracy these are often difficult for judges and fall into this category. For instance, if juries. The law requires that all cir- several persons were to plan to assassi- cumstances be taken into account. nate a judge or to bribe jurors in an at- The accused can be convicted only if tempt to keep a criminal from being the state can prove that his or her con- convicted, the crime would be con- duct is the direct, immediate, or deter- spiracy to obstruct . This would mining cause of the resultant harm to be a crime even if the judge went un- the victim. harmed and no money was ever passed to the jurors. All that is re- PROCEDURES BEFORE A quired is that the crime be planned CRIMINAL TRIAL and intended and that some specific, efore a criminal trial can be overt act be taken by one of the con- held, federal and state laws re- spirators in furtherance of their plan Bquire a series of procedures and (such as the purchase of a weapon or events. Some of these stages are man- possession of a map of the route that dated by the U.S. Constitution and the judge takes between his home and state constitutions, some by court de- the courtroom). cisions, and others by legislative en- CHAPTER 5: THE CRIMINAL COURT PROCESS 97

actments. Custom and tradition often or clear-cut, and police officials pos- account for the rest. Although the exact sess — and exercise — wide discretion nature of these procedural events varies about whether to take someone into from federal to state practice — and custody. Sufficient resources are sim- from one state to another — there are ply not available to the police for them similarities throughout the country. to proceed against all activities that These procedures, however, are not as Congress and the legislatures have for- automatic or routine as they might ap- bidden. Consequently, discretion must pear; rather, the judicial system’s deci- be exercised in determining how to al- sion makers exercise discretion at all locate the time and resources that do stages according to their values, atti- exist. Police discretion is at a maxi- tudes, and views of the world. mum in several areas.

The Arrest Trivial Offenses. Many police manuals The arrest is the first substantial con- advise their officers that when minor tact between the state and the accused. violations of the law are concerned, The U.S. legal system provides for two a warning is a more appropriate basic types of arrest — those with a response than an arrest. Traffic viola- warrant and those without. A warrant tions, misconduct by juveniles, drunk- is issued after a complaint, filed by one enness, gambling, and vagrancy all person against another, has been pre- constitute less serious crimes and en- sented and reviewed by a magistrate tail judgment calls by police. who has found probable cause for the arrest. Arrests without a warrant occur Victim Will Not Seek Prosecution. when a crime is committed in the Nonenforcement of the law is also the presence of a police officer or when an rule in situations where the victim of a officer has probable cause to believe crime will not cooperate with the po- that someone has committed (or is lice in prosecuting a case. In the in- about to commit) a crime. Such a be- stance of minor property crimes, for lief must later be established in a example, the victim is often satisfied if sworn statement or testimony. In the restitution occurs and the victim can- United States up to 95 percent of all not afford the time to testify in court. arrests are made without a warrant. Unless the police have expended An officer’s decision whether to considerable resources in investigating make an arrest is far from simple or a particular property crime, they are automatic. To be sure, the officer who generally obliged to abide by the witnesses a murder will make an arrest victim’s wishes. on the spot if possible. But most law- When the victim of a crime is in a breaking incidents are not that simple continuing relationship with the crim- 98 OUTLINE OF THE U.S. LEGAL SYSTEM

inal, the police often decline to make police may detain an individual an arrest. Such relationships include arrested without a warrant for up to landlord and tenant, one neighbor 48 hours without a court hearing on and another, and, until recently, whether the arrest was justified. husband and wife. In this last case, This appearance in court is the oc- however, heightened awareness of do- casion of several important events in mestic violence has had a significant the criminal justice process. First, the impact on police procedures. accused must have been informed of Rape and child molestation consti- the precise charges and must be in- tute another major category of crimes formed of all constitutional rights for which there are often no arrests and guarantees. Among others, these because the victims will not or cannot rights include those of the now fa- cooperate with the police. Oftentimes mous Miranda v. Arizona decision the victim is personally acquainted handed down in 1966 by the Supreme with, or related to, the criminal, and Court. The accused “must be warned the fear of reprisals or of ugly publicity prior to any questioning that he has inhibits the victim from pressing the right to remain silent, that any- a complaint. thing he says can be used against him in a court of law, that he has the right Victim Also Involved in Misconduct. to the presence of an attorney, and When police officers perceive that the that if he cannot afford an attorney victim of a crime is also involved in one will be appointed for him prior to some type of improper or question- any questioning.” (Such warnings able conduct, the officers frequently must also be given by the arresting of- opt not to make an arrest. ficer if the officer questions the sus- pect about the crime.) In some states Appearance Before a Magistrate the accused must be informed about After a suspect is arrested for a crime, other rights that are provided for in he or she is booked at the police the state’s Bill of Rights, such as the station; that is, the facts surrounding right to a speedy trial and the right to the arrest are recorded and the confront hostile witnesses. accused may be fingerprinted and Second, the magistrate will deter- photographed. Next the accused mine whether the accused is to be re- appears before a lower-level judicial leased on bail and, if so, what the official whose title may be judge, amount of bail is to be. Constitution- magistrate, or commissioner. Such an ally, the only requirement for the appearance is supposed to occur amount is that it shall not be “exces- “without unnecessary delay”; in 1991 sive.” Bail is considered to be a privi- the U.S. Supreme Court ruled that lege — not a right — and it may be CHAPTER 5: THE CRIMINAL COURT PROCESS 99

