Wednesday, June 1, 2011

Because Even the Innocent Are Guilty

I talk a fair amount about innocence here.  Mostly it's about how this guy was convicted and now there's some substantial evidence of innocence that the system doesn't want to look at because
  • Hey, we don't make mistakes.
  • Hey, mistakes happen but they're rare and who really knows and we can trust the jury.
  • Hey, easy for him to say, but the evidence at trial was overwhelming.
  • Hey, maybe he's innocent, but we can't just go and reopen cases just because people say we made mistakes.
  • Hey, finality.  You know, finality.  
  • Hey, get over it.
  • Hey, not good enough.
Or some variant that I missed in that litany.
Sometimes it's about how we actually let the guy out of prison but still won't give him his life back or any recompense for the years. 
But occasionally its other things.
Consider the Alford plea.
The name comes from North Carolina v. Alford.  Alford was facing the death penalty for a murder he said he didn't commit.  His lawyer investigated, concluded the evidence was overwhelming, and convinced him to plead guilty to second degree murder which took death off the table.  Alford entered that plea but said, under oath and while he was pleading guilty, that he was in fact innocent.  The Supreme Court said the plea was valid.
Alford pleas can be useful.  The factually innocent client facing overwhelming evidence of guilt (it happens) is offered a good deal but the requirement is a guilty plea.  Sometimes the client wants to  take that deal, which can be a wise choice, but will not lie and say he's guilty.  Or cannot, for one reason or another, admit guilt but the deal is too good to pass up.
See, there's a problem though.  Someone raised it the other day on a criminal defense listserv.
Client took an Alford plea, swore he didn't commit the crime but that he was pleading guilty to avoid the risk of a much worse sentence should he be found guilty as charged.  The judge accepted the plea but then gave the harshest possible sentence because the client hadn't accepted responsibility for the crime.  After all, if you don't accept responsibility, how can you be rehabilitated?
But wait.
How do you accept responsibility for a crime you didn't commit?  How do you show remorse for actions you didn't take?

That's always a problem if you go to trial.  But when you plead guilty, you're supposed to be acknowledging all that.
Except, of course, if you plead guilty while saying you're innocent.
And of course, if you happen to be innocent.
As it's a problem with pleas, so it can be a problem with probation (or Ohio's current version of probation - community control).  Sex offenders, for instance, are commonly required to attend and complete sex offender therapy classes.  A requirement of those classes is admitting and taking responsibility for what you did.  If you didn't do it, you can't acknowledge and take responsibility.  So you flunk the class and may have your probation revoked.
It's where this started off.  The system isn't interested in innocence.
Oh, sure, there's that thing about how it's better that ten (or a dozen or a hundred or whatever your particular source for the maxim chose) guilty people go free than that a single innocent person be convicted.  But you know, we (that's the generic "we" rather than me and at least some of you reading this) don't believe that.
Our commitment is to guilt.  Charge someone, anyone, with something.  He's probably guilty.  Hell, we're all guilty of something, lots of things, really.*   Lock everyone up.  Then we'll all be safe from them.  (Though if we lock everyone up, we'll be locked up with "them." But I digress - or maybe not.) 
And so it is that, as Scott Greenfield explains, untested and hotly disputed allegation qualifies not just as evidence but as proof beyond question.  And as Brian Tannebaum revealed, there was no need to bother actually learning if that funny looking stuff was marijuana before arresting Robin Brown in front of her customers, taking her to jail, doing a body cavity search, and the like.  And when it wasn't weed?  Hey, shit happens.  We didn't convict her, so that proves the system works.
There's nothing much new in any of this.
A couple of hundred years ago, we set up a system of limited government and refused to ratify the Constitution without a promise of a Bill of Rights.  Why?  Because at the time, we were more scared of the government than we were of each other.**  Turn that on its end, make us more scared of each other, and you can see how we've lost the thread.
Because there's always some risk.
He might have done it.  Or wanted to.  Or might yet.  Or if not that, then something.
So what's the harm.
Innocence?  Not since they ate that fruit in the Garden of Eden.
Former Attorney General Ed Meese once said it all.
If a person is innocent of a crime, then he is not a suspect.
Throw the book at 'em.
Serves 'em right.

*Mirriam Seddiq's great tag line
We are all not guilty of something. . .
is true, of course.  But it takes a criminal defense lawyer (or maybe a theologian) to think it matters. 
** Actually, that's more scared of the federal government.  The Constitution did almost nothing to regulate the state governments, but the states were smaller then and people (by which I mean people who counted, by which I mean white, male, property owners) felt like they could control their states to ensure that people who counted (by which I mean white, male, property owners) wouldn't be abused.


  1. Where do these prosecutors come from? Do they teach lessons in applied evil in law schools? Do these lawyers and their law professors even know the difference between right and wrong? I fear that between our education system and our justice system this culture is doomed, no matter what.

  2. Applied Evil 101? Has a certain ring to it.