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September 5, 2009

"Not Innocent Enough: The elusive search for the sufficiently innocent death-row victim"

The title of this post is the headline of this Slate article by Dahlia Lithwick, which connects the recent death penalty stories surrounding Troy Davis and Cameron Todd Willingham.  Here is how it starts and ends:

For years, death-penalty opponents and supporters have been on what now looks to be an ethical snipe hunt. Everyone was looking for a moment at which everything would change: a case in which a clearly innocent defendant was wrongly put to death....

In June, by a 5-4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Thomas went even further than the chief justice following an extraordinary Supreme Court order instructing a federal court to hold a new hearing in Troy Davis' murder case, after seven of nine eyewitnesses recanted their testimony.  Scalia, dissenting from that order, wrote for himself and Justice Clarence Thomas, "[t]his 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."

As a constitutional matter, Scalia is not wrong.  The court has never found a constitutional right for the actually innocent to be free from execution.  When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence.  Oddly enough, for at least some members of the current court that question is now seemingly irrelevant: In Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is today constitutionally immaterial. Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won't matter at all. In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.

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Comments

The problem is that there is no such thing as 'actual' innocence. No one knows what that means because it doesn't mean anything at all.

You know, the more I have been a part of this blog the more I have changed from a reluctant supporter of the death penalty into an full-fledged one. The sheer nefariousness of death penalty opponents has come to turn my stomach. I'm actually someone they could have wooed if they had been honest and decent people. But anymore my attitude is ^%!@ them and the horse they rode in on.

Posted by: Daniel | Sep 5, 2009 6:24:43 PM

"The problem is that there is no such thing as 'actual' innocence."

Please read the article. It means he didn't set the fire. Thanks!

Posted by: . | Sep 5, 2009 6:41:30 PM

"The sheer nefariousness of death penalty opponents has come to turn my stomach."

You should find Scalia's words vomit worthy then. He ignores the fact that scores have been released from death rows, yet refuses to concede that one could have slipped through the cracks.

Posted by: . | Sep 5, 2009 6:44:52 PM

A reluctant supporter and a full-fledged supporter is something like a reluctant execution and a full-fledged execution.

I'd be a reluctant supporter in extreme cases (serial killers and multiple murderers) if all prosecutors or police or crime lab technicians had been honest and decent people and didn't withhold exculpatory evidence and such too often.

Now, where did my horse go?

Posted by: George | Sep 5, 2009 7:10:45 PM

Daniel, I'm having trouble understanding your comment. The idea behind the term "actual innocence" is to distinguish it from "mere" "legal innocence," that is, a reasonable doubt about whether admissible evidence establishes guilt. For example, my client, Nick Yarris, was convicted and sent to death row in Pennsylvania (where he languished/hung on for 22 years, 11 of them with me as one of his court-appointed post-conviction counsel) for kidnaping, raping, and then stabbing to death in 1981 a young mother who was working a part-time job to earn money for her kids' Christmas presents. A very ugly case, if you get my drift. The killer, who apparently took off his winter gloves to facilitate the stabbing or the rape, carelessly left them at the scene. Eventually, i.e., 22 yrs later as I said, sophisticated DNA testing proved that the DNA in the smidgen of semen on the victim's preserved underwear matched DNA from shed skin cells inside the gloves, but did *not* match Nick's DNA. His conviction and sentence were vacated with the consent of the DA's office, and he went free. The county's insurance company eventually paid him a couple of million dollars, because (inter alia) the gloves were never disclosed to the defense at or before trial for examination and testing. The trial record contains plenty of circumstantial and inconclusive evidence suggesting guilt -- enough for several courts to uphold the jury verdict -- but it was all misleading (at best) or wrong. That's pretty clearly what is meant by actual innocence, isn't it?

Now the arson cases, in my opinion, including Willingham's, are somewhat different. I have one of those cases (in PA) as well, which is presently pending on habeas. Unlike the DNA cases, the debunking of phony "arson science" that was generally accepted in and before the early '80s eliminates the evidence of guilt. There may even now be a new, powerful expert opinion (shared by several experts, even) that the fire was accidental. But in most of these cases (including Willingham's, as I understand it) the new evidence does not affirmatively *prove* innocence in the same sense, although it may indicate a high probability of innocence. I would hope that would be enough to overturn a death sentence (or a life sentence, for that matter) as a matter of due process and common decency, just like "actual innocence." While these cases are at least factually in a distinguishable category, our society and our legal system would not insist on "finality" of the flawed verdict in such a case.