denied altogether in capital punish- the prosecution and a subsequent stage ment cases for which the evidence of of the criminal justice process begins. guilt is strong or if the magistrate be- lieves that the accused will flee from The Grand Jury Process or the prosecution no matter what the Preliminary Hearing amount of bail. An alternative to bail At the federal level all persons accused is to release the defendant on recogni- of a crime are guaranteed by the Fifth zance, basically on a pledge by the Amendment to have their cases con- defendant to return to court on the sidered by a grand jury. However, the appointed date for trial. Supreme Court has refused to make In minor cases the accused may be this right binding on the states. Today asked to plead guilty or not guilty. If only about half of the states use grand the plea is guilty, a sentence may be juries; in some of these, they are pronounced on the spot. If the defen- used for only special types of cases. dant pleads not guilty, a trial date is Those states that do not use grand scheduled. However, in the typical seri- juries employ a preliminary hearing ous (felony) case, the next primary or an examining trial. (A few states use duty of the magistrate is to determine both procedures.) Regardless of which whether the defendant requires a pre- method is used, the primary purpose liminary hearing. If such a hearing is of this stage in the criminal justice appropriate, the matter is adjourned by process is to determine whether there

Since 1966, police have had to advise suspects about their rights prior to any interrogation. They use the so-called “Miranda Warning,” named after Ernesto Miranda, who was granted a retrial because he was not advised about his rights. 100 OUTLINE OF THE U.S. LEGAL SYSTEM

is probable cause for the accused to hearing is used to determine whether be subjected to a formal trial. there is probable cause for the accused to be bound over for trial. At this The Grand Jury. Grand juries consist hearing the prosecution presents its of 16 to 23 citizens, usually selected at case, and the accused has the right to random from the voter registration cross-examine witnesses and to pro- lists, who render decisions by a ma- duce favorable evidence. Usually the jority vote. Their terms may last any- defense elects not to fight at this stage where from one month to one year, of the criminal process; in fact, a pre- and some may hear more than a thou- liminary hearing is waived by the de- sand cases during their term. The fense in the vast majority of cases. prosecutor alone presents evidence to If the examining judge determines the grand jury. Not only are the ac- that there is probable cause for a trial cused and his or her attorney absent or if the preliminary hearing is waived, from the proceedings, but usually they the prosecutor must file a bill of also have no idea which grand jury is information with the court where the hearing the case or when. If a majority trial will be held. This serves to outline believes probable cause exists, then an precisely the charges that will be adju- indictment, or true bill, is brought. dicated in the new legal setting. Otherwise the result is a no bill. Historically two arguments have The Arraignment been made in favor of grand juries. Arraignment is the process in which One is that grand juries serve as a check the defendant is brought before the on a prosecutor who might be using judge in the court where he or she is the office to harass an innocent person to be tried to respond to the grand for political or personal reasons. Ideal- jury indictment or the prosecutor’s ly an unbiased group of citizens would bill of information. The prosecutor or interpose themselves between an un- a clerk usually reads in open court ethical prosecutor and the defendant. the charges that have been brought A second justification for grand juries against the accused. The defendant is is to make sure that the district attor- informed that he or she has a consti- ney has secured enough evidence to tutional right to be represented by an warrant the trouble and expense — for attorney and that a lawyer will be ap- both the state and the accused — of a pointed without charge if necessary. full-fledged trial. The defendant has several options about how to plead to the charges. The The Preliminary Hearing. In the most common pleas are guilty and not majority of states that have abolished guilty. But the accused may also plead the grand jury system, a preliminary not guilty by reason of insanity, for- CHAPTER 5: THE CRIMINAL COURT PROCESS 101

mer jeopardy (having been tried on the never go to trial. That is because be- same charge at another time), or “nolo fore the trial date a bargain has been contendere” (from the Latin, no con- struck between the prosecutor and the test). Nolo contendere means that the defendant’s attorney concerning the accused does not deny the facts of the official charges to be brought and the case but claims that he or she has not nature of the sentence that the state committed any crime, or it may mean will recommend to the court. In effect, that the defendant does not under- some form of leniency is promised in stand the charges. The nolo contendere exchange for a guilty plea. plea can be entered only with the con- Because plea bargaining virtually sent of the judge (and sometimes the seals the fate of the defendant before prosecutor as well). Such a plea has trial, the role of the judge is simply to two advantages. It may help the ac- ensure that the proper legal and con- cused save face vis-à-vis the public be- stitutional procedures have been fol- cause he or she can later claim that lowed. There are three (not mutually technically no guilty verdict was exclusive) types of plea bargains. reached even though a sentence or a fine may have been imposed. Also, the Reduction of Charges. The most plea may spare the defendant from common form of agreement between certain civil penalties that might fol- a prosecutor and a defendant is a low a guilty plea (for example, a civil reduction of the charge to one less se- suit that might follow from conviction rious than that supported by the evi- for fraud or embezzlement). dence. This exposes the criminal to a If the accused pleads not guilty, the substantially reduced range of sen- judge will schedule a date for a trial. If tence possibilities. A second reason for the plea is guilty, the defendant may be a defendant to plead guilty to a re- sentenced on the spot or at a later date duced charge is to avoid a record of set by the judge. Before the court will conviction for an offense that carries a accept a guilty plea, the judge must social stigma. Another possibility is certify that the plea was made volun- that the defendant may wish to avoid a tarily and that the defendant was felony record altogether and would be aware of the implications of the plea. willing to plead guilty to almost any A guilty plea is to all intents and misdemeanor offered by the prosecu- purposes the equivalent to a formal tor rather than face a felony charge. verdict of guilty. Deletion of Tangent Charges. A sec- The Possibility of a Plea Bargain ond form of plea bargain is the agree- At both the state and federal levels at ment of the district attorney to drop least 90 percent of all criminal cases other charges pending against an indi- 102 OUTLINE OF THE U.S. LEGAL SYSTEM

