Wednesday, July 7, 2010

When Innocence Isn't Enough

I grew up watching Raymond Burr as attorney Perry Mason.  Every week on TV he'd take on another case, defend another innocent person charged with murder.  Every week on TV, he'd prove his client innocent, usually getting the actual killer to confess during cross-examination or to jump up in the courtroom gallery and confess.
I've been doing this work for a lot of years now.  I've never seen an innocent man cleared when the guilty party jumped up in court and confessed.  I've never heard of it happening in the real world.
Frankly, most of the people who are arrested and charged with crimes aren't all that innocent.  Oh, they may not have done just what they're charged with (there's a lot of overcharging, for leverage, out of meanness, because they can), but they've mostly done something reasonably close.  That's a good thing, of course.  You wouldn't want to live in a society where most people who are arrested didn't do it.  Nor would I.
But the factually innocent do get arrested.  They do get charged.  Sometimes they get convicted.  
When we get the charges dismissed, get a not guilty, get a conviction reversed, it's always a great feeling.  When we do it for someone factually innocent, it's even better.
Still, I don't know any criminal defense lawyer who wants to be Perry Mason.  None of us relish the prospect of representing the innocent.  
And stressful as it is, the law makes it worse.  That presumption of innocence you learned about in Fourth Grade is a sham.  One judge I know used to begin every voir dire session by telling the prospective jurors,
None of us here believes the defendant is guilty.
That's nonsense, of course.  If the prosecutor doesn't believe the defendant guilty, he has no business prosecuting.  And, frankly, the judge and the court reporter and bailiffs and sheriff's deputies, they all think the defendant did it.  So, in all likelihood, does defense counsel.  And certainly the jurors begin believeing it.
So the presumption is a sham.  And it's short lived.  Once there's a guilty verdict, it's over.  If the jury says the defendant did it, the burden formally shifts to the defendant to show why he should get some relief.  And the law's stacked against him.
The trial verdict is presumed correct.  The appellate courts twist and bend and fabricate to affirm it.  And then there's AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.  The law was enacted precisely to make it harder for people convicted of crimes (and in particular those sentenced to death) to get relief.  It's rigid, authoritarian.  AEDPA requires federal courts to acquiesce in constitutional error because, hey, why not?  It's just too much to expect, or require, the state courts to obey the Constitution.
And, of course, AEDPA has no innocence exception.  Nor, perhaps, does the Constitution.  Here's Antonin Scalia bemoaning
the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate.
As I write this, the Troy Davis hearing is over.  Did he provide sufficient proof of his innocence?  And if so, then what?  Briefs are due later today.
The hearings on whether innocent people are executed are due to begin in November before Judge Fine.
And yesterday, the 9th Circuit (yes, that 9th Circuit) said that it's not enough to be innocent.  You have to assert it in time.  Otherwise, AEDPA says, you should take the punishment you don't deserve.
We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.
That's Lee v. Lampert. The court doesn't even throw a sop and suggest it's bothered by the continued imprisonment of the innocent Richard Lee.  
After all, he filed months late.

h/t Mike at Crime & Federalism.


  1. Did Lee ESTABLISH actual innocence? I mean, can he PROVE actual innocence? Or is he just saying that he has an actual innocence claim?

  2. The District Court, which heard his evidence (though the court of appeals says it shouldn't have) said that he proved it.