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Distinguishing the Innocent Not an Easy Task

The ACLU tweeted last nightt:

In case it wasn't obvious: the only way to avoid executing the innocent is end the deathpenalty.

Back in 2009, I wrote this post about Justice Anton Scalia's view of the Troy Davis case, the presumption of innocence, which back in 1895 in a case called Coffin v. U.S, the Supreme Court called a "bedrock" of our criminal justice system, and on why those who "did it" may be just as at risk of a miscarriage of justice as those who are innocent. From the Coffin case: [More...]

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

Scalia's misguided notion about innocence:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

Scalia aside, one problem is we don't really know who's innocent. As I wrote then:

There's no way to know if someone is innocent when they didn't have competent counsel at trial, were identified as a result of an overly suggestive eyewitness procedure, had a confession beaten out of them, no DNA testing, were ratted out by a lying jailhouse snitch, may have an IQ below the level establishing mental retardation, or may be incompetent, delusional or otherwise severely mentally incapacitated. The question is not "did they do it?" but were they convicted following a a fair trial at which their constitutional rights were protected? Everyone is presumed innocent until a jury returns a verdict of guilty at the conclusion of a fair and impartial trial at which they are afforded their full panapoly of rights. If we can't trust in the credibility of the verdict, we can't trust in the integrity of the system that delivered it.

There is simply no excuse for executing someone who has a reasonable claim of innocence before providing him or her with a full and fair hearing on their claim. It's not what a civilized nation does, it's contrary to almost every constitutional right we have, from due process of law to the Sixth Amendment guarantee of a fair trial and effective assistance of counsel, to the 8th Amendment ban on cruel and unusual punishment. And it's certainly not justice.

< R.I.P. Troy Davis | Udall and Wyden Complain About Misleading Patriot Act Surveillance Reports >
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    A Civilized Nation Does Not... (5.00 / 4) (#1)
    by ScottW714 on Thu Sep 22, 2011 at 12:42:21 AM EST
    ...murder its citizens, even the most despicable ones.

    The claim that, 'There is simply no excuse for executing someone who has a reasonable claim of innocence' is something a civilized will never be burdened with.

    When my father was a young rookie (5.00 / 3) (#27)
    by caseyOR on Thu Sep 22, 2011 at 04:51:24 PM EST
    reporter for the daily newspaper in our small central Illinois city he was sent up to Joliet to witness and report on an execution. I don't remember who was executed. It was in the post WW II 1940s.

    He told me the story in 1967, in the immediate aftermath of the Richard Speck trial. Everyone in Illinois was riveted by the trial, but in my town we were especially focused because Speck's trial was taking place in our downtown courthouse. We had never seen such a massive police presence.

    Speck was given the death penalty.  That brief moment of sanity when the U.. outlawed the death penalty meant that Speck was never executed, but lived out his life in prison.

    The trial prompted quite a bit of discussion in our home including talk about the death penalty. My dad was vehemently opposed to the death penalty because of his experience witnessing that execution back in the '40s.

    In those days it was the electric chair, not lethal injection. Dad described for me what it was like, sitting in the viewing room, looking at a man who was about to die. He described, rather vividly, what happens to a human body when the switch is thrown and the current charges through. He did not mince words or leave out anything.

    He was a young man, in his 20s, and he tried to act tough and jaded at that execution. The viewing room was packed with hardcore, grizzled reporters from the Chicago papers. He wanted to impress them, or at least not embarrass himself. He could not pull it off. He lurched out of the viewing room just before he started vomiting. When he looked up he saw many of the grizzled reporters also throwing up, then following that with long pulls off the half-pint bottles of bourbon and rye they had tucked into their jacket pockets.

    It was the worst thing he had ever seen. And this from a man who had served in WW II, and after that  covered the police beat for years. Dad made the case, and I believe he was right, that the death penalty has nothing to do with deterrence and everything to do with revenge. And revenge has no place in the justice system.

    Parent

    I respect (5.00 / 1) (#30)
    by Zorba on Thu Sep 22, 2011 at 05:01:23 PM EST
    and admire your dad.  He was right.  And I can see that he left his legacy to you, casey.

    Parent
    That is (5.00 / 2) (#3)
    by lentinel on Thu Sep 22, 2011 at 06:21:25 AM EST
    one glaring fact for me.

    When the US DIstrict Court Judge Moore denied Davis' appeal, he said that Davis had not offered new evidence to prove his innocence.

    Indeed, the evidence offered at his appeal was to demonstrate that evidence offered at his original trial was severely tainted, and that under the standards of reasonable doubt and the presumption of innocence he should not have been convicted and deserved a new trial.

    But the way I read Judge Moore's comment, it would seem that the defendant had to prove innocence and had the presumption of guilt.