vidual. There are two variations on presiding judge the discretion of al- this theme. One is an agreement not to lowing all of the defendant’s sentences prosecute “vertically” — that is, not to to run concurrently. prosecute more serious charges filed against the individual. The second Sentence Bargaining. A third form type of agreement is to dismiss “hori- of plea bargaining concerns a plea of zontal” charges; that is to dismiss ad- guilty from the defendant in exchange ditional indictments for the same for a prosecutor’s agreement to ask the crime pending against the accused. judge for a lighter sentence. The Another variation of this type of strength of the sentence negotiation is plea bargaining is the agreement in based upon the realities of the limited which a repeater clause is dropped resources of the judicial system. At the from an indictment. At the federal state level, at least, prosecutors are able level and in many states, a person is to promise the defendant a fairly spe- considered a habitual criminal upon cific sentence with confidence that the the third conviction for a violent judge will accept the recommenda- felony anywhere in the United States. tion. If the judge were not to do so, the The mandatory sentence for the habit- prosecutor’s credibility would quickly ual criminal is life imprisonment. In begin to wane, and many of the defen- state courts the habitual criminal dants who had been pleading guilty charge often is dropped in exchange would begin to plead not guilty and for a plea of guilty. take their chances in court. The result Another plea bargain of this type is would be a gigantic increase in court the agreement in which indictments in dockets that would overwhelm the different courts are consolidated into judicial system and bring it to a stand- one court in order that the sentences still. Prosecutors and judges under- may run concurrently. As indictments stand this reality, and so do the or preliminary hearing rulings are defense attorneys. handed down in many jurisdictions, they are placed on a trial docket on a Constitutional and Statutory Re- rotation system. This means that a de- strictions on Plea Bargaining. At fendant charged with four counts of both the state and federal levels, the forgery and one charge of possession requirements of due process of law of a forged instrument might be mean that plea bargains must be made placed on the docket of five different voluntarily and with comprehension. courts. Generally it is common prac- This means that the defendant must tice in such multicourt districts to be admonished by the court of the transfer all of a person’s indictments consequences of a guilty plea (for ex- to the first court listed. This gives the ample, the defendant waives all oppor- CHAPTER 5: THE CRIMINAL COURT PROCESS 103

tunities to change his or her mind at a on the case, and because of personal later date), that the accused must be interests or social pressures, the ac- sane, and that, as one state puts it, “It cused may wish to avoid the length must plainly appear that the defen- and publicity of a formal trial. Finally, dant is uninfluenced by any consider- some penologists (professionals in the ation of fear or by any persuasion, or field of punishment and rehabilita- delusive hope of pardon prompting tion) argue that the first step toward him to confess his guilt.” rehabilitation is for a criminal to For the first two types of plea bar- admit guilt and to recognize his or gains — reduction of charges and her problem. deletion of tangent charges — some Plea bargaining also offers some stricter standards govern the federal distinct advantages for the state and courts. One is that the judge may not for society as a whole. The most actually participate in the process of obvious is the certainty of conviction, plea bargaining; at the state level because no matter how strong the judges may play an active role in this evidence may appear, an acquittal is process. Likewise, if a plea bargain has always a possibility as long as a trial is been made between the U.S. attorney pending. Also, the district attorney’s and the defendant, the government office and judges are saved an may not renege on the agreement. If enormous amount of time and effort the federal government does so, the by their not having to prepare federal district judge must withdraw and preside over cases in which there the guilty plea. Finally, the Federal is no real contention of innocence Rules of Criminal Procedure require or that are not suited to the trial that before a guilty plea may be ac- process. Finally, when police officers cepted, the prosecution must present are not required to be in court testify- a summary of the evidence against ing in criminal trials, they have more the accused, and the judge must agree time to devote to preventing and that there is strong evidence of the solving crimes. defendant’s guilt. Plea bargains do have a negative side as well. The most frequent objec- Arguments For and Against Plea tion to plea bargaining is that the de- Bargaining. For the defendant the fendant’s sentence may be based upon obvious advantage of the bargain is nonpenological grounds. With the that he or she is treated less harshly large volume of cases making plea bar- than would be the case if the accused gaining the rule, the sentence often were convicted and sentenced under bears no relation to the specific facts maximum conditions. Also, the ab- of the case, to the correctional needs of sence of a trial often lessens publicity the criminal, or to society’s legitimate 104 OUTLINE OF THE U.S. LEGAL SYSTEM