Posted by: Peter G | Sep 5, 2009 9:24:27 PM

I think most of us lowly non-lawyers believe that the purpose of a trial is to determine the "actual" guilt or innocence of the defendant. What the Supreme Court and most of you seem to be saying is that the crucial thing is whether the proper bureaucratic procedure was followed. As long as the appropriate formalities were observed, whether or not the result was correct is not your problem. Actual guilt or innocence is irrelevant.

Imagine if doctors took this approach. We expect that if a doctor tries to treat our disease and the treatment doesn't work, he will repeat the procedure or try something else. If he discovers new symptoms indicating that his initial diagnosis was erroneous, we expect him to change his treatment accordingly until the correct result, namely a cure, is achieved. Of course, it is possible that all of his efforts will be in vain and the patient will not be cured, but we expect the doctor to try everything possible to save the patient. What if the doctor said, "You were diagnosed with disease X. The approved treatment for X was performed. It was not successful. That is not our problem. The appropriate formalities were observed. Nothing else is required. Die." You guys would be lining up to file a malpractice suit.

Too bad we can't file malpractice suits against attorneys.

Posted by: disillusioned layman | Sep 5, 2009 9:37:08 PM

D.L. - stop and think about your analogy for a moment. It is not the defendant's lawyer (analogous to the patient's doctor) who is saying that one seemingly fair trial is enough. It is that lawyer's adversary -- the prosecutors, representatives of the State -- and often the judges who are saying that. Those lawyers don't have clients who can sue them for malpractice. Many lawyers are devoting a good part of their professional lives to fighting for truth and justice in these post-conviction cases -- that is, criminal defense lawyers. I think your ire is misdirected.

Posted by: Peter G | Sep 5, 2009 9:49:32 PM

Disillusioned layman is (un)subtle supremacy troll.

Posted by: J.R. "Bob" Dobbs | Sep 5, 2009 11:25:21 PM

The Supreme Court has granted absolute immunity to legislatures, judges, and prosecutors. This immunity should be overturned by a statute. Each of these self-dealing, lazy, worthless incompetents needs to be deterred. The adverse third party should be able to sue them when injured by their carelessness. They are the lowest slime dealing themselves immunity.

Posted by: Supremacy Claus | Sep 6, 2009 12:09:04 AM

123D would solve the problem of false convictions. Say, beyond a reasonable doubt, means 80% certainty. This is a ridiculously, and totally unacceptable level of uncertainty. It needs to come close to 99% certainty.

However, with 123D, the odds of executing an innocent percent is less than 1%. Even if the third conviction is false, you are getting rid of a repeat violent offender with a much higher degree of confidence in criminal procedure than in the current farce.

The lawyer is the biggest troll of all, to the entire nation, and a real threat to our continued existence.

Posted by: Supremacy Claus | Sep 6, 2009 2:07:25 AM

To SC
Your first post sounds perfect to me. There always needs to be a tension to keep people doing their best, and being their most honest. That would do away with politicians grandstanding, with over zealous prosecutors who are advancing their careers, and I would love it if journalists had some sort of accountability applied to them.

Posted by: DLJ | Sep 6, 2009 11:52:54 AM

At the risk of sounding as fanatical as S. Clause, so-called journalism is free market capitalism at its worst. Journalism manufactures false premises and these false premises work their way into laws by being the inciting incidents. Is that what the SCOTUS really meant when it approved of states being experimental laboratories? Those who don't disrespect laws so passed possibly should.

This is SOP since the 30s and 40s:

"The city and county officals quoted in the Hearst papers were part of a 'stooge' list kept by Jim Richarderson, the city edtior of the Examiner, and Cappy Marek, the city editor of the Herald & Express and a longtime Hearst loyalist. The list contained the names and phone numbers of men and women who enjoyed having their names published. They were quite willing, on a moment's notice, to provide a quote on any subject. If a source on the list turned out to be unavailable, the reporter would sometimes make up a quote. No one on the list ever complained." *

There is no control group in this experiment save for some token defense attorneys that smile when they get slapped down by Nancy Grace. More constitutionalists and pro due process advocates could get themselves on their own "stooge" list with enough time and spine.

Tough laws based on truth and facts are one thing, making it possible to respect their validity, but based on propaganda and "White Lies" is quite another.

* Read Ink, White Lies: The rise and Fall of Los Angeles Newspapers 1920-1962, by Rob Leicester Wagner, p 173.

