Thursday, September 11, 2014

Close to Simple Murder

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
Herrera v. Collins (Blackmun, dissenting)
A single death is a tragedy; a million deaths is a statistic.
Joseph Stalin
What is truth? said jesting Pilate, and would not stay for an answer.
Francis Bacon, Essays, "Of Truth."

At one time, and in some abolitionist circles, I was known as the guy who grumbled whenever anyone wanted to talk about innocence.  It is, I said then, a dangerous idea.  Partly for that reason, I suspect, our criminal law shies away from it.  We are concerned, we who operate in the trenches of the legal system, whether as defense lawyers, prosecutors, jurors, or judges, we are concerned with guilt or its absence.  Innocence is, for us, mostly a dangerous distraction.

Ask any criminal defense lawyer who's been doing this work for a while if she wants to represent an innocent person.  The answer will be an unequivocal NO.


There is this innocence thing.  It's a legal non-entity.  And at some level it's why we're here.

"I made him just and right," Milton has God say in Book III of Paradise Lost, "Sufficient to have stood, though free to fall."  Could have been innocent.  Turns out to be guilty.

It's the claim of free will and the problem of guilt.  But guilt of what sort, exactly?  Milton's rebel angels transgress against God by wishing not to be subservient.  Dig to the core, and their sin, their guilt, was pride.  The first of the deadly sins, malum in se as the lawyers put it, bad in itself.   Our transgression, Adam's and Eve's was different.  Their sin, their guilt, was disobedience.  They had but a single rule.
Don't eat the fruit from the tree of knowledge of good and evil.
And they violated it.  Nothing inherently wrong with learning about good and evil.  Not malum in se. Rather, malum prohibitum, bad because there's an arbitrary rule that says so. 

So there are different kinds of guilt depending on whether the thing is bad because it's bad or because we say so.  But that only scratches the surface.

There's moral guilt (however it's measured).

There's legal guilt, which doesn't exist until a judge or jury makes a formal finding of guilt after a trial or a plea.  And the plea might be Guilty or No Contest or Guilty with an explanation or Guilty with Reservations of Rights.  There are conditional guilty pleas.  There are Alford pleas which are guilty pleas while maintaining factual innocence.  There are Robinson pleas (at least in Delaware) which are guilty pleas when the person can't remember whether he did it or not.

There's the guilty mind which involves some level of culpability beyond the fact that it happened.  Lawyers who like to toss around Latin terms speak of mens rea, the mental state.  Did the person act purposely or knowingly or recklessly or negligently or is the crime a strict liability offense?

There are guilty motives and intents to which we assess no blame.  After all, as Anatole France mordantly observed,
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
And of course there's factual guilt.  Did the person do it?  Was it even done? (Think Cameron Todd Willingham, who probably didn't set the fire that killed his children.  It's not that he was the wrong guy, but that it was likely an electrical fire that nobody set.  No crime at all.

Innocence is, ultimately, no different.

Moral, legal, factual.  There's the innocence of the newborn.  The innocence (if one believes such things - or if they're true regardless) of the saved.

But despite how it sometimes appears, this is a blawg, not a blingusitg or blphilosophg.  And I'm a criminal defense lawyer.  Can be no other, as I've said on more than one occasion here.  And a capital defense lawyer.  And aboltionist.

If you've spent any length of time reading through my musings, you know that I'm unalterably opposed to the death penalty.  My opposition is philosophical, moral, practical, political.  It's bad policy.  It's unworkable.  It's immoral from the get go (as they say in Texas where they executed Willie Tyrone Trottie a few hours ago).  It's racist and classist and sexist.  It costs too much.  We can't get it right and don't frankly care enough even to make the greatest possible efforts in that direction.

And, of course, sometimes we just get it wrong.  Kill the guy who's not death eligible.  Or just kill the wrong guy.

How often?  Nobody knows.  Justice Scalia, using statistics in  shockingly dishonest fashion (though Hanlon's Razor cautions against suggesting the dishonesty was intentional), concludes that the chances of a factually innocent person being executed are vanishingly small.  Others find the wrong guy on nearly every gurney.  What we know, as a statistical certainty, is that if we kill enough people, we'll eventually get around to killing factually innocent ones.  

Have we already?  Polling data indicates that most folks think we have.  Those who study the matter have a number of likely examples.


Richard Kopf, Senior U.S. District Judge, and blogger at Hercules and the Umpire, set off another firestorm (not his first) with his post on The Death Penalty and the Matter of Factual Innocence.  

I knew when I became a judge, he says, that I might have to rule on capital cases.  And I knew that there was at least some chance that I'd not overturn a death sentence and that it could lead to a factually innocent person being killed.  And yet I took the job.