interest in vigorous prosecution of the clause. The defense may be at a disad- case. A second defect is that if plea vantage because the rules of discovery bargaining becomes the norm of a (the laws that allow the defense to particular system, then undue pres- know in detail the evidence the prose- sure may be placed upon even inno- cution will present) in some states cent persons to plead guilty. Studies limit the defense counsel’s case prepa- have shown that, in some jurisdic- ration to the period after the plea tions, the less the chance for convic- bargain has occurred. Thus the plea tion, the harder the bargaining may be bargain may deprive the accused of because the prosecutor wants to get at basic constitutional rights. least some form of minimal confes- sion out of the accused. The Adversarial Process A third disadvantage of plea bar- The adversarial model is based on the gaining is the possibility of the abuse assumption that every case or contro- called overcharging — the process versy has two sides to it: In criminal whereby the prosecutor brings charges cases the government claims a defen- against the accused more severe than dant is guilty while the defendant con- the evidence warrants, with the hope tends innocence; in civil cases the that this will strengthen his or her plaintiff asserts that the person he or hand in subsequent negotiations with she is suing has caused some injury the defense attorney. while the respondent denies responsi- Another flaw with the plea bargain- bility. In the courtroom each party ing system is its very low level of visi- provides his or her side of the story as bility. Bargains between prosecutor he or she sees it. The theory (or hope) and defense attorney are not made in underlying this model is that the truth open court presided over by a neutral will emerge if each party is given un- jurist and for all to observe. Instead, bridled opportunity to present the full they are more likely made over a cup panoply of evidence, facts, and argu- of coffee in a basement courthouse ments before a neutral and attentive cafeteria where the conscience of the judge (and jury). two lawyers is the primary guide. The lawyers representing each side Finally, the system has the potential are the major players in this court- to circumvent key procedural and room drama. The judge acts more as a constitutional rules of evidence. Be- passive, disinterested referee whose cause the prosecutor need not present primary role is to keep both sides any evidence or witnesses in court, a within the accepted rules of legal pro- bluff may result in a conviction even cedure and courtroom decorum. The though the case might not be able to judge eventually determines which pass the muster of the due process side has won in accordance with the CHAPTER 5: THE CRIMINAL COURT PROCESS 105

rules of evidence, but only after both limits, ultimately reaching 100 days, sides have had a full opportunity to within which criminal charges must present their case. either be brought to trial or dismissed. Most states have similar measures on PROCEDURES DURING A the statute books, although the precise CRIMINAL TRIAL time period varies from one jurisdic- ssuming that no plea bargain tion to another. By “public trial” the has been struck and the ac- Founders meant to discourage the no- Acused maintains his or her in- tion of secret proceedings whereby an nocence, a formal trial will take place. accused could be tried without public This is a right guaranteed by the Sixth knowledge and whisked off to some Amendment to all Americans charged unknown detention camp. with federal crimes and a right guaran- The Sixth Amendment also guar- teed by the various state constitutions antees Americans the right to an im- — and by the Fourteenth Amendment partial jury. At the least this has meant — to all persons charged with state that the prospective jurors must not be offenses. The accused is provided prejudiced one way or the other before many constitutional and statutory the trial begins. For example, a poten- rights during the trial. The following tial juror may not be a friend or rela- are the primary rights that are binding tive of the prosecutor or the crime on both the federal and state courts. victim; nor may someone serve who believes that anyone of the defendant’s Basic Rights Guaranteed During race or ethnic ancestry is “probably the the Trial Process criminal type.”What the concept of an The Sixth Amendment says, “In all impartial jury of one’s peers has come criminal prosecutions, the accused to mean in practice is that jurors are to shall enjoy the right to a speedy and be selected randomly from the voter public trial.” The Founders empha- registration lists — supplemented in sized the word speedy so that an ac- an increasing number of jurisdictions cused would not languish in prison for by lists based on automobile registra- a long time prior to the trial or have tions, driver’s licenses, telephone the determination of his or her fate books, welfare rolls, and so on. Al- put off for an unduly long period of though this system does not provide time. But how soon is speedy? Al- a perfect cross-section of the commu- though this word has been defined in nity, because not all persons are regis- various ways by the Supreme Court, tered to vote, the Supreme Court has Congress gave new meaning to the said that this method is good enough. term when it passed the Speedy Trial The High Court has also ruled that Act of 1974. The act mandated time no class of persons (such as African 106 OUTLINE OF THE U.S. LEGAL SYSTEM

