07/25/2014 04:16 pm ET Updated Sep 24, 2014

When the Guilty Are (Wrongly) Acquitted

We read about them all the time, indeed too often: the people who are convicted for crimes they did not commit. There are so many variables: people who can't afford bail when the prosecutor offers them "time served" for a guilty plea, while the judge tells them they will have to wait another month -- in jail -- for a trial; some who are convicted upon invented evidence, or because exculpatory evidence perhaps somehow disappeared; some who plead guilty because they believe the evidence amassed, even if not true, is overwhelming and they are better off taking a plea. And, as we read about all too often, there are the innocent people who are on death row. Indeed, according to the Death Penalty Information Center, since 1973, 144 men were exonerated after having been sentenced to death.

The Innocence Project's findings show that the leading causes of wrongful conviction are incorrect eyewitness identifications, improper forensic evidence (317 people have been exonerated based on DNA evidence alone), false confessions, and informants who may have been "incentivized" -- perhaps paid a reward for identifying the defendant -- to provide information that may or may not have been presented to the defense or, importantly, to the jury.

We must talk about the wrongful conviction of innocent men and women, to remind ourselves that we need to look closely at a system that is flawed and will sometimes fail.

But in that vein, don't we also need to look at the consequences when those who may actually be guilty are acquitted, particularly when they are repeat offenders guilty of violent crimes? Don't prosecutors have to be -- within the bounds of the law -- unrelenting, even pertinacious, when going after someone who is, assuredly, going to kill again?

In his compelling memoir, Run, Brother, Run: A Memoir of a Murder in My Family (Scribner, 2013), accomplished Texas/New York lawyer David Berg describes the violent death of his brother Alan in 1968, at the hands of Charles Harrelson, a killer for hire (and, yes, Woody's father). Whether Alan was murdered as payback because he and his father owed money to a disgruntled former employee or because Alan had run up substantial gambling debts, it doesn't really matter!

But Harrelson was acquitted, at least in part, Berg tell us, because the poorly prepared prosecutor, Ogden Bass, was severely outmatched by the formidable and legendary Percy Foreman. Now, to be fair, most prosecutors were outmatched by Foreman (whether you admire his skills or hate him as embodying all that's wrong with lawyers who defend criminals, as Berg clearly does). It is said that Foreman represented 1,500 people who were eligible for the death penalty, that fewer than half went to trial (the others were either never indicted or pleaded to a lesser crime), and that of those 750 trials, he lost only 53, with only one of his clients having actually been executed.

But Berg, with a gifted trial lawyer's acuity and a brother's love, walks us through the steps that a more able Bass could have taken to humanize his brother, to make the jury appreciate the warm, caring and, yes, flawed, man that he was. Berg brilliantly weaves into his narrative the opening statement that Bass should have made and the closing argument that, had it been made, would have highlighted the flaws in Foreman's presentation. Berg describes for us Bass' missed opportunities for effective cross-examination and reminds us of the famous words of our brilliant jurist/evidence expert John Henry Wigmore, author of the treatise on evidence, that cross-examination is the "greatest legal engine ever invented for the discovery of truth."

Harrelson was a murderer for hire; acquitted for the murder of Alan Berg, he remained in jail awaiting trial for the 1968 murder of another man. In this trial, however, while Foreman again represented Harrelson, there was a different prosecutor, and Berg shows us the ways in which this prosecutor was prepared and strategic. Following a mistrial, he had Foreman's witnesses investigated; Harrelson was found guilty and sentenced to 15 years. Yet when he was released in 1978 for "good behavior" after having served only five of the 15 years, he promptly murdered U.S. District Judge John H. Wood Jr. of Texas for a fee of $250,000 (far more than was reported as the fee for the murder of Alan Berg). Harrelson killed Judge Wood, notorious for dispensing harsh sentences, at the request of a drug dealer who was scheduled to be tried before him.

The difference here: This was the first time a federal judge had been assassinated in the 20th century (two others were later killed), and the FBI reportedly spent two years, 82,000 man hours and approximately $5 million to bring Harrelson to justice. And the FBI's efforts worked: This time Harrelson was convicted and sentenced to two life terms in prison, where he died.

Should it have taken the murder of a judge to so fervently go after Harrelson? He was a killer through and through. And while there is no question that career killers are sometimes acquitted, shouldn't prosecutors take those extra steps (those within the bounds of the law) to make sure that they have done everything possible to see that these violent criminals -- who will surely act again -- are convicted?

While it may seem apostasy for a criminal defense lawyer to encourage prosecution offices to throw the full force of police power against a criminal defendant, even one accused of heinous crimes, the truth is that insisting on vigorous prosecution makes the system work better for all -- including defendants who should be acquitted, or never indicted in the first place. Vigorous prosecutions often cause the system to separate the wheat from the chaff and thus result in the prosecutions that are in fact brought being taken more seriously.

Can we honestly be certain that Judge Wood would still be alive had Alan Berg's prosecutor been more adept at his job? Certainly not. But reading in the memoir of Alan Berg's surviving brother about the manifest injustice that appears to have occurred should be an eye opener for all of those who read it.

Injustices happen not only when the innocent are convicted but equally so -- sometimes more so -- when the guilty are acquitted.