    Maybe that's the way it works on an appeal, but it really seemed unside-down to me.

    And I would also like to say that Obama's comment, that he had nothing to say about the case because he doesn't talk about matters having to do with State Courts, seemed especially heartless. Maybe that's the way it works, but the coldness of the response was frightening to me.

    I don't really identify with much of what goes on in our country right now.

    The Hurricane... (none / 0) (#10)
    by ScottW714 on Thu Sep 22, 2011 at 11:00:41 AM EST
    If the movies is fact, that is exactly what freed Rubin Carter.  The rub was introducing new evidence at the risk of the judge not accepting.  The evidence was similar, eye witnesses being pressured and a shady line-up.  For reasons never explained, if the judge refused the evidence, it could never be introduced as evidence in any court, it would essentially disappear.

    But in the movie, unlike the Davis case, the judge acting with his conscience & common sense, not the law, and looked at the evidence which was compelling enough to let Cater go on the spot.  They never tried him again.

    The story of Rubin Carter sung by Bob Dylan.

    How can the life of such a man
    Be in the palm of some fool's hand ?
    To see him obviously framed
    Couldn't help but make me feel ashamed to live in a land
    Where justice is a game.


    Parent
    I could not write anymore last night my heart (none / 0) (#2)
    by loveed on Thu Sep 22, 2011 at 05:17:25 AM EST
    was so heavy.

     I tried to encourage other to watch the Kasey Anthony trail. Not for the noritioty,but for the process.
     I said in the beginning,the prosecution case did not make sense. A fair jury would find her not guilty on all the murder charges.I also said how the prosecution only want to win.
     Prosecution case: 24yr old mother with no priors criminal history, no drug use, no runaway. With a overbearing mother that wants her child. Kasey decides she wants to party with her friends, so she chloroformed her and place duct tape over her moth. She suffocated,Kasy then drives around florida with the body in the back of the trunk for 7days in 90 degree days. Then throws the body in to a garbage dumps. Then parties for 32 days.

     I know some will not get the connection. But once the process start it's hard to stop.

     Have you listen to these pro-death penalty crazies. They don't care, someone is going to pay.

     Members of the family smiled as they left.

    Anton Scalia's (none / 0) (#4)
    by Edger on Thu Sep 22, 2011 at 08:12:38 AM EST
    Scalias metaphysical question about "know (none / 0) (#5)
    by Dan the Man on Thu Sep 22, 2011 at 09:22:15 AM EST
    ing" reminds me of Wittgenstein's metaphysical question about "knowing" in his book On Certainty.

    Compare Scalia's "knowing" question

    "There's no way to know if someone is innocent when they didn't have competent counsel at trial, were identified as a result of an overly suggestive eyewitness procedure, had a confession beaten out of them, no DNA testing, were ratted out by a lying jailhouse snitch, may have an IQ below the level establishing mental retardation, or may be incompetent, delusional or otherwise severely mentally incapacitated."

    with Wittgenstein's.

    "'I know that I am a human being.' In order to see how unclear the sense of this proposition is, consider its negation. At most it might be taken to mean 'I know I have the organs of a human'. (E.g. a brain which, after all, no one has ever yet seen.) [...] Nevertheless it is imaginable that my skull should turn out empty when it was operated on."

    How could Scalia deny that "it is imaginable that my skull should turn out empty when it was operated on" right?  Hence, I can't know I have a brain right?

    One thing I've always loved about Scalia is how he engages in Metaphysics in his court opinion when it would be easier just to deal with reality (with a small 'r').

    Scalis didn't write that (none / 0) (#6)
    by Jeralyn on Thu Sep 22, 2011 at 10:26:20 AM EST
    I did.

    Parent
    I remember a man named Willie Darden (none / 0) (#7)
    by Dadler on Thu Sep 22, 2011 at 10:43:14 AM EST
    Executed back in 1988. (LINK)  That was the first time the wretchedness of the death penalty and our system hit me.  The killing of Troy Davis, and the others before him, is a grievous stain on our nation.  

    That the president said nothing, that no SCOTUS justices had the humanity to dissent, I question their withered black hearts even exist.  And obviously I understand why they say nothing, and I think the reasons are bullsh*t.  Last night I ranted like a flailing fool, writing things I knew could never happen.  I'm shutting my mouth for the rest of the day and taking a very long drive.  Peace, y'all.

    Avoidance (none / 0) (#8)
    by Abdul Abulbul Amir on Thu Sep 22, 2011 at 10:46:15 AM EST
    .

    In case it wasn't obvious: the only way to avoid imprisoning the innocent is end imprisonment.