Americans or women) may be system- erally chartered bank in New Jersey atically excluded from jury service. runs afoul of both federal and state Besides being guaranteed the right law. That person could be legally tried to be tried in the same locale where the and acquitted for that offense in a New crime was committed and to be in- Jersey court and subsequently be tried formed of the charges, defendants for that same action in federal court. have the right to be confronted with Another important right guaran- the witnesses against them. They have teed to the accused at both the state the right to know who their accusers and federal levels is not to “be com- are and what they are charging so that pelled in any criminal case to be a wit- a proper defense may be formulated. ness against himself.” This has been The accused is also guaranteed the interpreted to mean that the fact that opportunity “to have the Assistance of someone elects not to testify on his or Counsel for his defense.” Prior to the her own behalf in court may not be 1960s this meant that one had this used against the person by judge and right (at the state level) only for jury. This guarantee serves to reinforce serious crimes and only if one could the principle that under the U.S. judi- pay for an attorney. However, because cial system the burden of proof is on of a series of Supreme Court deci- the state; the accused is presumed in- sions, the law of the land guarantees nocent until the government proves one an attorney if tried for any crime otherwise beyond a reasonable doubt. that may result in a prison term, and Finally, the Supreme Court has in- the government must pay for the legal terpreted the guarantee of due process defense for an indigent defendant. of law to mean that evidence procured This is the rule at both the national in an illegal search and seizure may not and state levels. be used against the accused at trial. The Fifth Amendment to the U.S. The source of this so-called exclusion- Constitution declares that no person ary rule is the Fourth Amendment to shall “be subject for the same offence the U.S. Constitution; the Supreme to be twice put in jeopardy of life and Court has made its strictures binding limb.” This is the double jeopardy on the states as well. The Court’s pur- clause and means that no one may be pose was to eliminate any incentive the tried twice for the same crime by any police might have to illegally obtain state government or by the federal evidence against the accused. government. It does not mean, however, that a person may not be tried twice Selection of Jurors for the same action if that action has If the accused elects not to have a violated both national and state laws. bench trial — that is, not to be tried For example, someone who robs a fed- and sentenced by a judge alone — his CHAPTER 5: THE CRIMINAL COURT PROCESS 107

or her fate will be determined by a The second goal that the opposing jury. At the federal level 12 persons attorneys have in questioning pros- must render a unanimous verdict. At pective jurors is to eliminate those the state level such criteria apply only who they believe would be unfavor- to the most serious offenses. In many able to their side even though no overt states a jury may consist of fewer than reason is apparent for the potential 12 persons and render verdicts by bias. Each side is allowed a number of other than unanimous decisions. peremptory challenges — requests to A group of potential jurors is sum- the court to exclude a prospective moned to appear in court. They are juror with no reason given. Most states questioned in open court about their customarily give the defense more general qualifications for jury service peremptory challenges than the prose- in a process known as “voir dire” cution. At the federal level one to three (from Old French, meaning “to say the challenges per jury are usually permit- truth”). The prosecutor and the de- ted each side, depending on the nature fense attorney ask general and specific of the offense; as many as 20 are al- questions of the potential jurors. Are lowed in capital cases. The use of they citizens of the state? Can they peremptory challenges is more of an comprehend the English language? art than a science and is usually based Have they or anyone in their family on the hunch of the attorneys. ever been tried for a criminal offense? In the past attorneys were able to Have they read about or formed any exclude potential jurors via the opinions about the case at hand? peremptory challenge for virtually any In conducting the voir dire, the state reason whatsoever. However, in recent and the defense have two goals. The years the Supreme Court has inter- first is to eliminate all members of the preted the Fourteenth Amendment’s panel who have an obvious reason why equal protection clause to restrict this they might not render an impartial de- discretion by prohibiting prosecutors cision in the case. Common examples from using their challenges to exclude might be someone who is excluded by African Americans or women from law from serving on a jury, a juror who serving on a criminal jury. is a friend or relative of a participant in The process of questioning and the trial, and someone who openly ad- challenging prospective jurors contin- mits a strong bias in the case at hand. ues until all those duly challenged for Objections to jurors in this category are cause are eliminated, the peremptory known as challenges for cause, and the challenges are either used up or number of such challenges is unlimit- waived, and a jury of 12 (six in some ed. It is the judge who determines states) has been created. In some states whether these challenges are valid. alternate jurors are also chosen. They 108 OUTLINE OF THE U.S. LEGAL SYSTEM

attend the trial but participate in de- witnesses. The physical evidence may liberations only if one of the original include things such as bullets, ballistics jurors is unable to continue in the pro- tests, fingerprints, handwriting sam- ceedings. Once the panel has been se- ples, blood and urine tests, and other lected, they are sworn in by the judge documents or items that serve as phys- or the clerk of the court. ical aids. The defense may object to the admission of any of these tangible Opening Statements items and will, if successful, have the After the formal trial begins, both the item excluded from consideration. If prosecution and the defense make an defense challenges are unsuccessful, opening statement (although in no the physical evidence is labeled by one state is the defense compelled to do of the courtroom personnel and be- so). Long and detailed statements are comes part of the official record. more likely to be made in jury trials Most evidence at criminal trials than in bench trials. The purpose of takes the form of testimony of wit- opening statements is to provide nesses. The format is a question-and- members of the jury — who lack answer procedure whose purpose is to familiarity with the law and with elicit very specific information in an procedures of criminal investigation orderly fashion. The goal is to present — with an outline of the major objec- only evidence that is relevant to the tives of each side’s case, the evidence immediate case at hand and not to that is to be presented, the witnesses give confusing or irrelevant informa- that are to be called, and what each tion or illegal evidence that might side seeks to prove. If the opening result in a mistrial (for example, statements are well presented, the ju- evidence that the accused had a prior rors will find it easier to grasp the conviction for an identical offense). meaning and significance of the After each witness the defense at- evidence and testimony. The usual torney has the right to cross-examine. procedure is for the state to make its The goal of the defense will be to im- opening statement first and for the de- peach the testimony of the prosecu- fense to follow with a statement about tion witness — that is, to discredit it. how it will refute that case. The attorney may attempt to confuse, fluster, or anger the witness, causing The Prosecution’s Case him or her to lose self-control and After the opening statements the pros- begin providing confusing or conflict- ecutor presents the evidence amassed ing testimony. A prosecution witness’ by the state against the accused. Evi- testimony may also be impeached if dence is generally of two types — defense witnesses who contradict the physical evidence and the testimony of version of events suggested by the state CHAPTER 5: THE CRIMINAL COURT PROCESS 109

