Do Innocence Projects Make Criminal Defense Harder?

Criminal defense attorneys have been embracing the idea that post-conviction innocence projects has made criminal defense harder. A little over a year ago, a criminal defense blogger I long followed called it one of the “dirty little secrets,” of the defense world, while also acknowledging the project “far exceeds any problems it causes.”

More recently, Ron Kuby cited Professor Abbe Smith’s article—and her thesis that these projects have fetishized innocence at the harm of the guilty. Professor Smith’s article herself notes three primary complaints about the innocence movement: (1) it has an air of arrogance, (2) it is not the best currency for criminal justice reform, and (3) law school innocence projects teach our students the wrong thing.

I don’t find Professor Smiths’ first argument all that compelling – she uses a silly 2008 email flyer from something called the Midwestern Innocence Project as a strawman to reach a general conclusion that there “is an arrogance to the ‘innocentrism’ of the innocence movement.” (I’ve never heard of the Midwestern Innocence Project and google can’t seem to find it either.) While her third point—what we teach our students—does interest me, it is collateral to the question raised in the header, so I will leave it for another day

The question of whether my work as an innocence lawyer is a good vehicle for criminal justice reform—or, perhaps more narrowly, whether it facilitates a more robust application of due process and beyond a reasonable doubt—interests me greatly. Smith argues that “the defendant with the factual innocence story throws every other defendant under the bus”:

Factual, DNA-proven innocence poses a threat to the fundamental legal principles underlying our system of justice, in particular to the presumption of innocence. The more we focus on those who can actually be proved innocent, the more we undercut the right of everyone to be presumed innocent unless the state proves otherwise. Our system of justice emphasizes proof, not truth, because of the value we place on individual liberty and our abiding skepticism of state power. To check that power we give the benefit of every reasonable doubt to the accused even if he or she did it. Thus, if proof is lacking, a factually guilty person may nonetheless be legally not guilty. A single-minded focus on factual innocence threatens this important safeguard, this check on the hubris of power.

Once again, however, Professor Smith speaks without any concrete examples. I’m left wondering, how, exactly, does a “single-minded focus on factual innocence” undercut the presumption of innocence or a check on the “hubris of power?”

On the contrary, I’ve seen time-and-time again innocence cases doing the opposite. Take the provably-innocent man who falsely confessed. Beyond the vague notion that this false confession demonstrates to jurors and the world at large that false confessions are a reality and may cause a level of healthy skepticism when faced with evidence of a confession—it does something far more concrete: For every interrogation-induced false confession, there are police officers who coerced it. And the credibility of that police officer, in unrelated cases thereafter, may be impugned by his responsibility in convicting an innocent man. That helps the factually-guilty confessor, too—and certainly facilitates a check on the power of the State.

Here’s another example. Ben Baker is factually innocent of a 2006 drug conviction: He was framed by a corrupt police officer who is now a federal convict—Sergeant Ronald Watts—because Baker refused to pay him off. He was released this past January after almost a decade of prison and has a certificate of innocence now.

But you know who else framed him? The three other police officers who testified in 2006 corroborating Sergeant Watts’ false testimony.  And you know what has happened to those officers? Absolutely nothing. They all remain on the force, making arrests, recommending charges, and testifying in court to this very day. The fact that these cops lied—and not because some defense attorney says they are lying but because a court has certified Ben Baker innocent proves they lied—must call into question all of their testimony and actions as police officers. Even these officer’s “good” arrests of the factually guilty must be scrutinized more closely.

Ben Baker is a concrete example of how “fetishizing” innocence may, in fact, give a criminal defense lawyer just a tad bit more ammo. There may be problems with the Innocence Movement, but I’ve yet to see the concrete evidence that it somehow minimizes the safeguards given to the criminally accused.