And swore the oath set forth in 28 USC § 453.
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”
My job, he says, is to do ("administer" in the language of the oath) justice, not morality.  
It is important to distinguish between what may be a immoral and what may be unjust. They are not the same. Depending upon your religious beliefs, it may be immoral for a judge to accept that an innocent man may die in order to maintain a system that protects society at large by executing a great number of malevolent and guilty killers. But, is the judge’s acceptance of that flawed system just? The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience.
And so one does one's job.  Whatever is required.  Which for Judge Kopf, per his blog, is here.
  • Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.
And the firestorm.

It is the dilemma of the judge.  

If he wanted to, he could not declare capital punishment unconstitutional on grounds the Supreme Court had rejected.  At least, he could not consistent with his duty to obey the law regardless of his personal preferences.  If he wanted to, he could not declare a free-standing claim of innocence sufficiently compelling to grant habeas relief on it since AEDPA allows relief only on grounds approved by the Supreme Court.  He could slice and dice and twiddle, but he's wedded to the Rule of Law which means he won't "play games with the law to do so."

There is a mark of integrity in this.  I know what is right.  The execution of the innocent is never right. Within the bounds of the law, I will do what I can to prevent it.  But I won't violate my oath, my bond, my duty.  I honor the Rule of Law by obeying the law even when, perhaps especially when, it is the most distasteful.

It is the integrity we traditionally associate with Robert E. Lee, resigning his commission to fight for the South not because he believed in slavery or even favored secession but because the South was his home.  (There's some evidence that our common understanding of Lee's motives is deeply flawed, but that's for another day.)  And we praise Lee for it.  But slavery.

And though I don't think the point particularly fair, Nuremberg.

In a comment, I wrote this.
It is the duty of the judge to follow the law and to go where it takes her. But when the law is at odds with greater law (say, god’s if you believe in her, or nature’s or moralilty from whatever source), then you have the problem of what to do.
I was talking once with an appellate judge who, I knew, was opposed to the death penalty but who I also knew had voted to affirm death sentences. “How can you do that?” I asked. We talked about alternatives (ignoring the law, recusing himself from all capital cases, etc.) Ultimately, though, he offered this answer. “If I don’t stay on the cases and vote to affirm when I must, I can’t be there to overrule a death sentence when I can.”
I do believe in rules.  They are what we have.  Absent the law . . . .  From A Man for All Seasons.
William Roper:          So, now you give the Devil the benefit of law!
Sir Thomas More:      Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper:          Yes, I'd cut down every law in England to do that!
Sir Thomas More:      Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
And yet.

If the law compels a result not merely unjust but immoral, then what is the response of one wedded to the Rule of Law?

Judge Kopf assumes that those who enacted the capital laws, and the voters who put them in place, recognized that they were, in effect, condemning some innocent people.  And that they were OK with that.  it was a careful choice of balances.  I think not.  Oh, the consequence was real enough, and obvious if one considered it, but I suspect that pretty much nobody did.  Nobody, after all, actually favors the murder of the innocent.  And it's why the single dead innocent guy is worth far more than theoretical possibility or even sure-it's-happened.

We were conducting voir dire one day in a capital case.  It was the first part, in the judge's chambers. One prospective juror, the judge, court-reporter, lawyers, and defendant.  How do you feel about the death penalty, the juror was asked.  No very strong feelings.  Hard to say.  Glad we have it.  But you'd want to be really sure.
Q          What about this guy, here?  If the aggravating circumstances outweigh the mitigating factors, can you sign a verdict form saying that this man should be put to death?
A          Wow! That really calls the question.
He hemmed and hawed for a while.  Never did really answer.  He ended up sitting on the jury.  The jury gave our client life.

When push comes to shove.  When the question is called.  When you've moved heaven and earth and nobody gives a rat's ass.  Do you sign off on the killing of the innocent man?  

When President Nixon insisted that he fire special prosecutor Archibald Cox, Attorney General Elliot Richardson resigned.  When Nixon then went to Deputy Attorney General William Ruckelshaus and ordered him to fire Cox, Ruckelshaus resigned. And so Nixon turned to Solicitor General Robert Bork.  Who fired Cox.

I've never had the honor of practicing before Judge Kopf.  I've never met the man.  But I think, whatever he says now, when it's all theory, when push came to shove.  When the question was called?

Richardson, not Bork.


  1. Dear Jeff,

    Three brief comments to your great post.

