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Innocence and Injustice

Lots of people are weighing in this week on the topic of the recently disclosed wrongful convictions of five youths in the 1989 Central Park Jogger case. Recent DNA testing (and the confession of someone previously uncharged in the crime) has established that the five defendants who were convicted of the rape and served time for it were in fact not the rapists.

Instapundit believes that the real issue is not whether the system makes mistakes, because they all do, but whether the mistakes were made in good or bad faith. Robert Prather of the Neo-Libertarian News Portal agrees with him.

We think good or bad faith is important, but we don't think it resolves the issue. Providing the convicted with an opportunity to obtain the necesary evidence to establish their factual innocence after conviction, without being subjected to unrealistic time constraints, is equally important. So is requiring the police to maintain the physical evidence of the crime (such as samples that might contain DNA and tapes of any purported confessions) so that later review can be had. So is analyzing the cases after the fact to find out what went wrong.

Elsewhere in the Blogosphere, Jeanne D'Arc of Body and Soul has been writing on various aspects of the case all week. How much did the fact that the five innocent youths were black have to do with them not being believed at trial? Would people have paid more attention to their claims of coerced confessions had they been white?

Yesterday, Avedon Carol of The Sideshow weighed in. While agreeing with Jeanne D'Arc on almost everything she wrote, Avedon takes issue with Jeanne's statement that lots of guilty people say they are innocent when they are not. She writes:

"I have no argument with Jeanne's point, but it's that "every criminal says he's innocent" thing that bugs me every time I hear it. In fact, it is nowhere near true that every criminal claims to be innocent. You might get that impression by looking at trial records, because at trial, defendants claim innocence; if they don't, there is no trial to determine their guilt. The big news stories aren't about the guys who just say, "It's a fair cop, guv," but those guys are not a rarity. Plenty of people admit they are guilty, plenty of people do not contest the facts, and even those who attempt to evade responsibility via the courts usually stop claiming innocence the moment they are convicted. When people have been in prison for years and are still claiming their innocence, there is actually a reasonable possibility that they are saying so because they are. That doesn't mean that everyone who does so is innocent, but that whole "that's what they all say" canard doesn't deserve the respect it so easily gets; it's not what they all say. Dump it from your cliche module."

Like Avedon, we too like Jeanne's many posts on this topic and appreciate her raising the consciousness bar on the issue. We also think Avedon is right on this particular point. Defendants don't all say they are factually innocent. In fact, very few do. Many will say they were not caught fairly, their rights were violated or they are less culpable than the state or government is making them out to be, but not many assert their complete innocence.

As a matter of law, defendants are innocent at the time they enter not guilty pleas and all the way through trial. They remain cloaked with the presumption of innocence until and unless a jury or judge finds them guilty after a trial or until a judge accepts their guilty plea after a hearing at which they demonstrate their plea is made knowingly, voluntarily and has a factual basis.

Defendants enter pleas of "not guilty" and proceed to trial because it is the state's job to prove them guilty by introducing evidence that amounts to proof beyond a reasonable doubt. Every person has the right to make the government meet that burden by testing the government's evidence in court. In most places, defendants don't even have access to the state's evidence against them at the time they are required to enter a plea. What lawyer would advise a client to plead guilty before reviewing and evaluating the state's evidence? If there is one, we wouldn't recommend hiring him or her.

Jeanne makes many good points, two in particular resonated with us:

"If I were a lawyer, I would ... be wondering what could be done to make sure it never happens again. That's the most important thing to think about in this story."

That's right, on at least two levels: When a plane goes down, when there is an explosion, what do we do? We launch an investigation to find out what went wrong and how to prevent it in the future. We should do that in innocence cases. Great Britain does it now. In its initial form, the pending Innocence Protection Act called for the establishment of such a commission. The amended bill now pending before Congress eliminated it. We still need passage of the bill as amended, but a national commission would have been such a good idea.

Second, according to The Innocence Project, false confessions account for 20 % of wrongful convictions. A fairly simple remedy exists: Require the police to videotape all confessions. Currently only two states, Minnesota and Alaska, require this. Other states (and the feds) need to follow suit. It is likely to substantially reduce the chances of another innocent person being convicted based on a false confession induced by their mental retardation or incompetency or by the overbearing conduct of a too-eager or manipulative cop.

Jeanne also asks, "Do we feel angry that the real criminal went free? I haven't seen anybody focus heavily on that one yet."

We do need to think more about this. Everytime a person is found to be factually innocent of the crime, it means the real perpetrator is still out there. That's why DNA testing is a win-win for everyone. If the person in jail is innocent, the real perpetrator who is still out there may strike again. DNA testing not only frees the innocent, it convicts the guilty.

On the other hand, we must also remember the phrase: "It is better that (1, 10, 100) guilty men go free than one innocent person be imprisoned or put to death." In 1895, the U.S. Supreme Court traced the history of that phrase in a case called (ironically enough) Coffin v. United States. 156 U.S. 432, 454; 15 S. Ct. 394, 403; 39 L. Ed. 481, 491 (1895).

The Court found the phrase dated back past England, to ancient Rome and Greece, and remarked that one authority, Greenleaf, claimed to have traced it to Deuteronomy. For a more thorough discussion on the evolution of the phrase, Instapundit recommends Alexander Volokh's 1997 law review article n Guilty Men.

Bottom Line: The killing of even one innocent person, whether it is done in good faith or bad faith, is a societal travesty. If it is preventable, through later DNA testing or though a hearing on newly discovered evidence (such as learning that someone else confessed to the crime) and we don't allow it because of the arbitrary one-year time limit on habeas appeals in effect since 1996, we think it becomes simply unacceptable in a civilized society.

As Innocence Project co-founder Barry Sheck testified in June before the Senate Judiciary Committee:

"Based on close to ten years of experience assessing and litigating more post-conviction DNA applications than any other office in the country, the Innocence Project has found that it takes an average of between three to five years to evaluate and perfect a post-conviction application from the time an inmate's letter arrives in our office until the time an adequately documented motion can be filed. The difficulties are legion: The inmates are indigent. They have no lawyers and their lawyers from trial or appeal have often been disbarred, died, or disappeared. They do not have complete copies of their transcripts and neither does anyone else. Important police and laboratory reports relating to key items of biological evidence cannot be found. And most importantly, no one can find the evidence. It might be in the court house as an exhibit, at the crime laboratory, in the prosecutor's safe, with the court reporter, at a hospital or medical examiner's office, or different items could be at a variety of these locations. Since the cases are very old, inventory records are lost, and long-term storage facilities for each institution change. "

It is in all our interests that we closely examine the innocence cases so that we can prevent their occurrence. Arbitrary time limits on making an innocence claim need to be abolished. If an innocent person has not already been executed in this country, it's only a matter of time. Whether you are for or against capital punishment, we need a moratorium now so we can avoid that eventuality. At a bare minimum, we need passage of the Innocence Protection Act.

The Innocence Protection Act as amended is not a cure-all. It allows only DNA claims to be heard after the one-year time bar. Other innocence claims, for example, sleeping lawyers and false confessions, are still subject to the time restraint. But it is a necessary beginning. Congress is in session. This bill needs passage. Contact them now.

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