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February 9, 2011

"Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause"

The title of this post is the abstract of this new article by Professor Jordan Barry, which is now available via SSRN.  Here is the abstract:

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief.  Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions.  There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time.  This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution.  Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

February 9, 2011 at 09:13 AM | Permalink


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Page 6: "Worse, it enables the prosecution to change the story’s narrative from 'Wrongfully Convicted Man Freed' to 'Man Found "Innocent" Admits His Guilt.'"

Um, excuse me, but if he is in fact guilty isn't the truth coming out a good thing?

This, I suspect, is the real problem motivating the proposal. For an "exonerated" person to admit guilt or to be proved guilty throws wrench in the gears of the propaganda machine.

The Timothy Hennis case was a huge hit to the credibility of the so-called innocence list.

Posted by: Kent Scheidegger | Feb 9, 2011 2:54:30 PM

"Um, excuse me, but if he is in fact guilty isn't the truth coming out a good thing?"

Well that's a non sequitur: "admits guilt" ≠ "is guilty" - and largely for the very reason cited in the paper immediately preceding the language you quoted.

Posted by: Michael Drake | Feb 9, 2011 3:23:37 PM

If you wish, we can restate it in terms of probabilities. While it is possible that a person might admit guilt without being guilty, it is very much the exception, so while we may not know to a certainty that the person admitting guilt is guilty, we know it to a high degree of probability.

When the story's narrative is "Wrongfully Convicted Man Freed," the public gets the impression that the person is innocent without doubt. Every time I debate the death penalty in a forum with audience questions, someone brings up the "innocence list," and every single time that person is under the impression that everyone on it is certainly innocent. They are genuinely surprised to learn that many (perhaps most) are murderers who got away with it.

If the narrative is "Man Found 'Innocent' Admits His Guilt," the public impression is much closer to the very likely truth.

Posted by: Kent Scheidegger | Feb 9, 2011 5:52:59 PM

Maybe so kent and michael but it should STILL be illegal under the double jeopardy. Just like all these do over trials where the state takes someone not found innocnet OR guilty of some of the counts they have been charged with. Sorry those are just as much double jeopary as any thing else. You took em to trial you didn't get a CONVICTION....case is over...You don't get to get a new judge and set of juoror and take ANOTHER shot at it.

Posted by: rodsmith | Feb 9, 2011 5:59:55 PM

"If you wish, we can restate it in terms of probabilities."

Sure it can. But the relevant frame in this discussion isn't the likelihood of false confessions generally. Rather, it is the likelihood of false confessions under a pretty extraordinary set of conditions: (1) A court of appeals has found that the petitioner was "actually innocent." And (2) the petitioner is nonetheless being charged with the same crime, and exposed to the same punishment.

These two conditions affect the probability analysis in two corresponding ways. The first obviously undercuts our confidence in the original judgment of guilt. The second increases the likelihood that an innocent person would plead guilty, because the possibility of false conviction will have been made far more salient than it was ex ante.

If all of this has to be fixed in a narrative, then, it should be something more like "Man Found Actually Innocent Pleads Guilty After State/Government Threatens Repeat Prosecution for Same Crime."

Posted by: Michael Drake | Feb 9, 2011 7:11:12 PM

Em, I meant "sure we can."

Posted by: Michael Drake | Feb 9, 2011 7:11:50 PM

IIRC, the House v. Bell case discusses this. House didn't affirmatively establish his innocence (in the sense that he proved that he didn't do it), but only that with the new evidence and the old evidence that no jury would have convicted him--thus, retrial was permissible.

Any criminal trying to get a federal habeas court to undo his conviction on these grounds should be forced to waive his Fifth Amendment privilege.

Posted by: federalist | Feb 9, 2011 11:25:19 PM

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