So What's the Big Deal about Guilt, Anyway?

"We are all," Mirriam Seddiq says in the tag line to her blog, "not guilty of something." Which is, of course, true.

I, for instance, although old by many people's standards (certainly my children think I am), am wholly, factually innocent of the assassination of the Archduke Ferdinand and the onset of the first world war.  Nor did I have anything to do with the kidnapping and murder of the Lindbergh baby.  My evidence is pretty good.  Those events both occurred before I was born.  (Mirriam is younger than I, so she has even better claims to being not guilty of those events.  Your mileage, as they say on the internet, may vary.)

But once the courts are involved, innocence becomes more problematic.

Ask Brett Hartman who was murdered by the state of Ohio yesterday despite his 15 years of repeated avowals that he didn't do it.  Lots of folks believed him, though the evidence of his factual innocence was less than absolutely compelling.  The Parole Board didn't, though.  How dare he not express remorse for killing Winda Snipes, a crime he claimed not to have committed!  (Yes, that's as ridiculous as it sounds.)  The Board said (for the third time) that he should die.  The governor concurred.  The courts let it happen.  But did he do it?

Who the hell knows?

What about Cameron Todd Willingham?  He has a great innocence case.  Oh, but he's dead now,
murdered by the Great State of Texas.

Kris Maharaj is still very much alive. When I wrote about him in the review of Clive Stafford Smith's 
The Injustice System, I several times referred to him as "almost certainly innocent."  Clive's more straightforward.  He refers to his client without the qualifiers, calling him simply "innocent."  But then, his book is in large part advocacy.  And, of course, Kris is his client.  He convinced me, but I don't have a horse in that race and have, therefore, the luxury of an honest

Who the fuck knows? 

Because when you get rit down to it, who does?

But to say that innocence is iffy, that proving "it wasn't me" is tough unless you have DNA - and maybe even then - doesn't really address the issue.  Because the question is how sure do you have to be.  And when.

We declare that the defendant is innocent unless and until the government proves his guilty by proof beyond a reasonable doubt - however much proof that might be.  But then what?

It's inevitable that there will be mistakes.  However you quantify, however you evaluate, whatever standards you use, some number of factually innocent people will slip through the cracks into the maw of our penal system.  Perhaps the number (and therefore the percentage) is infinitesimal, say 1 in 10,000 (nobody actually thinks it's that low).  Perhaps it's rather large (you can define for yourself what that might mean).  It's some number.  But what of them?

Friendly fire.  Collateral damage.  Can't make an omelet without breaking some eggs.

In Monday's Sidebar column in the Times, Adam Liptak wrote about Floyd Perkins.  The Supreme
Court has agreed to hear his case.  Liptak cuts quickly to the chase. Perkins, he writes, is

a Michigan man serving a life sentence for murder. The new evidence he has gathered is plausible but not overwhelming, and he waited a long time to present it. On the other hand, he may spend the rest of his life in prison for a crime he says he did not commit.

In dissent in the Troy Davis case, Justice I'm-not-fair-and-have-no-conscience Scalia explained that

This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

And although Scalia was dissenting, the Court didn't actually reach that holding in Troy's case, either.

And it's not just the Constitution.  It's the prosecutors and the trial judges and, god help us, the public.  Nor is it just executions.  

There's nothing new here.  If you've ever dipped much into this blog you know everything I've written so far (except maybe that I'm older than Mirriam but still not old enough to have killed the Lindbergh baby - let alone the Archduke Ferdinand).  

But I've got a slightly different point today, and it's not just about killing, it's about doubt.  (Yeah, Gamso, you've made this point before, too.)

In Kansas v. Marsh, upholding the Kansas death penalty which (unlike say Ohio's) has death as the default sentencing option, once an aggravtor has been established, Scalia rightly observed that humans and their institutions are fallible.  

One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.

As I say, he was right.  The question is what follows?  I mean, what do we do with that recognition?

We can abandon criminal punishment, but nobody much (not even me) suggests that we should do that.  We can look for systemic problems and adopt reforms to reduce, even if it's impossible  altogether to eliminate, the error rate. 

Or, of course, we can join with Scalia and say, as he does about those who want still to talk about Bush v. Gore,

Get over it.

OK, you know where I stand on that.  But I've got another question.  What should we do when there is a doubt, when we're holding someone in prison for years or decades or LWOP, or when  the person sits on the row, maybe with years - or maybe just days - before it's time to strap to the gurney and insert the needle?

What about the now-late Brett Hartman, or the even more recently late Preston Hughes? And all those rules that say finality matters more than getting it right?  I ask over and over,

Why not test the fucking DNA? 

But it isn't just DNA.  The same question applies to the recanting witness and new eyewitness and the continued denials and the juror who's reconsidered and the just residual doubt.  What now? What about those cases? And maybe it's just me but shouldn't the default be certainty rather than

Gee, but maybe we wouldn't get to kill or would have to retry someone who's guilty.  And then what would happen to the republic?

Because the republic really would survive.  Even if Justice Scalia thinks time and money were wasted.