    1. You posted at about 2:00 AM. I didn't sleep the night I wrote my post. This stuff is hard.

    2. I don't think the peoples' support of the death penalty in the electoral process is well thought out. But, they know about the exonerations that hit the paper when the wrong man barely escapes being killed and yet they continue to support the death penalty in many states. We legal positivists (legal realists) don't require that their choices be intellectually rigorous.

    3. As for Richardson or Bork, you bring back memories. I was a law clerk to a judge then on the Eighth Circuit. He was a very, very, very heavy hitter in the Republican Party prior to his appointment to replace Harry Blackmun. Anyway, I think Bork did the right thing. I also think Richardson did the right thing. Both were honorable men.

    By the way, and let me say again, I love your writing. Your insights (like experienced criminal defense lawyers don't want clients who are innocent) are always fresh and illuminating.

    All the best.


    1. My colleagues observe that I don't sleep. They've taken to describing me as a vampire.

      As for the plebescite, again, polling data is clear that a majority support the death penalty in the abstract, that a majority believe we've executed innocent people, and that a majority of the folks who believe we've executed innocent people also believe in the death penalty in the abstract.

      Of course, there's another poll that matters. The one in the jury room where jurors - who have been vetted to ensure that they can accept the death penalty but also know mistakes can been made - mostly return life sentences. The capital jury project, the most sophisticated study of capital trial jurors, finds that residual doubt of guilt is the most powerful mitigating evidence.

      Sure, those jurors say, maybe in the abstract. But not on my watch.

      It's not that Bork acted immorally - I'm agnostic about that these days - but the contrast between what Richardson and Ruckelshaus chose to do and what he did is, I think, instructive.

      As always, I'm honored that you stop by.

  2. Well, a few things come to mind here. Forgive me if I go on a bit.

    First, Judge Kopf's reasoning process is completely iniquitous to me, no matter how many times I encounter it, which unfortunately is often, especially among judges. Positivism is a philosophical relic of the late 19th, or at best early 20th century. It is not only morally repugnant, but intellectually repugnant, and contrary to about 2,000 years of the western thought - and the civilization that thought produced - that preceded it.

    This is succinctly demonstrated when Judge Kopf alleges in his comment that both Richardson and Bork did "the right thing" even though they did the opposite. This is an impossible conclusion to reach. Kind of leaves one speechless. Whether one or both were "honorable men" is open to question, but the question is also quite obviously irrelevant to the point at issue.

    Then again, I don't think it helps matters much to give him so much ammunition by offering that innocence is little more than an unpleasant thing to have to deal with. As you can see, he can hang a lot on that admission. Pun intended.

    What a mess.

    One other major error is that an over-emphasis on "the system" and "policy" is a particularly pernicious perspective from a trial judge. The system and policy are the stuff of the legislative and executive branches, then to some far lesser extent the job of the appellate courts, but the trial courts take one case at a time and the goal is always, always to achieve justice in whatever case is at hand. Indeed the appellate courts can't do their jobs properly unless the trial courts take that approach.

    If Judge Kopf's intellectual bent is the predominant one on the federal bench I'd have to say you, Jeff, have finally compelled me to become an abolitionist. For entirely pragmatic reasons, since I acknowledge that in some small number of cases the death penalty is the only just sentence.

    1. I have no way of knowing whether they're true, but Bork's explanations for why he chose to fire Cox (he'd thought about resigning, too) are both plausible and reasonable. And, of course, it's clear that they had they legal right to fire Cox.

      In any event, it's not impossible that two people who did different things both acted properly. At least, it's not if you believe motive and context are significant.

    2. I didn't say anyone acted improperly. I said two opposite things cannot both be "right", and no legitimate "reasoning" process yields such a perverse result.

      But, you know, you read the rest of RGK's post and he's very open about being a positivist, or a 'realist' and rejecting natural law, which is more than unfortunate inasmuch as reason itself has no justification outside of natural law so he's doomed to incoherence. No wonder he has required five years of therapy, which he also discusses with surprising candor on his blog. I don't mean that to sound unkind. I mean it is kind of remarkable that he's putting all this stuff out there, you've got to thank the guy for that.

      I'm sure on a personal level RGK is a fine guy and maybe he'd be okay as a lawyer without too much responsibility but in a judge being a positivist is a real problem. It's been a while since I looked into these things, but I was an undergraduate a fairly long time ago and positivism had been thoroughly discredited by then. At least intellectually. Holmes has his place in the American jurisprudential pantheon, I guess, but it's really, really wrong-headed to follow him intellectually.

      He also considers the US "aggressively democratic". Plainly contrary to observable reality, but it features prominently in his views of the death penalty.

      I'll have to write something about this over at my own place. And later, I've got other stuff to do. Nice chatting with you.