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.

Damned if I Know

This round began, I guess, with Mirriam Seddiq who took a suggestion from law student Laura McWilliams and wrote about The Law, a Love Affair of Sorts.  But it really got going when Laura posted her two part response (here and here) and then three posts on why she plans to be a prosecutor (1, 2, and maybe).  Mark Bennett wrote a post about it.  Scott Greenfield spun off some thoughts.  The commentariate (blawgers and others) has been going strong on Laura's blog.

Here's the very short version.  She feels desperately for those she identifies as the victims of criminals.  She is a multiple victim of criminals herself.  She might like to be a prosecutor, but because she knows that prosecutors work for the government, she isn't sure.  She respects criminal defense lawyers but can't imagine being one because they represent the criminals rather than their victims.  

I love the internship I have this summer. In my work at a domestic violence organization, I’m not standing at either the table. I’m mostly sitting. I’m sitting with weakened individuals as they struggle to find strength in a legal system that’s not created to offer all that much. (See my previous post, No Justice.) I sit with them as they organize their divorce and custody paperwork. I sit with them as they fill out motions for restraining orders. I sit with them as they wait in courtrooms for their cases to be heard. When I’m sitting with a woman who has been abused by a person she loves, and I look up at that judge and that bench, I never imagine that I’ll be standing on the accused’s side of the courtroom. It will never happen.

Mark Bennett, in a comment, pointed out that victims often end up on the other side.

There is often no clear distinction between victim and the victimizer. Most now-victimizers once were victims; most abusers have histories dominated by abuse, sometimes horrific.
Not every victim can go to law school to seek retribution as a prosecutor; most act out in other ways. And so the cycle continues.
When that abused woman finally cracks, stabs her loved one 108 times, and buries him in the back yard, she may well wish you were standing on her side of the courtroom. And so may you.

Laura acknowledged that the abused woman might do that, but denied that she'd defend her.

Such stories are sad–of course they are. But, no, I’m not entirely sure I’d want to be standing at her side “when that abused woman finally cracks.” I would want the best defense lawyer in the world standing beside her at that point. And if I were prosecuting, I’d be scrambling to make a deal.

I fully accept Laura's sincerity.  But I worry.  See, sincerity is dangerous.  

One of the first things I learned when I started representing people is that clients lie to their lawyers.  All the time.  They lie about trivial stuff.  They lie about really important things.  Sometimes their lies leave us scrambling when we learn the truth during trial or at sentencing.  Often, the lie is "I'm innocent."They believe that we'll work harder for innocent clients.  (They're wrong.)  They believe we only want innocent clients.  (They're really wrong.)  They believe we'll believe them.  (Often they're wrong.)

Then I learned that everyone lies on the witness stand.  They'll lie about trivial stuff or about major stuff.  But they all do it.  The first lie is "I swear to tell the truth."

And it turns out that people lie to police and prosecutors and other lawyers just as much as they lie to me and juries.

First rule: I never really know what happened.  None of us do.  We might know what didn't happen. (Some things are physically impossible.)  But what actually did?  Only the people involved know for sure.  And they might be wrong.

Which brings me back to Laura, who's eager to stand up with those who are victims of criminals.  And sincerely knows who they are.  Except, of course, she doesn't.

Right now she's working as an intern at a domestic violence organization.  There is horrible domestic violence in this world.  People (mostly but not exclusively men) inflict almost unimaginably brutal physical abuse on their spouses and children and parents - all the while proclaiming their love.  Not only does it happen, it happens with remarkable frequency.

We have, and need more and better, shelters for the abused.  We have, and need more and better, services for the abused.  We have, and need more and better, advocates for the abused.

But there's another problem.  Domestic violence, like domestic sexual abuse, is easy to allege.  And too often, far too often, the allegations are false.

I'm not minimizing the problem.  I'm pointing out a separate one.  We believe, we choose to believe, every allegation of abuse - physical, sexual, psychological.  The alleged bad guy has his name in the papers and on television.  The self-declared victim is anonymous to protect her (mostly, but not exclusively, her).  

And Laura stands up with her.  Rightly, for she needs a person on her side.  But only if.

Except that to the sincere, there's never an if.

Look, I've represented the ones who finally struck back.  One example.  There was the woman who suffered more than five years of abuse.  Finally, in self-defense, she shot the man who was beating and choking her and would have killed her.  That's a true story.  I believe it.  The jury didn't.  When the prosecutor started to make light of it during oral argument in the court of appeals, one of the judges said (I'm paraphrasing; it was a long time ago),

Stop that.  She was abused by this man for five and a half-years.  Now she's been abused by the legal system.

Noble words, though he voted to affirm her conviction for voluntary manslaughter.

But for all that, I don't know what happened.  Her trial lawyers don't know.  The prosecutor didn't know and neither did the judges on the court of appeals.  Only she knows.  If she does.

I was proud to represent her.  I wish I'd been able to undo the damage her trial lawyers caused.  But I don't know what happened.

Nor does Laura when she stands up with those identified as victims.  The ones whose side she wants to be on.  The ones she'll be sure are telling her the truth.

And some, probably most, of whom will be.  Or something close to it.  

Of course, close really only counts in horseshoes.

You Say You Want a Revolution? Nah.

Consider these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

That's how I started last year's Fourth of July post (though I didn't put the last sentence in italics last year).  It's not a bad way to begin this year, either.

And so with revolution in our souls, let's look one more time (I'll try to hold myself in check for a bit and at least consider having it be the last time) at the Generalissima, Elena Kagan - about as non-revolutionary a choice as there could be for the Court.  No surprise that the guy who eschews excitement would choose a nominee who exudes none.

She could end up voting my way on every issue to come before the Court.  (I'd be surprised, really I'd be shocked, but it's theoretically possible.)  I still wouldn't think it was good to put her on the Court (though I'd like her votes).

I want a lawyer who's actually practiced law.  I want someone who's stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation.  I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk.  Someone who actually knows something about risk.  Someone whose trajectory offered something other than a direct line to where she is.

I want a justice who understands constitutional rights both from the ground up and from the top down.  The Generalissima gets them, insofar as she does, only from the top down.

But then, I get the idea of the Declaration of Independence.  It's a call for revolution by a bunch of wealthy landowners (the same sort who brought King John to heel at Runnymeade and made him sign Magna Carta).  [It's no surprise that having established their republic, these same men were eager to protect "life, liberty, [and] property.]  And yet, there was more.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

No small thing, that.  And truly at risk.

The Declaration is not a blueprint for government. (That's the Constitution.)  It is, as I said last year, "a campaign speech for overthrow of tyranny."  And it's one of our sacred documents.  Think about that.  Then look at the Supreme Court.  

Is there even one of them who'd sign?  Who'd risk life, fortune, honor?  One of them for whom honor itself might be something sacred?  

Look at Elena Kagan.

Happy Independence Day.

Sigh.