Plea of Innocence , livre ebook

The Plea of Innocence
The Plea of Innocence
Restoring Truth to the American Justice System
Tim Bakken

NEW YORK UNIVERSITY PRESS
New York
NEW YORK UNIVERSITY PRESS
New York
www.nyupress.org
© 2022 by New York University
Paperback edition published 2025
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Library of Congress Cataloging-in-Publication Data Names: Bakken, Tim, author. Title: The plea of innocence : restoring truth to the American justice system / Tim Bakken. Description: New York : New York University Press, 2022. | Includes bibliographical references and index. Identifiers: LCCN 2022001981 | ISBN 9781479817122 (hardback) | ISBN 9781479840182 (paperback) | ISBN 9781479817139 (ebook) | ISBN 9781479817146 (ebook other) Subjects: LCSH: Criminal procedure--United States. | Law reform--United States. | Judicial error--United States--Prevention. | Evidence, Criminal--United States. | Plea bargaining--United States. Classification: LCC KF9619 .B353 2022 | DDC 345.73/05--dc23/eng/20220801 LC record available at https://lccn.loc.gov/2022001981
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Contents
Introduction: The Importance of Facts
Part I. Why Innocent People Are Convicted
1. Human Error
2. Devaluation of Freedom
3. Defense of Falsity
4. Emergence and Glory of Adversarial Combat
5. Alone with No Evidence
Part II. A Deficient Adversarial System
6. Convictions without Truth
7. The Lost Dialectic
8. Trials without Facts
9. Procedures over Evidence
Part III. Obtaining Correct Verdicts
10. Neutral Investigations
11. A New Procedure: The Search for Truth
Conclusion: The Plea of Innocence
Acknowledgments
Notes
Index
About the Author
Introduction
The Importance of Facts
A nineteen-year-old man beginning a life sentence for murder once told me when I worked in a legal assistance program that he was innocent and we should appeal to the U.S. Supreme Court to obtain his release. I don’t know whether he was innocent, but the reality is that almost none of the two million or so people in prison, as well as the millions who have been convicted of crimes in the United States, will ever be exonerated. Almost none of them will ever have a case heard by the Supreme Court.
The teenager, who would have been a high school student if not an inmate, had been convicted in Washington, D.C., and transported on a bus by marshals nine hundred miles away from his home to one of the relatively few federal prisons in the United States, in a rural town in a midwestern state. He had been found guilty by a jury, but, as we will see, a trial in the adversarial system is not designed to separate the innocent from the guilty. We know that juries convict a significant number of innocent people. The adversarial system, while providing procedures and processes, does not have a meaningful mechanism to permit innocent people to discover exonerating facts, present them at trial, and escape conviction once they have been charged with a crime. Emotionally and practically, the imprisoned teenager was alone, with no ability to find exonerating facts, and likely to remain in prison until well into middle age, possibly longer, or for life if not paroled.
The adversarial legal system is no system at all. Adversarial system is a term we’ve come to use to encapsulate all the ad hoc investigative procedures and rules of evidence for trials that have been collected in the common law countries over the past three hundred years, beginning in the late 1600s and early 1700s. Then, judges in England first allowed defense lawyers to participate regularly in criminal trials as a way to confront unreliable witnesses and limit death penalties for such crimes as “deer stealing” and “wrecking a fishpond.”
The system that developed is not cohesive, like a structure built from the ground up based on architectural plans. It’s a creaky cottage made of synthetic products, the purpose of one patch to repair leaks in the others, renovations of the day piled atop renovations from earlier generations, some of them necessary, but others inspired by ideological, political, financial, and professional self-interests of lawyers, the gatekeepers, who revere and elevate procedures over a search for truth. It is true that, in the absence of a plan, rules can arise from social practices and behavior. But the result will be more disorganized and haphazard than if a structure is planned and includes methods through which to reform it over the upcoming years. Where there is no scheme or plan, reformists are likely to misinterpret the reasons for the previous ad hoc changes and misconstrue how to coordinate old and new rules and procedures.
With its unrelenting combat ethos, the adversarial system, despite platitudes to the contrary, is devoid of a formal search for truth. Each year, law enforcement officers in the United States make more than ten million arrests. 1 Each year, the U.S. Supreme Court accepts for briefing and decision only twenty to thirty criminal cases, or fewer, fourteen in the 2021–2022 term, and almost all of those concern interpretations of federal statutes or the application of constitutional provisions to criminal cases. 2 To date, the Court has never held that it may reject a jury’s guilty verdict of a person who is “actually innocent.”
While almost all the participants within this system hope that only guilty people will be convicted, there is no one who must not rest until the truth is found, where truth is defined as a correct determination of whether a person committed a crime. With the defense institution privatized, accused people are responsible for finding the facts that can exonerate them. Yes, the poor are represented by public defenders—and, in fact, almost no one who is charged with a crime has enough money to pay for a complete defense—but they’re representing a private person. Defendants, like the teenager from Washington, not a public official, bear the entire burden of not only looking for exonerating facts but also proving their innocence.
Several years after speaking with the teenage prison inmate, I was working as an assistant district attorney in Brooklyn. In a courtroom, a defense attorney, about a month after a jury found his client guilty of robbery and moments before sentencing, told me that the client admitted to committing some robberies, but said that he did not commit this one. If true, this meant that the only eyewitness in the case had identified the wrong person.
Poor and unable to post bond, the client/defendant had been held in jail prior to the trial and could not participate fully in his defense. Because of a prior criminal record, he could not risk testifying and the jurors’ discovering his past crimes and believing that they indicated he committed this robbery. The only defense witness, his mother, produced an alibi that the jury apparently disbelieved. To date, there is no legal procedure or method in the adversarial system that would help this defendant find additional facts or permit him to tell his story to the jury without increasing the likelihood of conviction.
Indeed, most innocent people are unable to find or access the facts and evidence that could exonerate them. To rectify this problem, this book describes a fundamental reform to the three-hundred-year-old adversarial system: a formal plea of innocence and a requirement that truth be a goal in every case. In essence, the government should be responsible for searching for exonerating facts rather than being satisfied with due process. While it is improbable that all the facts in any case will ever be known, the essential conceptual point is that the acquisition of facts will almost always benefit an innocent person who has been accused of a crime.
Errors and Innocent-Person Convictions
Despite the hubbub and publicity surrounding litigation that has led to the release of innocent people from prison, the adversarial system has not accounted adequately for the one condition from which almost all innocent-person convictions originate: human error. Error lies within all the participants in the legal system, and because it is less observable and egregious than intentional misconduct, by investigators and witnesses, for example, it is difficult to detect and correct. Much of the error is inherent in the human condition and cannot be corrected. As a result, we should recognize that such error will recur and find a way to limit the number of discretionary decisions the participants in the system are required to make. The only way to do this is to collect additional facts.
That is, researchers have identified some of the most common errors that contribute to innocent-person convictions, but they are the same errors that have existed over generations. There are “at least eight major sources of wrongful convictions: (1) mistaken eyewitness identification; (2) false incriminating statements or confessions; (3) tunnel vision; (4) perjured informant testimony; (5) forensic error; (6) police error; (7) prosecutorial error; and (8) inadequate defense representation. . . . The most recent comprehensive compilation of exonerations in the United States confirms that the majority of cases involved at least one, but often several, of the above factors.” 3