Houston criminal defense lawyer Stan Schneider left a series of comments on former Harris County District Attorney candidate Kelly Siegler’s post There’s No Such Thing As ‘Closure’ over at Women in Crime Ink. His last comment in the thread ended with:

Remember – it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison.

To which Levi Page, administrator and message board operator of the War On Crime blog, replied:

Well I disagree, with that last line "it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison."

Those 9 guilty people will be let out and most likely continue being a criminal, especially if they are a sexual predator.

Do the math.

A fine point Levi, even if not justifiable under our system of laws, because it illustrates a criminal defense lawyer’s worst fear of how a juror may literally mathematically calculate the effect of their decision.

Take a 12 person jury deliberating on an aggravated sexual assault of a child case. They know – instinctively, even if it’s not discussed openly – that there are 4 possible outcomes:

  1. Innocent defendant is acquitted and goes home.
  2. Innocent defendant is convicted and goes to prison.
  3. Guilty defendant is acquitted and goes home.
  4. Guilty defendant is convicted and goes to prison.

Options #1 or #4 are everyone’s preference. No jury wants to be involved in a case with either a #2 or a #3 outcome.

But they’re not sure. Not sure whether the defendant is guilty or not. Unsure of his innocence or his guilt, surely an internal debate on which is worse – #2 or #3 – starts in their mind.

And this is the crux of Levi’s argument. Let’s do the math.

Option 2: Innocent person is convicted and sent to prison. One person unjustifiably suffers horrible consequences

Option 3: Guilty sexual predator is initially ‘caught’ and accused, but skates. He not only goes home, but feels even more impowered to continue violating innocent children, again and again and again. Many people unjustifiably suffer horrible consequences.

Even if you throw in the innocent defendant’s friends and family members to up the number of wronged persons in Option 2, that has to be counterbalanced by an equal number of friends and family of the children who will be preyed on in the future. 

I’m not saying this happens in every case, or is discussed out loud in the jury room when it subconsciously enters the thought process. 

But taking Levi’s argument to its logical conclusion? It’s better that one innocent go to prison than one guilty person goes free. One freed guilty person will continue to victimize several future innocents. Accordingly, even a one to one ratio of innocent to guilty in prison is an acceptable rate.

  • Wrong. There are a couple of problems with the calculations. In addition to the moral issues, even the math doesn’t actually work.

    In option #2, what’s left out of the math is that the guilty person still skates — and it’s even worse than in option #3. In option 2, the guilty person skates and nobody knows, so nobody is alert to potential danger. In option 3, the guilty person skates, but it’s possible for police/society to be alert to the danger.

  • Pete:

    I hope you’re on my next jury panel.


    P.S. Keep this sort of nonsense to yourself during voir dire, please, or the state will use a preemptory on you.

  • Jeffrey Deutsch


    Good point – if it’s the kind of case where we know a crime has been committed but we’re not certain who did it. An example is a bank robbery by a masked bandit.

    With child molestation and many other types of cases, the debate is what happened and whether it’s a crime, not who did it. So if the defendant is innocent, there is no guilty person to skate.

    In any case, I – a staunch advocate of the death penalty (including for child molestation) and for tougher punishments in general – agree with your implicit concern, Jamie and Pete.

    A threshing machine is run only with much stronger safeguards than a lawnmower, and the State machinery must be encumbered by due process guarantees – including a strong presumption of innocence. A State that can send one innocent person to prison or the electric chair can do it to anyone. A criminal has a much more limited reach.


    Jeff Deutsch

  • Jose Otero

    I think that 16/21 years of age should just be left alone regardless of what the nature of the situation may be there still kid’s. Now days you have 40-25 years of age dating that’s a big equation is it who nows i think some people in the judiciual program has to understand and not let the future go down the drain because really is was going on?

  • Mike

    You would’nt feel that way if you were the innocent guy sent to prison.
    A guy who has planned his familys life out and works everyday is now put into the law system and ruined for life. His family suffers also. So not only does your one innocent guy in prison then one guilty guy free is absolutely bull since the innocent guys family all suffer just like the victims family and the justice is still not correctly served. A guilty guy still walks free. And yet that is ok with you. Thats the same as someone rapes your sister and you take vengence and just because the guy is black and you dont know where he is doesnt mean kill another black man who didnt do it. This kind of mentality is why the american prison system is the most corrupt and overloaded. I dont wish this on anyone and would like you to become face to face with consequences you had nothing to do with. Im sure your attitude will change.

  • Jeff

    By that logic everyone should be put in prison immediately. Since each guilty person not imprisoned will victimize many others while free, everyone will suffer anyway. Of course, if we are all in prison, that’s the same as nobody in prison. So let’s put all the innocent people in jail so the predators can get to them easily, at least this will eliminate wasteful police-dodging.

  • deborah mccauley

    First I want to say its a shame in this country you can’t trust the legal system,that you were trained from childhood to trust!My,son was one of the unfortunate,He was accused by his brother through hear say only of a 9 year old child.Arrested,taken out of state illegally by us marshals,who didn’t have the right paperwork.Charged A Bond set so high a person can’t afford,to get someone out.The attorney Fees are SO high a person can’t afford proper fair treatment treatment in the halls of JUSTICE!You can’t afford a 25,000.00, retainer plus hidden fee’s.So,you get an attorney that doesn’t care if your convicted or not.My son was told by his attorney not to say a word,couldn’t stand up for himself,had to sit quietly and get put away for a crime he never committed,140 years,by a bunch of uneducated giggling people who acted like they were there for a bingo game,not thinking about someones life.How sad.IT’S ASHAME THAT IN THIS COUNTRY ANYMORE,YOUR CONSITERED,GUILTY AND ARE NOT INOCENT,WHAT HAPPENED TO JUSTICE? SO,ONE SIDED, IF YOUR POOR THEY WANT TO PUT YOU AWAY.

  • deborah mccauley

    My sons life was taken away,unjustly!He had absolutely no representation,was never able to mutter one word for his own defense,this is not justice,it is putting inocent people in arms way!!!WAKE UP!!!I,am apoor women and my son is gonna die for acrime he did not committ!!!I,Need Someone to “PLEASE REACH OUT FROM THE BOTTOM OF YOUR HEART AND HELP US