Learning from Libby
I Don't Have To Shave My Head ...

Does Innocence Matter? Part II

Michael Connelly's blog on sentencing and corrections issues is always a good read. Corrections Sentencing But I was more than a little surprised yesterday to read that my post on whether innocence matters was an inadvertent demonstration of what's wrong with the criminal justice system. I was also startled to read the accusation that my attitude leant succor to injustices by the Government. I tried to leave a note on that page, but couldn't. Herewith a response.

I do not believe in the inquistorial system, in which advocates and judge share the task of arriving at justice. When all the "professionals" in the criminal justice share the same goal, I believe there is a real and present danger that the client gets left behind, or is marginalized. The prosecutor and I in trial are not colleagues seeking to jointly determine what is true. The taks of determining what is true belongs to strangers in the form of jurors. My role is to challenge the reliability of the state's proof.

Thus, a client's claim of actual innocence is of value only insofar as it yields admissible evidence I can use at trial. Otherwise, it is an existential howl signifying next to nothing.

Does this attitude make me somehow complicit in a prosecutor's use of "injustice," whatever that may be? On the contrary. In our system, only the prosecutor is restrained by a duty to do justice. Defense counsel has no such burden. Our role is bounded simply by duties of zealous advocacy and candor toward the tribunal. I've never been accused of being a government lackey in trial.

Whether my client is factually innocent or factually guilty, themselves slippery concepts, is irrelevant to me. All clients deserve vigorous defense. I never tolerate government misconduct. Indeed, I suspect misconduct is more easily tolerated in an inquisitorial system where the counsel and court have the goals of arriving at justice and truth together. Does a defense lawyer who thinks his client is guilty drop his guard in such a regime? Probably.

I think Connelly is dead wrong about the impact of agnosticism on the criminal justice system. Far from undermining its credibility, it enhances it by proclaiming proudly that everyone is entitled to the same high standard of defense, regradless of what they have done. Such a system avoids the danger of the defense's being coopted by the prosecutor as both jointly pursue similar ends.

Truth and justice are easy words to toss around, but they are hard concepts to define. Connelly seems seduced by a too easy assumption that everyone can know, and will agree, on what these concepts mean. In the criminal justice system, the defense and the process are well-served by healthy agnosticism. We let juries decide the larger issues because we think the job of doing so is too important to entrust to entrenched and self-interested elites.

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