A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Friday, June 04, 2010

A Perfect Game: The Criminal Justice System

Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

It's too easy to compare the missed call that robbed Armando Gallaraga of only the 21st game in Major League Baseball's history to the criminal justice system, but what the hell.

Gallaraga pitched a perfect game. The replay shows it, the ump admits it, even Jason Donald, the hitter called "safe" admits it.

Gallaraga pitched a perfect game.

But we will write down that he didn't. He will receive no credit for this perfect game. According to the law, it never happened.

My friend who made the quote at the beginning of this post makes the point. He's got support. Yes it happened, but sometimes the law steps in and poof, it didn't happen.

Any criminal defense lawyer who felt his client was wrongly convicted, has stood at sentencing and heard the judge and prosecutor say over and over again "but the jury found him guilty." Yes, a group of people looked at the evidence and made a judgement call. Human beings came together to decide whether someone committed a crime. Most of the time it's easy. There's a confession, along with witnesses, along with physical or scientific evidence, and the combination of all of it is proof beyond a reasonable doubt

But it's the cases like the missed call that resulted in a "non"-perfect game, cases where there is one witness, who may have gotten it wrong.

Most people will say that a guilty verdict means the defendant "did it," but that an acquittal doesn't mean he didn't do it. That makes sense only in regard to the fact that an acquittal can be the result not only of a jury thinking the defendant didn't commit the crime, but that they don't believe the government proved the case beyond a reasonable doubt. The latter is less likely, as juries are told to use common sense, which is a way for them to disregard the burden of proof. In sum, if a jury "thinks" the defendant did it, he's guilty.

We've seen a lot of innocent defendants released over the past few years. In a slew of post-verdict cases, there was a prosecutor announcing that "a jury found him guilty." This is spouted even in the face of DNA evidence (our instant replay) proving innocence. The public hears only of the exoneration, not all the hearings where the state tried to maintain the conviction despite evidence of innocence.

We've even had arguments as to whether factual innocence is relevant.

Today the country is crying foul - a man pitched a perfect game and the law prevents us from doing anything about it. It's wrong. It's not fair. But my friend is right - we in this country love law & order so much, that we can say with a straight face that Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

And nobody will, regardless of the truth.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter


  1. Good post. It kills me to try a perfect case and then lose. But then I remember that trial is not an athletic event. Sometimes a confession is just a confession.

  2. That's always the government's story when exculpatory post-conviction matters come up, "a jury convicted the defendant." This is like declaring the umpire called him safe.

    They hide behind it and continue to argue and fight in the face of truth.

    It's so much easier to just watch the video and know the umpire got the call wrong. But for some, the umpire's ruling is all that matters. Must be a very simple life.

  3. Put this anecdote in the closing argument folder.

  4. Anonymous1:11 AM

    If the guy is later found to factually innocent I have no problem releasing him and seeing the conviction reversed.

    I do have a legal strategy question for you. The vast majority of criminal cases (almost every case except for the OVI's which people fight like heck) I have been involved with have been plea bargained. You can't appeal a plea bargain (in my state at least) the way you can a conviction. Have you ever advised a client to take a plea bargain for a lesser penalty, even knowing that it can't be appealed later? What are your thoughts on that issue?

  5. mike foley11:34 AM

    I don't know of any criminal defense attorney that hasn't advised a client to take a plea bargain, knowing that it can't be appealed. The facts are that the state can over charge anything so much that the possible draconian penalties practically force some one who is put in the position of having to take a plea to a lesser charge versus the risk of losing a trial where the outcome might be years in jail. Ask any criminal defense attorney, they can give specific examples of charges and cases where this has happened.

  6. Anonymous2:42 AM

    I guess I am just looking at it from the other end. In my county, you just about have to charge a suspect with 20 felonies to get a 100$ muffler violation at the end of the process. That is an exaggeration, but not by much in some cases. I don't charge anyone with anything I don't have at least PC for (and typically a lot more), but I have often seen weeks of hard work building a great case (video footage of the crime itself, witness statements, the victim clearly identifying the suspect, forensic evidence, sometimes even a confession) routinely get plead down to peanuts.

    I guess from the suspect view, it looks bad, but our joke is that your first murder in my county is just a disorderly conduct after the plea bargain. :-)

    That said, it varies a lot by jurisdiction. That same fact pattern just one county over would not be plead away to nothing and the suspect would have far less options to walk away relatively unscathed.

    The worst overcharging of unfounded BS cases I have seen is more common in the military (UCMJ) system than in civilian courts.

    I guess the plea bargain question is really a gamble. If you are factually innocent of the crime, I would be inclined to fight it all the way through a trial. If you are guilty of the crime, it might make more sense to just cut the best deal you can. That said, there are other aspect of that calcuation. Can you afford 50,000$ in legal fees to fight the case (even if you are really innocent)? One thing I always feel comfortable about if I charge someone who really deserves it (a felony crime of violence, domestic violence, drunk driving, or a career criminal on his 73rd felony) is that even if it gets plead down, they will still get a massive legal bill at the end, no matter the criminal penalty. Or they can go with the public defender and get an insufficient defense by an overworked, underpaid, warm body with a law degree.

    That places a heavy moral burden on law enforcement though to charge people appropriately and only when they really deserve it, otherwise even if they win the case, they still lose, especially if they are just scraping by financially before they get charged.