The Prisoner's Dilemma

A couple of years ago I got involved in a high profile murder trial. The murder happened in a city where economic disparity, racism, and religious tension run high. The prosecutor had been through a political firestorm due to several other high profile cases that had been horribly investigated and claims of corruption rang throughout the trials. The news in this city is awful, with a murder on nearly every night. When my client's loved one was killed, similar crimes had been occurring in the area. There was no physical evidence tying my client to the crime, and the "motive" the officers attributed to the defendant was thin at best. I spent a year prepping for the trial, helping catalog over 30,000 pages of discovery. I went out there for the trial, but had to come back for my law school graduation. I watched the verdict via a live feed.

It was a hung jury. I was devastated but it was better than a conviction. You see, my client is innocent. I feel it in every fiber of my being. I see the facts. I see the evidence (or lack thereof), and I see the tricks and manipulations of those involved in both the investigation and the prosecution. They immediately committed to re-try the case. Now, it's been a year, and the second trial is due to start.

Everyone is tired, including my client, who has been in custody since 2010. Waiting. Hearing the voice of a child, who barely remembers the time when the family was whole, growing up on the other side of the country with grandparents who try to keep hope alive.

The last hung jury case in the jurisdiction (also totally based on circumstantial evidence) ended in a conviction the second time around. The judge in our first trial let in horrifically tainted evidence. He refused to grant a mistrial despite a Brady violation so prejudicial and so game-changing, that the entire theory of the case changed overnight. While there is a new judge this time around, I have been up nights wondering if this new trial will be any less corrupt. I am not optimistic.

If you haven't heard the term, the prisoner's dilemma is related to an innocent person being forced to make the choice of whether to admit to something he or she did not do, in order to get out of prison. Parolees are required to own up to their crimes, show they've been rehabilitated while incarcerated, and commit to being better people on the outside. How can an innocent person do this? If they admit to the crime, they lose their innocence forever and the world will always consider them guilty. If they don't, they are not eligible for parole in almost all cases. For sex-related crimes, required treatment programs can never be completed because if you don't admit you have a problem, and you are denied participation.

How can you choose to save your life by admitting to a crime you did not commit in order to get out (or avoid the death penalty)? What can you do then to save your soul?

So the prisoner's dilemma is waiting, hoping that someone will come along with the proof you need to be exonerated. Many wait forever, or die waiting. Many are executed and then later proved innocent.

With the new trial starting next week, I am certain that my client is considering these same options, facing this same dilemma. It might not be too late to put the family back together. To teach the child to drive a car. To see the child graduate high school. Get married. Have grandchildren.

If you look only at the math, it seems like an easy choice. Get home. Get safe. But what will the cost of this choice be? Forever labeled a felon. A killer. And no one will ever look for the person who actually tore the family apart in the first place. Case closed.

I may never sleep again.