are subsequently presented. Upon cused faces the same risks of cross- completion of the cross-examination, examination as any other witness.) the prosecutor may conduct a redirect After the defense has rested its case, examination, which serves to clarify or the prosecution has the right to correct some telling point made dur- present rebuttal evidence. In turn, the ing the cross-examination. After the defense may offer a rejoinder known state has presented all its evidence and as a surrebuttal. After that, each side witnesses, it rests its case. delivers closing arguments. Often- times this is one of the more dramatic The Case for the Defense episodes in the trial because each side The presentation of the case for the seeks to sum up its case, condense its defense is similar in style and format strongest arguments, and make one to that of the prosecution. Tangible ev- last appeal to the jury. New evidence idence is less common in the defense’s may not be presented at this stage, and case, and most of the evidence will be the arguments of both sides tend to that of witnesses who are prepared to ring with emotion and appeals to val- rebut or contradict the prosecution’s ues that transcend the immediate case. arguments. The witnesses are ques- The prosecutor may talk about the tioned by the defense attorney in the crime problem in general, about the same style as those in the prosecution need for law and order, and about the case. Each defense witness may in turn need not to let compassion for the ac- be cross-examined by the district at- cused get in the way of empathy for torney, and then a redirect examina- the crime victim. The defense attor- tion is in order. ney, on the other hand, may remind The difference between the case for the jurors “how we have all made mis- the prosecution and the case for the takes in this life” or argue that in a free, defense lies in their obligation before democratic society any doubt they the law. The defense is not required by have should be resolved in favor of the law to present any new or additional accused. The prosecution probably evidence or any witnesses at all. The avoids emotionalism more than the defense may consist merely of chal- defense attorney, however, because lenging the credibility or the legality of many jury verdicts have been reversed the state’s evidence and witnesses. The on appeal after the district attorney in- defense is not obligated to prove the jected prejudicial statements into the innocence of the accused; it need show closing statements. only that the state’s case is not beyond a reasonable doubt. The defendant Role of the Judge During the Trial need not even take the stand. (Howev- The judge’s role in the trial, although er, if he or she elects to do so, the ac- very important, is a relatively passive 110 OUTLINE OF THE U.S. LEGAL SYSTEM

Prosecutors and police display a seizure of more than $45 million worth of heroin and cocaine. Illegal drug traffic belongs under either one of two categories of crime: organized crime and consensual crime, also known as victimless crime, because both the perpetrator and the client desire the forbidden activity.

Witnesses and physical evidence form the principal elements of the prosecution’s case in most trials. Left: Tampa Police Department investigators take fingerprint samples in an attempt to trace an accused terrorist. Above: An expert witness points to a chart of the parking lot where an alleged crime took place. CHAPTER 5: THE CRIMINAL COURT PROCESS 111

one. He or she does not present any are about equally strong or on a evidence or take an active part in the point of law that is open to a variety examination of the witnesses. The of interpretations. judge is called upon to rule on the many motions of the prosecutor and Role of the Jury During the Trial of the defense attorney regarding the The jurors’ role during the trial is pas- types of evidence that may be present- sive. Their job is to listen attentively to ed and the kinds of questions that the cases presented by the opposing may be asked of the witnesses. In attorneys and then come to a decision some jurisdictions the judge is per- based solely on the evidence that is set mitted to ask substantive questions of forth. They are ordinarily not permit- the witnesses and also to comment to ted to ask questions either of the wit- the jury about the credibility of the nesses or of the judge, nor are they evidence that is presented; in other allowed to take notes of the proceed- states the judge is constrained from ings. This is not because of constitu- such activity. Still, the American legal tional or statutory prohibitions but tradition has room for a variety of primarily because it has been the tra- judicial styles that depend on the per- ditional practice of courts in America. sonality, training, and wisdom of indi- In recent years, however, many vidual judges. judges have allowed jurors to become First and foremost, the judge is ex- more involved in the judicial arena. pected to play the part of a disinterest- Chicago’s Chief U.S. District Court ed party whose primary job is to see to Judge John F. Grady has for over a it that both sides are allowed to decade permitted jurors in his court- present their cases as fully as possible room to take notes. At least four U.S. within the confines of the law. If appellate courts have given tacit ap- judges depart from the appearance or proval to the practice of juror partici- practice of being fair and neutral par- pation in questioning witnesses, as ties, they run counter to fundamental long as jurors are not permitted to tenets of American jurisprudence and blurt out queries in the midst of trial risk having their decisions overturned and attorneys are given a chance to by an appellate court. object to specific questions before Although judges do for the most they are posed to witnesses. In some part play such a role, the backgrounds states a few trial judges have allowed and values of the jurists also affect jurors to take fairly active roles in the their decisions in the close calls — trial. Still, at both state and federal lev- when they are called upon to rule on els the role of the jury remains basi- a motion for which the arguments cally passive. 112 OUTLINE OF THE U.S. LEGAL SYSTEM