Posted by: George | Sep 6, 2009 1:03:41 PM

Peter G. I think the difference you attempt to draw between 'actual' innocence and 'legally' innocence is a distinction without a difference. It's vain word play that has no objective meaning whatsoever.

I am glad that you see a difference between the DNA cases and the arson cases. The fact the hack from Slate could not is what makes that post so stomach churning. As a scientist I am much more likely to give credence to DNA evidence than arson evidence. Indeed, the very fact that national experts where required to be called illustrates just how much arson "science" is akin to voodoo. The fact that some mumbo jumbo sounds more authoritative than other mumbo jumbo doesn't make it any less mumbo jumbo. The fact that three national experts looked at the case and all concluded it was accidental increases the probability that he's innocent but it doesn't increase it to the level of DNA evidence in my mind; it certainly doesn't affirm that he's actually innocent.

The problem as I see it is that both DNA evidence and arson evidence exist along a continuum of probability. As I define the term actual, that means 100%; that's the way the dictionary defines it. Not even DNA science claims the results are 100%. So even DNA evidence is not proof of actual innocence. Using the term actual in this context represents a deliberate attempt to mislead. Proof beyond a reasonable doubt is as close as the law (and human beings) will ever get to actual innocence.

Nor should my remarks be interpreted to defend as a defense of the pro-death penalty lobby. But if one is going to adopt an attitude of sanctimoniousness towards one opponents it's embarrassing to be caught acting just like them.

Posted by: Daniel | Sep 6, 2009 1:56:50 PM

Daniel: (1) Dahlia Lithwick is not a hack by any stretch of the imagination, and calling her names does not advance your argument, even when her column occasionally misses an important point.

(2) I didn't realize that in criticizing the use of the term "actual," you were just pointing out the distinction between scientific certainty (a mere probability, as you note, no matter how strong) and divine omniscience. If that's your point, you're not discussing problems in the real world, and I'm not interested.

Posted by: Peter G | Sep 6, 2009 2:31:05 PM

DLJ: the journalist code of conduct:

http://www.spj.org/ethicscode.asp

You have found a group with lower value and morals than the self dealing lawyer. The lawyer is honest about what he does, "I am an advocate. I have no duty to make the case for the other side." Everyone has notice of that aim. (What the lawyer fails to disclose is that he is working solely for himself and for the criminal cult enterprise (CCE) that is the profession, and not for anyone else. The client is the pretext to plunder our lawyer besieged nation on behalf of the CCE, history's most powerful criminal syndicate, controlling 99% of the three branches of US government.)

The journalist falsely swears to be impartial and to be complete in his reporting. The selection of the stories and the selection of the content of the stories are as extreme as the advocacy of the lawyer, mostly for Commie ideology and against our nation's continued existence. Yet, they are not honest about their Commie bias. They lie by omission. Unlike the lawyer, they fail to disclose their hidden Commie agenda. If anyone here has ever been quoted correctly in a newspaper, or not been made a fool, or not subjected to death threats after being in the paper, please, raise your hand, and tells us about this unheard of, unique experience.

The reporter's other job is to sell advertising, second only to the betrayal of the nation in importance to the reporter. That is so sacrosanct, it is not even mentioned in the Code of Ethics. If anyone has ever, ever read a critical story about Saks Fifth Avenue in the New York Times, please let me have the citation. This is a troubled company. Not a word from the NY Times. Yet, when Saks goes after employees on trivial gotchas, plenty of NY Times coverage.

http://www.reuters.com/article/pressRelease/idUS151985+18-May-2009+PRN20090518

http://www.nytimes.com/2009/02/27/nyregion/27saks.html

So the reporter has even less class than the lawyer. It gets even worse outside the US. Reporters have scanners to try to beat the police to the site of the car crash to publish pics of human organs flung into the road.

Only the convicted felon has less morals than the reporter and lawyer. The immunity for irresponsible, biased journalism is granted as professional criminal courtesy by the cult criminal on the bench.

Posted by: Supremacy Claus | Sep 6, 2009 4:44:24 PM

PG. Not to be flippant, but since when did you get to decide what was the real world and what was not. Have a pout somewhere else.

* Main Entry: ac·tu·al
* Pronunciation: \ˈak-ch(ə-w)əl, -sh(ə-w)əl; -chü-əl, -shü-\
* Function: adjective
* Etymology: Middle English actuel, from Late Latin actualis, from Latin actus act
* Date: 14th century

1 obsolete : active
2 a : existing in act and not merely potentially.