    Likewise, the only way to ensure murderers don't repeat offend is the death penalty.  Too many have died at the hands of those persons sentenced to life.

    .

    Do you mean those sentenced ... (5.00 / 1) (#9)
    by Yman on Thu Sep 22, 2011 at 10:55:24 AM EST
    ... to life w/o parole? ... because that's always an alternative to the death penalty.

    If so, what do you mean by "too many have died"?

    Parent

    Lifers in the slammer (none / 0) (#15)
    by Abdul Abulbul Amir on Thu Sep 22, 2011 at 01:49:45 PM EST

    killing additional victims.

    Parent
    If you're feigning concern ... (5.00 / 1) (#24)
    by Yman on Thu Sep 22, 2011 at 04:11:58 PM EST
    ... for other prisoners killed by people convicted of murder, save the crocodile tears.

    How many additional murder victims are you willing to tolerate as a cost of ending the death penalty?

    I don't know, ..... how many additional murders of the wrongly convicted are you willing to tolerate as a cost of continuing the death penalty?  Somehow

    Weird, huh?  The thought that our government should be held to a higher standard than an actual murderer.

    Parent

    Apparently, very few people nowadays (5.00 / 1) (#26)
    by Zorba on Thu Sep 22, 2011 at 04:25:26 PM EST
    pay attention to Blackstone's formulation:  "better that ten guilty persons escape than that one innocent suffer."  Never mind that both British Common Law and American jurisprudence were so very heavily based on Blackstone's writings.

    Parent
    An interesting history (none / 0) (#28)
    by jbindc on Thu Sep 22, 2011 at 04:52:38 PM EST
    on Blackstone by Alexander Volokh (brother of noted libertarian blogger Eugene, and he, himself a right leaning libertarian, but this is interesting nonetheless).

    Of course, he ends with this famous quote:

    The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed.  The Chinese professor thought for a second and asked, "Better for whom?"


    Parent
    Yes, I'm very familiar (5.00 / 1) (#29)
    by Zorba on Thu Sep 22, 2011 at 04:58:55 PM EST
    with that quote.  And while I acknowledge that victims and their families probably feel differently, I believe that whenever an innocent man is jailed or (worse) executed, that diminishes and coarsens the society that allows it to happen.

    Parent
    In fairness (none / 0) (#17)
    by nyjets on Thu Sep 22, 2011 at 02:00:51 PM EST
    That does not happen very often. It is horrible when it does happen but it is rare.

    Parent
    How many additional murder victims (none / 0) (#18)
    by Abdul Abulbul Amir on Thu Sep 22, 2011 at 02:48:43 PM EST
    .

    are you willing to tolerate as a cost of ending the death penalty?

    What is rare?  This guy chalked up three more murders while behind bars.

    .

    Parent

    I call BS on this. (5.00 / 0) (#22)
    by Anne on Thu Sep 22, 2011 at 03:35:34 PM EST
    Maybe "utter" BS, at that.

    Since it is often decades between someone's arrest, trial, conviction, sentencing, and the appeals process, before a death sentence is ever carried out, the only way to ensure that someone who is accused of a murder - much less convicted of it - doesn't get the chance to kill again is to do away with any form of due process altogether.

    That makes sense, huh?  When does the death march happen?  At arrest?  Ooh - think of the money saved on all those trials.  Conviction?  Another win for the budget - no appeals!  Or should we mandate solitary confinement, no contact with other inmates, for the entirety of any allegedly violent inmate's time with the state - from arrest through conviction?

    We'll just dispense with that whole constitutional rights thing - no muss, much less fuss.  We'll try not to think about how many innocent people die at the state's hands.

    Listen, I know logic is hard sometimes, and thinking can make one's head hurt, but golly, sometimes it is just so worth it.  

    You should try it.

    Parent

    There is no reason (none / 0) (#34)
    by Abdul Abulbul Amir on Fri Sep 23, 2011 at 01:22:57 AM EST
    that due process must take decades.  Speedier apeals should address your concern.  Justice delayed is justice denied.

    Parent
    Of course (none / 0) (#37)
    by CoralGables on Fri Sep 23, 2011 at 08:43:04 PM EST
    that would also lead to more deaths of innocents. But I understand your point. If we kill them fast they will have a harder time proving their innocence.

    Parent
    Well there is the inverse of that (none / 0) (#38)
    by Rojas on Fri Sep 23, 2011 at 09:17:12 PM EST
    We could actually consider providing the resources to take on the state to the accused. We might consider the intent of the 14th and start holding the state libel.

    Parent
    how about the murder (none / 0) (#19)
    by CST on Thu Sep 22, 2011 at 03:03:32 PM EST
    that happened yesterday?  No concern for those victims?

