This article was originally published in an issue of the La Quinta Gem:

“Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” – Judge Learned Hand, 1923 (United States v. Garrison, 291 F. 646). Unfortunately, that dream is all too real for too many.

It had long been assumed that our justice system always gets the right result. The fact that the system has a certain “error rate” was exposed with the advent of DNA testing in the 1990s. Defense attorneys and journalists starting looking into criminal convictions where the results seemed suspect. This provided a window into the criminal “justice” system by presenting a new way to review old cases and test the accuracy of the jury verdicts. At present, DNA exonerations have turned into a nonprofit mini-industry, with the result being several hundred exonerations. Innocence projects across the country have also started looking into other areas of wrongful convictions. The University of Michigan Law School maintains a National Registry of Exonerations, which currently lists 1,220 exonerations.

Notably, most exonerations involve death penalty cases, other homicides and serious sexual assault cases. The nature of exoneration work necessarily involves these types of cases. The work is very time consuming and the cases will typically take years to investigate and then litigate through the court system. The vast majority of people convicted of crimes would have completed their probation or prison terms before a challenge to a lower-level criminal conviction would wind through the courts. Also, there is no right to an appointed attorney after direct appeals in lower-level cases, and the non-profit groups that do this kind of work can only take a small percentage of the cases referred to them, so they will start with the most serious cases and only take cases where there is some scientific evidence, such as DNA, to be tested. Others are likely out of luck. Accordingly, these 1,220 cases on the registry almost certainly represent only the smallest tip of an enormous iceberg of wrongful convictions, each of which represents an innocent person wrongfully convicted and imprisoned.

Because the exonerations that have received the attention of the innocence projects arise from only that narrow category of cases where an individual is serving life in prison and where there is actual scientific evidence to test, we will never know how many individuals have been wrongly convicted in those lower level cases that never receive this level of scrutiny. These non-homicide, non-sex cases certainly represent well over 90% of the cases in the system.

Groups have studied the reasons that innocent individuals are convicted, and one of the most significant reasons is that their counsel was ineffective, incompetent or overburdened. Those attorneys appointed to handle these high level cases are expected to be the attorneys most capable, yet oftentimes resources are too slim or incompetent lawyers are not properly supervised, and innocent people are convicted because their attorney did not investigate, consult experts, or simply was not capable of handling their case. So these substantial problems of reliability at the most serious and elite levels of the justice system leave serious questions about the reliability of the system to get things right in less conspicuous cases.

The best way for a person accused of a crime to avoid a wrongful conviction is to hire a good criminal defense attorney. There is no safety net in the system, so you need the tools necessary to get through, which only begins with a good attorney.