Instructions to the Jury if there are more than one, who must Although the jury’s job is to weigh and sign the official documents that ex- assess the facts of the case, the judge press the verdict of the jury. After must instruct the jurors about the the instructions are read to the jury meaning of the law and how the law is (and the attorneys for each side have to be applied. Because many cases are been given an opportunity to offer overturned on appeal as a result of objections), the jurors retreat into a faulty jury instructions, judges tend to deliberation room to decide the fate take great care that the wording be of the accused. technically and legally correct. All jury instructions must have The Jury’s Decision some basic elements. One is to define The jury deliberates in complete for the jurors the crime with which privacy; no outsiders observe or par- the accused is charged. This may in- ticipate in its debate. During their volve giving the jurors a variety of op- deliberation jurors may request the tions about what kind of verdict to clarification of legal questions from bring. For example, if one person has the judge, and they may look at items taken the life of another, the state may of evidence or selected segments of the be trying the accused for first-degree case transcript, but they may consult murder. Nevertheless, the judge may nothing else — no law dictionaries, no be obliged to acquaint the jury with legal writings, no opinions from ex- the legal definition of second-degree perts. When it has reached a decision murder or manslaughter if it should by a vote of its members, the jury re- determine that the defendant was the turns to the courtroom to announce killer but did not act with malice its verdict. If it has not reached a deci- aforethought. sion by nightfall, the jurors are sent The judge must also remind the home with firm instructions neither jury that the burden of proof is on the to discuss the case with others nor state and that the accused is presumed read about the case in the newspapers. to be innocent. If, after considering In very important or notorious cases, all the evidence, the jury still has a the jury may be sequestered by the reasonable doubt as to the guilt of judge, which means that its members the accused, it must bring in a not will spend the night in a local hotel guilty verdict. away from the public eye. Finally, the judge usually acquaints If the jury becomes deadlocked the jurors with a variety of procedural and cannot reach a verdict, it may re- matters: how to contact the judge if port that fact to the judge. In such an they have questions, the order in event the judge may insist that the which they must consider the charges jury continue its effort to reach a ver- CHAPTER 5: THE CRIMINAL COURT PROCESS 113

Defendants in the photos to the left and above are shown awaiting the jury’s verdict and listening to the judge’s announcement of the verdict. Once the verdict is reached, the judge has several weeks to determine the penalty, based on the principle that the punishment should fit the crime. Bottom left, a is led back to his cell. 114 OUTLINE OF THE U.S. LEGAL SYSTEM

dict. Or, if the judge is convinced that that is, that each juror be asked indi- the jury is in fact hopelessly dead- vidually if the general verdict actually locked, he or she may dismiss the jury reflects his or her own opinion. The and call for a new trial. purpose is to determine whether each Research studies indicate that most juror supports the overall verdict or juries dealing with criminal cases whether he or she is just caving in to make their decisions fairly quickly. Al- group pressure. If the polling proce- most all juries take a vote soon after dure reveals that the jury is indeed not they retire to their chambers in order of one mind, it may be sent back to the to see how divided, or united, they are. jury room to continue deliberations; In 30 percent of the cases it takes only in some jurisdictions a mistrial may one vote to reach a unanimous deci- be declared. If a mistrial is declared, sion. In 90 percent of the remainder, the case may be tried again before the majority on the first ballot eventu- another jury. There is no double jeop- ally wins out. Hung juries — those in ardy because the original jury did not which no verdict can be reached — agree on a verdict. If the jury’s verdict tend to occur only when a large mi- is not guilty, the defendant is dis- nority existed on the first ballot. charged on the spot and is free to leave Scholars have also learned that ju- the courtroom. ries often reach the same verdict that the judge would have, had he or she PROCEDURES AFTER A been solely responsible for the deci- CRIMINAL TRIAL sion. One large jury study asked judges t the close of the criminal trial, to state how they would have decided generally two stages remain jury cases over which they presided. Afor the defendant if he or she The judge and jury agreed in 81 per- has been found guilty: sentencing and cent of the criminal cases (about the an appeal. same as in civil cases). In 19 percent of the criminal cases the judge and jury Sentencing disagreed, with the judge showing a Sentencing is the court’s formal pro- marked tendency to convict where the nouncement of judgment upon the juries had acquitted. defendant at which time the punish- When the members of the jury do ment or penalty is set forth. finally reach a decision, they return to At the federal level and in most the courtroom and their verdict is an- states, sentences are imposed by the nounced in open court, often by the judge only. However, in several states jury foreman. At this time either the the defendant may elect to be sen- prosecutor or the defense attorney tenced by either a judge or a jury, and often asks that the jury be polled — in capital cases states generally require CHAPTER 5: THE CRIMINAL COURT PROCESS 115

