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Thursday, April 15, 2010



Innocence Yet Again

I've talked about innocence far more than I like. But if I'm going to toil in the field of criminal defense blawgging with an emphasis on the death penalty, it's hard to avoid.

The problem with innocence, though, is like the problem with guilt. The words are slippery. Just what sort of "innocence" are we speaking of? Factual? Legal? Moral? Spiritual? Are we involved in ontology or omphaloskepsis? (There is a difference.) Same for guilt.

OJ is legally innocent of the murder of Nicole and of Ron Goldman. That's the result of the criminal trial. But he is legally responsible for their deaths. That's the result of the civil trial. Try explaining that to the man or woman on the street, and then ask if it makes any sense.

In fact, and I get tired of saying this, criminal trials are not about factual guilt or innocence. (Though we hope their verdicts will reflect it.) They're about proof as presented through a set of procedures and rules developed and refined over centuries and subject to almost daily modification at the whim of judges, justices, and legislators.

Take the case of the already executed Cameron Todd Willingham. (I'm not going to rehash it all here or even set out links to the 15 posts I've given that label. [It'll be 16 once I post this.] There's a link to all of them on the right.) He did or did not murder his children. Despite the claims of the surviving arson investigator who testified that there was a fire set and of Willingham's trial lawyer who's sure he was guilty, who was sure of it at the time, and who wants the world to know it, there's simply no credible evidence that Willingham killed anyone. Which doesn't mean he didn't, but goes a long way toward proving that.

(A brief digression. Grits reports that John Bradley, who's the head of the Texas Forensic Science Commission and was seemingly appointed to whitewash the Willingham case, now seems poised to do just that. Stay tuned.)

Then there's Hank Skinner (Again, you can find the links yourself). He's still on death row as opposed to having been executed thanks to some great, creative lawyering. Did he actually do the things the jury said he did? Damned if I know. Is that relevant to questions of guilt or innocence? Depends on the questions.

The Death Penalty Information Center maintains a list of those exonerated from death row, what it calls "The Innocence List."

For Inclusion on DPIC's Innocence List:

Defendants must have been convicted, sentenced to death and subsequently either-

a) their conviction was overturned AND

i) they were acquitted at re-trial or

ii) all charges were dropped

b) they were given an absolute pardon by the governor based on new evidence of innocence.

That's it. Notice that nowhere in that explanation is the claim that being on the list means a person is not factually responsible for the acts at issue. (Though, certainly, maybe most are innocent in that way.) Rather, they are on the list because the law has so declared them and in the case of gubernatorial pardons there is some "evidence of innocence."

And so we come to the sad case of Timothy Hennis. In 1985, in Fayettevill North Carolina, Kathryn Eastburn was raped and she and her two young daughters were murdered. Hennis was convicted of the crimes and sentenced to die. Tried and convicted of rape and murder from 1985, the North Carolina Supreme Court ordered a new trial. In 1989, he was acquitted, found not guilty. That's exoneration. Legal innocence.

Hennis qualified under (a)(1) for inclusion on the list of exonerated persons. And there he remained. Until Thursday of last week when he was found guilty of the crimes in a military court. (Don't try to understand how this is possible given that pesky double jeopardy prohibition in the constitution. I've talked about that before, most recently here.)

Kent Scheidegger cackled.

This is the smoking gun that proves what we have been saying all along. The so-called innocence list is nothing of the sort.

. . .

We have known all along that the "innocence list" claim was a lie. Now we have official proof, beyond a reasonable doubt.

The Times balances Scheidegger's claim with Dick Dieter's explanation.

In an interview, Mr. Scheidegger said that the Hennis case showed the stark difference between a jury’s not finding guilt beyond a reasonable doubt and actual proof of innocence. In the Hennis case, he said, “we have proof that he was a guilty murderer who got away with it, and yet he was on the innocence list.”

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.

Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

Paul Cassell, writing at The Volokh Conspiracy, has a slightly different take. DPIC deceived him.

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit. If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

You see, if DPIC is going to have what they call an "Innocence List," they need to do more than explain how it's derived. They have to make sure that Professor Cassell reads and understands the explanation. That's a tough job. You can lead a horse to water and all that.

Then there's Bill Otis whose post I'm reproducing in it's entirety:

Inspired by, but not a report of, the Hennis case and the commentary thereupon, and in appreciation of so many other indignant DPIC stories of "the innocent."

Innocent (archaic) -- Didn't do it.

Innocent (modern) -- Not as "innocent as a newborn babe" but kind of innocent, not in the woden, old fashioned sense, but in the sense that the "alleged" killer was, you know, abused 30 years ago by his long-dead step-father, leading to his inability to form criminal intent notwithstanding that he stabbed the victims 20 or 40 times or something; and which step-father his lawyer would have found out about but for his sleeping through pre-trial preparation, not to mention the trial, leading to reversal for ineffective assistance. So, you see, he was, to the more sophisticated among us, innocent. See also "exonerated."

Innocence list -- A compilation of people who either (a) did it, or (b) didn't do it, not that it matters that much, since the whole point is to conflate the two, so long as much of the media can be relied upon to portray the list as consisting only of (b). See also Roger Keith Coleman, who never made the innocence list but served the same purpose despite his now quietly conceded abject guilt.

As Greenfield notes, this is all about the definition of innocent, which is kind of where I began and which allows for a difference between legal and factual innocence. Scott explains in his just slightly snarky way:

Cassell wants to know how these people can be called "innocent". Because this is the United States of America, and in the United States of America, everyone who is not convicted is innocent. Actually, truly, really, 110% innocent.


Neither Cassell nor Scheidegger is really as stupid or as inattentive as I'm making them sound (or as Greenfield does) by throwing their own words back at them. They're making rhetorical points by deliberately misreading DPIC's use of "innocence" just as DPIC chooses to the call it's list of the exonerated an "Innocence List" for rhetorical purposes.

But words matter, and DPIC at least has the integrity to define its words and explain its list. Don't like that list? Fine. Make your own. Hell, make a list of everyone you think is guilty who still isn't behind bars or strapped to the gurney. Be careful, though, to define your terms out in the open.

But while they're compiling the lists, there's still the question of Hank Skinner's DNA.

Bill Otis asserts the importance of DNA testing and took me to task for saying that he thought it shouldn't be done. That claim doesn't seem to be echoed in a demand that Texas allow that testing for Skinner (or Ohio for Darryl Durr). I don't notice Scheidegger or Cassell demanding it, either. Neither Scalia nor Thomas, the two justices who are on record as saying that the Constitution isn't concerned with conviction of the innocent but think governors will surely save any that come close, seem to have demanded the testing, either.

(I'll be happy to redact from that paragraph the name of any of those folks who've demanded that Texas allow DNA testing for Skinner or Ohio for Durr. I can't find it.)

Because really, if we're going to discuss hypocrisy and the abuse of rhetoric, there's no shortage.

And regardless of whether Hennis is one of them, there have been factually innocent folk sentenced to death. And whether Scheidegger or Otis or Cassell or Scalia or Thomas or your next door neighbor wants to believe it, it's damned likely some have been executed. And it's a mathematical certainty that if we kill enough people, some will be innocent. Factually.

If that's OK with them, let them say so. Then they can decide about who needs to apologize to whom. If it's not OK, then what happens?

And let's get at the DNA.

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