The distinction you so rudely dismiss is the distinction that exists in the very definition of the word you have chosen to use. Don't like that distinction. Chose another word.

Posted by: Daniel | Sep 6, 2009 8:53:14 PM

Not meaning to pout, or to prolong this dialog beyond its even potentially useful life, but I never chose to use the phrase "actual innocence." That expression was coined in 1993 by Chief Justice William Rehnquist in his opinion for the Supreme Court in Herrera v. Collins. I have only been trying to explicate for you and any other interested readers of this blog what the courts seem to mean by that notion, since you professed not to understand it. The phrase was picked up and used, mainly ironically, as the title for an important book, first published in 2000 and updated in 2003, by the founders of the Innocence Project, addressing the principal causes of wrongful convictions. Using a standard dictionary to debate the meaning of a word or expression that has acquired a particular significance in legal usage (or in any other specialized field) can be misleading.

Posted by: Peter G | Sep 7, 2009 12:05:12 PM

2 a : existing in act and not merely potentially.

Actually, this is a good enough working definition. While "existing in act" need not be absolute, but beyond a reasonable doubt, that is close enough for scientific theory (not absolute). Probable cause for arrest and being bound over for trial is until conviction "merely potentially."

In the arson case, since later science found that type of fire was not arson as previously thought, there is "actual innocence" because there was no arson "existing in act." Some "merely potentially" may still remain in some minds and may in every case no matter how innocent the accused is, but that does not rise to the beyond a reasonable doubt standard of "existing in act." In other words, if arson investigators knew then what they know now, there was not enough evidence for "merely potentially," hence, no arrest for arson.

Posted by: George | Sep 7, 2009 12:40:39 PM

I grant you boys, an innocent person was executed. Enough hand wringing and parsing.

What about the 17,000 extra-judicial executions that take place with the forbearance of the criminal lover lawyer year in, year out? That number represents a 40% drop since the 1990's after the guidelines percolated to the street.

There is also a possibility that number is a marked underestimate. If I were to murder someone, I would clean up after myself. There are 100,000 unresolved missing persons reports a year. Some were likely the victims of neat murderers. The number of murder victims may not be 17,000. It may be 77,000 for all we know.

Not a word about victims from the left wing ideologues and criminal lover lawyers. The lawyer is in utter failure in protecting the public, and should be fired from making policy in the criminal law. I would like to see federal marshals arrest the entire Supreme Court. Replace them with random members of the jury pool in Virginia. Or even by wine besotted, puking bums out of the gutter. There would be an instant upgrade in the intellectual quality of the decision and in their clarity. The lawyer is a total incompetent and in utter failure in managing crime in the US, or in protecting the public, the first and nearly sole aim of government. Get rid of the lawyer from the running of the criminal law.

Posted by: Supremacy Claus | Sep 8, 2009 12:56:54 AM

~ THE LOUD LAUGH OF SATAN WAS HEARD IN THE PEOPLES HALLS OF U.S. CONGRESS AND AMERICAN RELIGIOUS LEADERS HAVE TURNED THEIR HEADS,CLOSED THEIR EYES AND SHUT THEIR EARS IN FEAR ~

THIS OLD WORLD ORDER OF ABUSE AND NEGLECT OF OUR POORER AMERICANS NEEDS ENLIGHTENED POLITICAL MINDS AND HEARTS TO VIEW GOD DIFFERENTLY THEN $$$…. NO MATTER WHAT THEIR POLITICAL PARTY AFFILIATION ???

WHEN WILL OUR WEALTHY ELITE AMERICANS ABATE THEIR ASSAULT ON POORER AMERICANS WITH THEIR MONETARY CONTROL OF OUR IVORY TOWER U.S. CONGRESSIONAL LEADERS OF THE NEW WORLD ORDER ???

THERE ARE NOT MANY MORE DISTRACTIONS LEFT WHICH ARE AVAILABLE FOR OUR WEALTHY ELITE AMERICANS TO HIDE BEHIND IN NOT TAKING PROPER CARE OF ALL OUR AMERICANS IN A HUMANE FASHION !!!

