I have criminal trials on the brain this week with Dominique Strauss-Kahn and now Casey Anthony dominating the non-political news.  But, as I said in a previous post, I'm not a crime news junky.  I am, however, very interested in procedure and civil liberties.  When something like the DSK case happens I almost immediately wonder, "what happens to the accused when they are not fabulously wealthy?" Which is the topic of my column for The Daily this week.

Imagine you were the more typical person taken into custody in New York City.  You can't make bail, so you spend the entire time awaiting trial at Riker's Island.  You have an overworked court appointed attorney who, while competent and well meaning, does not have the resources to conduct an in-depth investigation into the background and circumstances of your accuser.  Even if you hire your own attorney, you're not able to afford the best of the best.  You can't fund a counter-investigation that will match what the Manhattan DA can do.  You, being in Riker's, are of little help to your attorney.  It's hard for your attorney to even come see you.

Meanwhile, you're in jail.  Unless you have a very understanding employer, your absence for 6 weeks or more is just not feasible.  Maybe you get unpaid leave.  But what about the family at home?  How do they make ends meet?  What I found during my research for this column is the admission that thousands of innocent people plead guilty to minor crimes every year in America because the pre-trial ordeal is unbearable for people who aren't rich.

And do you know what the legal system says about that?  It says, and this is a quote from a genuine legal scholar, that "defendants have no right not to be inconvenienced by the trial proceedings."  As if losing one's liberty and income is simply a nuisance.

I read numerous scholarly legal papers but the one that spoke to me most was here.  The author, University of Chicago Lecturer Joshua Bowers, argues that the problem of innocent people plea bargaining to crimes they didn't commit isn't plea bargains, per se, it's the false arrests that lead to false charges.  Most crimes don't involve wealthy financiers like DSK or feature especially dastardly acts as in the Anthony trial.  Most crimes are small and petty.  Police, says Bowers, often round up the "usual suspects" when they've got a crime to solve.  That means people who live in high crime neighborhoods and have been arrested and even convicted before.  They have limited financial resources and nobody gives these people the benefit of the doubt.  Judges set high bail for them, if they offer bail at all.  They are involved in low priority cases, so they grind through the system slowly.  At some point the prosecutor says they'll accept a guilty plea for some minor offense, the sentence of which would already be covered by the time served awaiting trial.  Oh, and they're reminded that the judge, who doesn't believe in their innocence, probably won't appreciate their insisting on a full trial so maybe they should weigh the potential costs of losing in court.

It strikes me that there are a lot of ways an innocent person can get themselves arrested in America.  If you hang out at a bar where people are doing or selling drugs, you could be rounded up.  If you attend a protest, you could be rounded up.  Innocent and legal conduct on the Internet can get you taken in.  If DSK is to be believed, having consensual sex with some one you don't know very well leaves you vulnerable to criminal accusations that the authorities will treat as credible (I think that's damned rare, but it's possible).

Thousands of innocents plead guilty because the system is so stacked against them that they can't, or won't dare to, defend their innocence.  Shouldn't we be doing something about that?