Barry Sussman

The Federal conviction rate in the United States of America has now reached the improbable rate of 99%.

The vast majority of these convictions are achieved through plea bargaining as 97% of all federal cases end with a guilty plea being entered by the defendant. Approximately two thirds of the three percent who decide to brave trial find themselves convicted, thus achieving the mind-boggling conviction rate of 99%.

Imagine for a moment if a loved one found themselves in legal jeopardy in some foreign country that had a 99% conviction rate. You might ask what kind of illegitimate system are they up against. You would likely conclude that any system where conviction is nearly-assured is stacked against the accused. Yet this is exactly what the situation is in federal courts in the United States, the alleged bastion of liberty that does not hesitate to hold itself out as a beacon of freedom and poses as the benchmark of fairness that other nations are encouraged to follow.

Even if 100% of the accused were actually guilty, a normal margin of error would prevent a guilty finding in every single one of their cases. Law students in the US are taught that it is better for 10 guilty men to go free than for 1 innocent man to be wrongly convicted, yet this lofty principle has been turned on its head. America’s obsession with punishment has fostered an environment where the exact opposite is now true.

None of the guilty must escape justice, even if it results in a bit of what the US government politely refers to as “collateral damage.” Federal prosecutors rationalize this by saying that no one is really innocent, they must have done something. Stalin’s chief of the secret police, Lavrentiy Beria, allegedly quipped “Show me the man and I’ll show you the crime.” This philosophy serves the American criminal justice system well as federal statutes tend to be amorphous and overly-broad, thus ensuring that nearly everyone is guilty of something.

Two recent high-profile acquittals in federal court highlight how the 1% acquittal rate actually helps perpetuate the notion of American justice being fair. John Edwards, former presidential and vice-presidential candidate, and Roger Clemens, former major league baseball star pitcher, both achieved the improbable result of acquittal in federal court. These two cases generated a tremendous amount of publicity, causing the not guilty findings to be disproportionately disseminated throughout the American media. They certainly received many times the publicity of the countless other federal defendants who were convicted over the course of the same time. Uninformed observers could easily conclude that a victory for the defense in federal court is a routine occurrence.

The defendants in these two cases had some important things in common. Most important, they had the resources to mount a successful defense. A large part of the government’s strategy in federal cases is to “wear out” the accused. Typically, this is accomplished by devoting unlimited financial resources to the prosecution and spending the accused into oblivion. Federal cases are complex and expensive matters to defend, typically requiring a seven or eight figure expenditure. Edwards and Clemens were both able to muster the required resources, but how many others could do the same? The American criminal justice system guarantees criminal defendants “effective” legal counsel, but this is often a far cry from the kind of representation needed to overcome the numerous advantages enjoyed by the government. Appointed counsel is often quick to plead clients out and avoid the pitfalls of trial, regardless of a client’s relative guilt or innocence.

Edwards and Clemens, because of their respective public persona, also shared an ability to project a positive image to at least part of the prospective jury pool, thus ensuring some semblance of a presumption of innocence. Defendants in federal criminal cases are all too often assumed to be guilty even before the proceedings begin. Jurors find themselves over-impressed by the fact that a particular defendant warranted federal (as opposed to local) prosecution and assume that in order for the federal government to have gotten involved “they must have done something.” Some jurors cannot grasp the differences between indictment and conviction. Add the fact that many defendants are minorities into the mix and you have something far short of the presumption of innocence that is alleged to exist in America’s criminal justice system.

Federal trials tend to turn on subtleties that are best handled by experienced federal defense attorneys. In a federal prosecution why a defendant did something is often more relevant than what was done because guilt or innocence turns on the issue of intent and how it relates to the statute under which the accused is charged. This can result in highly technical legal calculations being made by a jury with no skill or education in such matters. Government prosecutors are quick to exploit jurors’ lack of expertise in such matters by emphasizing elements of the offense that have nothing to do with guilt or innocence. Defendants like Edwards and Clemens possess the resources to retain counsel capable of successfully rebutting such tactics, but most of those accused do not. There are some very good public defenders, but many are overburdened and getting clients to accept plea bargains is often their default position.

The prosecution of John Edwards was in many ways typical of the minutia pursued by federal prosecutors. Edwards was accused of using campaign funds for impermissible purposes, namely hiding his affair and child with a mistress. The government sought to stretch the campaign finance laws beyond their logical purpose and in a direction never before imagined. Yet this is what successful federal prosecutors do. They find new and creative ways to use existing laws in ways not necessarily intended. Fortunately for Edwards, his top-flight defense counsel was up to the task of rebutting the government’s creative theory of prosecution. His jury acquitted him on one count and failed to reach a decision on the others. The government, sensing victory would be elusive, decided not to retry the counts on which the jury was hung.

Roger Clemens had to endure two criminal trials before being acquitted. His offenses stemmed from the alleged use of performance enhancing drugs and related lying under oath before Congress. His first case ended when the judge declared a mistrial after prosecutors failed to heed the judge’s warning about introducing certain evidence. Federal prosecutors are typically able to skirt such edicts, so it is of little surprise that they tried more of the same in the Clemens matter. What may be most surprising is that the judge did not allow the prosecution to get away with it.

Clemens’ second trial saw the government throw nearly everything they had at him. This lengthy affair seemed endless, dragging on for about two months. Jurors often slept through the proceedings and the judge repeatedly queried the government about where this was all going. The trial’s length and complexity would by design have broken most defendants financially, but like John Edwards, Clemens had the financial resources to see the matter to its conclusion. His lawyers performed brilliantly. In the end the jury acquitted on all counts, sending a resounding message to the government that such trivialities do not warrant federal prosecution.

Unfortunately, despite the relatively petty nature of the aforementioned offenses, the average American would most likely find themselves serving a lengthy sentence if similarly charged. A combination of public persona and financial resources allowed Edwards and Clemens to enter into the exclusive 1% who actually prevail in a federal criminal trial. Recognizing the shared characteristics of these two defendants sheds light on who makes up this elusive 1%. It also begs the question of what an ordinary defendant’s odds are of success in federal court. A half of one percent? A tenth? These are startling numbers for the self-professed Land of the Free and worthy of further examination. Stay tuned.