    Parent
    Which one? (none / 0) (#20)
    by jbindc on Thu Sep 22, 2011 at 03:05:12 PM EST
    The one in Texas?

    Parent
    Troy Davis (none / 0) (#21)
    by CST on Thu Sep 22, 2011 at 03:15:29 PM EST
    for one.

    Personally, I would include the one in Texas too but I somehow doubt Abdul cares about that.

    Parent

    Several thousand people have been executed (none / 0) (#31)
    by observed on Thu Sep 22, 2011 at 06:24:15 PM EST
    in the US in the last 30 years. How many murders are committed in prison by lifers? Care to compare the numbers?


    Parent
    Big Strong Words, Hinged on... (5.00 / 1) (#13)
    by ScottW714 on Thu Sep 22, 2011 at 11:37:26 AM EST
    ... the presumption that Georgia killed a murder.

    No one knows, and 7 people who said he did it, now say he didn't.  Not one, or two, or even three; seven people say the man Georgia killed last night was not the murderer.  And if that isn't enough, 3 of the jurors said they would not have found him guilty had the seven not testified.

    In America, where the presumption of innocent is suppose to be the law of the land, ten citizens surely must hold some weight.

    States have murdered people with a single eye witness testimony, surely seven eye witnesses are enough to put doubt in even the most bloodthirsty minds.

    And lastly, really, 'the only way to ensure murderers don't repeat offend is the death penalty'.  Using that logic, the only way to ensure any criminal doesn't commit more crime is to murder them.

    The entire world manages to keep millions of murders from murdering again without murdering them.

    Parent

    Validation, compliance (5.00 / 2) (#32)
    by Rojas on Thu Sep 22, 2011 at 07:02:28 PM EST
    How did we get to such a state here in the "land of the free" where we measure defects in manufacturing process in parts per million and yet accept a wrongful conviction rate in single to double digit percentages?

    Parent
    Excellent question, Rojas (5.00 / 1) (#33)
    by Zorba on Thu Sep 22, 2011 at 07:11:17 PM EST
    Beats the heck out of me.

    Parent
    Life without parole is torture (none / 0) (#11)
    by Mr Natural on Thu Sep 22, 2011 at 11:15:28 AM EST
    not only for the poor bastard, however evil, who is serving that life sentence but for the poor taxpayer who's paying for it, at gunpoint, as well.

    It's also the only way... (none / 0) (#12)
    by Dadler on Thu Sep 22, 2011 at 11:24:04 AM EST
    ...to find out if someone is innocent before you shove lethal chemicals into their veins.  IOW, it's the only way to ensure the innocent aren't executed.  Kinda hard to dig up a grave and say, "Oops, sorry, you can go free now."

    That our prison system is an inhumane disgrace is certainly a valid point, if you want to make that one toward reform.

    Ah, my wife is back, we're taking the day off, see you later.

    Parent

    OTOH (none / 0) (#14)
    by nyjets on Thu Sep 22, 2011 at 01:46:45 PM EST
    For some crimes,the only correct punishment is life without parole and for those people I will gladly pay taxes to keep them locked up until they are dead.

    Parent
    LWOP (none / 0) (#16)
    by Abdul Abulbul Amir on Thu Sep 22, 2011 at 01:52:30 PM EST
    .

    Life without parole is really no different than death by confinement.

    .

    Parent

    One tiny difference (5.00 / 1) (#25)
    by Yman on Thu Sep 22, 2011 at 04:18:33 PM EST
    The wrongly convicted who are imprisoned can be set free if is discovered that they were, in fact, innocent.

    ... although I'm guessing that's not such a tiny difference to those wrongly convicted.

    Parent

    Execution is much more expensive (none / 0) (#35)
    by agio on Fri Sep 23, 2011 at 11:58:11 AM EST
    than life imprisonment.

    http://bit.ly/oRpRIP

    Parent

    Since you are a new user please (none / 0) (#36)
    by Jeralyn on Fri Sep 23, 2011 at 07:04:47 PM EST
    identify the name and source of your link. Otherwise I can't tell if it's spam or a legitimate link. Thanks.

    Parent
    Thanks for the advice and understanding (none / 0) (#40)
    by agio on Mon Sep 26, 2011 at 02:48:15 PM EST
    I am a new poster (though I've been reading this blog for years).

    The full link is: http://www.deathpenaltyinfo.org/costs-death-penalty-costs-texas-outweigh-life-imprisonment

    It's Death Penalty Information Center, a non-profit, anti-death penalty advocacy group.

    Parent

    Thanks, (none / 0) (#41)
    by Jeralyn on Mon Sep 26, 2011 at 07:08:17 PM EST
    and glad you are now posting!

    Parent
    Nice Post (none / 0) (#42)
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