that no death sentence shall be im- tence shall be. Judges are presented posed unless it is the determination of with a variety of alternatives and a 12 unanimous jurors. In some states range of sentences when it comes to after a jury finds someone guilty, the punishment for the criminal. Many of jury deliberates a second time to de- these alternatives involve the concept termine the sentence. In several states of rehabilitation and call for the assis- a new jury is empaneled expressly for tance of professionals in the fields of sentencing. At this time the rules of and social science. evidence are more relaxed, and the The lightest punishment that a jury may be permitted to hear evi- judge can hand down is that of proba- dence that was excluded during the ac- tion. This is often the penalty if the tual trial (for example, the previous crime is regarded as minor or if the criminal record of the accused). judge believes that the guilty person is After the judge pronounces the not likely to engage in additional sentence, several weeks customarily criminal activity. If a probated sen- elapse between the time the defendant tence is handed down, the criminal is found guilty and the time when the may not spend any time in prison as penalty is imposed. This interval per- long as the conditions of the proba- mits the judge to hear and consider tion are maintained. Such conditions any posttrial motions that the defense might include staying away from con- attorney might make (such as a mo- victed criminals, not committing tion for a new trial) and to allow a other crimes, or with increasing fre- probation officer to conduct a presen- quency, performing some type of tence investigation. The probation community service. If a criminal officer is a professional with a back- serves out his or her probation with- ground in criminology, psychology, out incident, the criminal record is or social work, who makes a recom- usually wiped clean and in the eyes of mendation to the judge about the the law it is as if no crime had ever length of the sentence to be imposed. been committed. The probation officer customarily If the judge is not disposed toward examines factors such as the back- probation and feels that jail time is in ground of the criminal, the serious- order, he or she must impose a prison ness of the crime committed, and the sentence that is within a range pre- likelihood that the criminal will con- scribed by law. The reason for a range tinue to engage in illegal activity. of years instead of an automatically as- Judges are not required to follow the signed number is that the law recog- probation officer’s recommendation, nizes that not all crimes and criminals but it is still a major factor in the are alike and that in principle the pun- judge’s calculus as to what the sen- ishment should fit the crime. 116 OUTLINE OF THE U.S. LEGAL SYSTEM

In an effort to eliminate gross not necessarily have the final say on disparities in sentencing, the federal the matter. Whenever a prison term is government and many states have at- set by the judge, it is still subject to the tempted to develop sets of precise parole laws of the federal government guidelines to create greater consisten- and of the states. Thus parole boards cy among judges. At the national level (and sometimes the president and this effort was manifested by the en- governors who may grant pardons or actment of the Sentencing Reform Act commute sentences) have the final say of 1987, which established guidelines about how long an inmate actually to structure the sentencing process. stays in prison. Congress provided that judges may depart from the guidelines only if they An Appeal find an aggravating or mitigating cir- At both the state and federal levels cumstance that the commission did everyone has the right to at least one not adequately consider. Although the appeal upon conviction of a felony, congressional guidelines do not speci- but in reality few criminals avail them- fy the kinds of factors that could con- selves of this privilege. An appeal is stitute grounds for departure from the based on the contention that an error sentencing guidelines, Congress did of law was made during the trial state that such grounds could not in- process. Such an error must be re- clude race, gender, national origin, versible as opposed to harmless. An creed, religion, socioeconomic status, error is considered harmless if its drug dependence, or alcohol abuse. occurrence had no effect on the out- The states, too, have a variety of come of the trial. A reversible error, programs for avoiding vast disparities however, is a serious one that might in judges’ sentences. By 1995, 22 states have affected the verdict of the judge had created commissions to establish or jury. For example, a successful sentencing guidelines for their judges, appeal might be based on the argu- and as of late 1997 such guidelines ment that evidence was improperly were in effect in 17 states. Likewise, al- admitted at trial, that the judge’s most all of the states have now enact- instructions to the jury were flawed, ed mandatory sentencing laws that or that a guilty plea was not voluntar- require an automatic, specific sentence ily made. However, appeals must be upon conviction of certain crimes — based on questions of procedure and particularly violent crimes, crimes in legal interpretations, not on factual which a gun was used, or crimes per- determinations of the defendant’s petrated by habitual offenders. guilt or innocence as such. Further- Despite the enormous impact that more, under most circumstances one judges have on the sentence, they do cannot appeal the length of one’s sen- CHAPTER 5: THE CRIMINAL COURT PROCESS 117

tence in the United States (as long as it that are reversed on technicalities. was in the range prescribed by law). Surely this does happen, and one Criminal defendants do have some might argue that this is inevitable in degree of success on appeal about 20 a democratic country whose legal percent of the time, but this does not system is based on fair play and the mean that the defendant goes free. presumption of the innocence of the The usual practice is for the appellate accused. However, about 90 percent court to remand the case (send it back of all defendants plead guilty, and down) to the lower court for a new this plea virtually excludes the possi- trial. At that point the prosecution bility of an appeal. Of the remaining must determine whether the proce- group, two-thirds are found guilty at dural errors in the original trial can be trial, and only a small percentage of overcome in a second trial and these appeal. Of those who do appeal, whether it is worth the time and effort only about 20 percent have any to do so. A second trial is not consid- measurable degree of success. Of ered to be double jeopardy, since the those whose convictions are reversed, defendant has chosen to appeal the many are found guilty at a subsequent original conviction. trial. Thus the number of persons The media and others concerned convicted of crimes who are subse- with the law often call attention to ap- quently freed because of reversible pellate courts that turn loose seeming- court errors is a small fraction of ly guilty criminals and to convictions 1 percent.