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Is it better for the guilty to go free than to risk a wrongful incarceration?

by | May 25, 2023 | Wrongful Convictions

One of the most well-known and frequently quoted legal maxims is this: it is “better that ten guilty persons escape than that one innocent suffer.”

That was written by Sir William Blackstone in 1765, but it is far from the first or only expression of the idea. Internationally, many scholars, lawmakers and leaders have agreed that it is better to have a criminal justice system that errs on the side of freedom.

Recently, however, a poll revealed that 60% of Americans surveyed considered wrongful acquittals to be just as bad an outcome as wrongful convictions. Furthermore, people who believed that were more likely to convict.

We cover wrongful convictions on this blog because we believe it is far better for the guilty to go free than for an innocent person to be wrongfully convicted.

Unfortunately, innocent people are being convicted all too frequently in America’s criminal justice system. In the vast majority of wrongful convictions, that meant the real perpetrator went unpunished, often later committing new crimes. There were a record 238 exonerations in America last year, according to the National Registry of Exonerations.

The nonprofit criminal justice newsroom The Marshall Project summarized a few of those exonerations in a recent article. Some of the main reasons people get wrongly convicted include:

Mistaken eyewitness testimony – often, eyewitnesses are pressured into identifying someone. Sometimes they recant their testimony later.

Brady violations – police and prosecutors are supposed to turn over all their evidence to the defense before trial, including anything they know that could help the defense. Sometimes, they withhold that evidence.

A rigid, unresponsive system – in one case, a man was convicted of raping his stepdaughter, but she never even accused him. She wrote over 100 letters to the district attorney’s office saying that her stepfather was innocent, but nobody would listen.

Predatory policing – Chicago’s main prosecutor, the Cook County State’s Attorney’s office, led the nation in exonerations last year. Since 2017, 212 convictions have been overturned because it was shown that some officers were extorting money from and planting evidence on the residents of the Ida B. Wells housing projects.

At every point in the process, the system failed these exonerees. At every point, the system favored getting a conviction over protecting the innocent. We need to step back and make sure we’re truly treating every defendant as innocent until proven guilty beyond a reasonable doubt.

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“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

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