RALPH NADER ATTEMPTED TO EDUCATE AMERICAN VOTERS ABOUT U.S. CORPORATE POWER IN AMERICA AND HOW THEY CONTROL OUR CONGRESSIONAL PEOPLE THROUGH THEIR POCKET BOOK (POLITICAL DONATIONS). * WITHOUT THE DOUGH $$$ THESE U.S. CONGRESSIONAL LEADERS OF THE FREE WORLD DO NOT GET RE~ELECTED TO CONGRESS.*TO STAY IN POLITICAL OFFICE IN AMERICA,ONE HAS TO BARTER YOUR VOTES IN CONGRESS AND REPRESENT POWER INTERESTS IN RETURN FOR THE BUCK$.

POORER AMERICANS HAVE NEVER HAD THE $$$ LOBBY TO INFLUENCE THIS CORRUPT POLITICAL CONCEPT (of horse trading political votes for political contributions) TO ACHIEVE PROPER HEALTH ~CARE OR LEGAL REPRESENTATION FOR ALL OUR MIDDLE ~ CLASS AND WORKING POOR AMERICANS.

AMERICAN IVORY TOWER U.S.CONGRESSIONAL LEADERS OF THE FREE WORLD HAVE PASSED FEDERAL LEGISLATION IN WASHINGTON DC TO SPEND 50 BILLION AMERICAN TAX $$$ ON THE INTERNATIONAL FIGHT AGAINST AIDS OVER THE NEXT FIVE YEARS WHILE THEIR OWN AMERICAN CITIZENS ARE BEING TOLD BY THIS SAME U.S.CONGRESS THAT NATIONAL HEALTH CARE AND PROPER LEGAL REPRESENTATION FOR MIDDLE CLASS AND WORKING POOR CITIZENS IS UNAFFORDABLE.

*** WEALTHY ELITE AMERICANS (WHO ARE ONLY 1% OF OUR USA POPULATION) SADLY ALSO CONTROL HOW OUR U.S.CONGRESS SPENDS THEIR BUDGET TRILLION$ AND HAVE OBVIOUSLY FOUND MORE WORTHY INTERNATIONAL CITIZENS THEN OUR OWN DESPERATE AND NEEDY POOR TO ASSIST !!!

~Poorer Americans Nationwide only get 400 million $$$ per year for legal representation allocated them by CONGRESS~

Middle Class and Working Poor Americans are unable to afford proper legal representation in their Civil, Criminal and Family Courts of law all across America causing tremendous hardships nationwide,but these great minds and callous hearts in our American Congress have found others Worldwide more needy then their own citizens who are being falsely incarcerated,wrongfuly executed,losing their homes or apartments,losing child custody or visitation with their children etc� Not being afforded proper legal representation by our U.S. Congress has created a total breakdown of the American judicial system for our poorer Americans because the our U.S. Courts punish all of us little people if we are not assisted with proprer legal counsel.

*It is a known fact that our average Middle Class and Working Poor Americans without proper legal representation in all of our American Courts of law lose their legal cases to the better financed who are able to afford lawyers.

Lawyers For Poor Americans is now actively in the hunt for International Countries and Leaders Worldwide to help raise 5 Billion Dollar$ for our slighted poorer Americans who have had their own American Congress turn their backs on their desperate needs in not affording them proper legal representation.

Troy Davis and Mumia Abu ~ Jamal are 2 perfect examples of American citizens who never had proper legal representation or defense investigations afforded them by our U.S. Congressional Leaders Of The Free World in their initial criminal trials in (Georgia and Pennsylvania) who might very well have to pay the ultimate price of possibly being completely innocent and falsely executed in the near future. These two poorer Americans are among tens of thousands of legal cases nationwide that never were afforded proper legal representation or proper defense investigations at their initial trials……**We the public really have no idea if these men are innocent or guilty until they both are given fair legal representation at their new future trials.

Improper murder trials and needless deaths due to the lack of healthcare take place in Third World Countries all the time. *** Why should average Middle~Class and Working Poor Americans in the Wealthiest Country Of The World be treated as if they are living a Third World Life Style ??

This is the first of many www International pleas by Lawyers For Poor Americans for other leaders and countries to help raise the needed monie$ to correct these blatant injustices that have been inflicted on poorer Americans for the last few decades. Lawyers For Poor Americans has many other written articles that can be viewed with any www search engine by our name or our telephone number.

Lawyers For Poor Americans is a www lobby group of volunteers that sing out about the decades old neglect,abuse and injustices being inflicted on our poorer Americans that have become Crimes Against Humanity issues for the International World Court to investigate.

lawyersforpooreramericans@yahoo.com
424-247-2013

Posted by: LAWYERS FOR POOR AMERICANS | Sep 9, 2009 4:27:22 PM

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