How an Innocent Person is Convicted, Part 4: The Rule of Silence

The business of defense attorneys is mostly one of cutting deals. Nationally, about 85% of cases are plea-bargained. Of those that go to trial, contention often depends upon issues of mitigation rather than innocence. Defense attorneys will tell you that the scariest case for them is the one where they are defending an actually-innocent person. To lose such a case is to lose everything. Yet, their sharpest skills--the ones they use daily--are those for negotiating, not those needed for winning.

Defense attorneys are worriers. Theirs is the job of wondering the "what-if's." What if the client does something unrelated but stupid while the case is under review, what if some crackpot or old enemy shows up with an incriminating comment? What do the police know that that defense doesn't know?

Defense attorneys advise clients to play it safe. Keep mum, avoid the press, don't talk to anyone about the case. Todd's attorney told us not to talk to him about what happened that night. "There's no parent confidentiality privilege," he said.

But how could we not talk?