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March 19, 2016

"Voices on Innocence"

The title of this post is the title given to a collection of short essays by a number of notable authors now available at this link via SSRN. Here is the abstract for the collection:

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system — innocence.  Innocence is an issue that pervades various areas of research and influences numerous topics of discussion.

What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing?  What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations?  What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so, what does this mean for capital punishment? As these and other examples demonstrate, the importance and influence of the innocence issue is boundless.  As the group, representing various perspectives, disciplines, and areas of research, discussed these and other questions, it also considered the role of innocence in the criminal justice system more broadly and examined where the innocence issue might take us in the future.

This article is a collection of short essays from some of those in attendance — essays upon which we might reflect as we continue to consider the varying sides and differing answers to the issue of innocence.  Through these diverse and innovative essays, the reader is able to glimpse the larger innocence discussion that occurred in the summer of 2015. As was the case at the roundtable event, the ideas expressed in these pages begins a journey into an issue with many faces and many paths forward for discussion, research, and reform.

March 19, 2016 at 07:00 PM | Permalink


Talk to those that were innocent and forced to take a plea or was found guilty by the "pal system jury" without evidence provided by the DA (now Judge). Texas is a good place to start! A good honest investigator that knew his/her job would be worth gold to the people and would help to stop the corruption of our Judicial system.

Posted by: LC in Texas | Mar 20, 2016 1:41:28 PM

On the subject of Innocence. The law schools and indeed the so called legal experts fail to discuss the primary ground zero topic. "Sufficiency of evidence". Maybe I should have put the three words in all caps. It might get the attention of those out there with smart phones. A criminal case should not get through a Grand Jury and to the Indictment stage unless there is sufficient evidence for the next level of decision in the criminal prosecution, i.e. the jury trial or bench trial. Then at the bench trial level there should be a standard of proof beyond a reasonable doubt on all elements of the defense-- each element must have proof beyond a reasonable doubt. For a jury trial the evidence must be sufficient to submit to a jury and then on appeal or on review by the trial judge each element must be independently reviewed to demonstrate proof beyond a reasonable doubt that the defendant committed a crime on each element of the offense.

At a jury trial. At the close of the prosecution's case there must be a motion to dismiss and/or to acquit. The trial judge must make a fact determination that each element of the crime has been proven with sufficient evidence to thence submit the case to the jury for fact determination that each element has been proven beyond a reasonable doubt.

Lets discuss a common situation. Defendant Z (not Zimmerman) is charged with strangling his girlfriend. Her body is found in an outhouse thirty miles from their joint home (they lived together) and there is no evidence putting defendant Z at the crime scene. The cops clip some fingernails off of dead victim after a lot of gloveless cross contamination collection of other evidence. Dead victim had been driving defendant's car which he had driven earlier in the day. Twenty five years later the fingernails are taken out of an evidence bag which had a bottle of blood in it which broke and cross contaminated everything else in the bag. The fingernails are examined for dna. The defendant's dna matches dna found ON one fingernail. Victims fingernails had been examined at the year and day of death for tissue under the nails before they were clipped to see if she had scratched the assailant. The defendant had been examined that day 25 years back to see if he had scratches. No tissue under the nails and no scratches on defendant. The only evidence presented at trial which puts the defendant into an element of the crime (presence at the crime scene murder) is this dna. Yet they had lived together, shared a home, a car, had been together and touched each other an hour before she left home to go galavant around on a drinking binge. The dna could have been put on the nail in 1982 at the date of death by the cop who was handling everything without gloves or notions of what DNA cross contamination might be.

The defendant's motions to dismiss at trial are denied. Jury convicts. State Supreme Court will not follow federal constitutional jurisprudence on sufficiency of evidence in a circumstantial evidence case. Jackson v. Virginia and other cases. The case is now in the Supreme Court of the United States again on a habeas motion.

Many states are UnReconstructed and will not follow federal jurisprudence on the 14th Amendment and 4th or 5th Amendment arguments and many states will not follow or even discuss Jackson v. Virginia. This is a huge problem for America. Land of the Free and home of the stupid.

If you are interested then follow State v. Donald Nash which is in the U.S. Supreme Court. He is a 75 year old man who is dying in a Missouri prison and been there for 8 years on this flimsy so called "evidence". The dna on the live-in girlfriend's fingermail could have gotten there from many touching events including a consensual sex event a day before the murder. Who knows how it got there? It does not prove an essential element of the case. An innocent man is in prison and his name is ruined. No one in the State of Missouri cares. The legal community, the Missouri Bar Journal and Missouri Esquire are ignorant of the issues. The weekly discussion of decided cases in Missouri Esquire does not even include federal cases. That is how dumb Missouri lawyers care to be. Went in dumb, come out dumb too.

Discuss this topic on Sentencing Law and Policy. Please.

Posted by: Liberty1st | Mar 21, 2016 6:47:30 AM

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