Protecting the innocent: part of the solution for inadequate funding for defenders, not a panacea for targeting justice.

• Author: Mosteller, Robert P.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

1. INTRODUCTION

   In this Article, I examine an important connection between society's concern with innocence--fueled by numerous wrongful convictions revealed by newly available DNA testing--and past and future progressive changes in criminal justice practices and policy. In Why Defense Attorneys Cannot, But Do, Care About Innocence (Caring About Innocence), I argued that, while the drive to protect the innocent has the potential to divide progressives in their support of indigent defense if targeting reforms only at the innocent is seen as possible, concern for innocence should instead drive a renewed effort to secure adequate funding for representing all those accused of crime. (1)

   Defense attorneys, and especially defenders of the indigent who have little or no control over client selection, assist many defendants who are guilty. Nevertheless, the essential point that excellent defense services protect the innocent has been recognized with admittedly varying levels of intensity by quite different observers. Attorney General Janet Reno stated the point very directly: "In the end, a good lawyer is the best defense against wrongful conviction...." (2) Professor William Stuntz made a similar observation, although his focus was accuracy rather than innocence: "Gideon and the reasonable doubt rule are essential to any adversarial system that takes accuracy seriously." (3) What is needed now in an age that values innocence is to understand that this argument is more than a theoretically sound abstraction. Good indigent defense is important, and indeed necessary, innocence work. It must be done well, or we betray our basic values: to provide justice regardless of poverty and to protect the innocent. The innocent should not be erroneously charged, but, if they are, they at least deserve to have a full and fair trial, which gives our imperfect system its best chance of avoiding error.

   Professor Stuntz' different concentration on accuracy instead of innocence raises a question of the appropriate focus of the issue. (4) Innocence protection and accuracy are not identical, and system responses may diverge depending on what goal is given greater importance. Greater protection against convicting the innocent often increases errors, allowing the guilty to escape punishment, and may even decrease "fact-finding precision" in terms of total volume of error. (5) Good defense work does not necessarily improve overall accuracy. However, our legal tradition does not treat all errors equally and instead prioritizes avoiding unjust convictions rather than erroneous acquittals. (6) It is not necessarily correct that excellent defense work improves criminal justice system accuracy if erroneous acquittals are counted on par with erroneous convictions. However, with the understanding that erroneous convictions are far more serious than are erroneous acquittals, excellent defense work achieves greater accuracy in terms of the satisfaction of society's values.

   A major point of my earlier article, Caring About Innocence, is that innocence cannot be known, and often not even subjectively believed, in many of the types of cases that resulted in erroneous convictions of the innocent as revealed by DNA evidence. (7) I will address that basic point with greater care in this Article with a focus on the false assumption--which, ironically, DNA exonerations might encourage (8)--that typical defense work generally does not involve cases where defendants might really be innocent. Assuredly, defense work is about more than innocence, but innocence protection is a key element of it. A widely shared, albeit erroneous, assumption, even by relatively sophisticated observers, is that insiders in the criminal justice system, and defense attorneys in particular, can and do actually know which clients are innocent or likely to be innocent.

   The most daunting problem with reducing erroneous convictions is that many of these cases are indistinguishable from "garden variety" cases in which the client appears to be and is in fact guilty of the charged offense. The innocent are often found in cases that do suggest reasonable doubt and the possibility of innocence but where the objective facts do not necessarily show that innocence is probable. The one type of case that defense attorneys rarely or only momentarily face is that of the obviously innocent client. For those who doubt the accuracy of this final claim, I suggest the relatively obvious point: if anyone in the system--defense attorney, prosecutor, or police officer--knows the defendant is innocent, that case will be immediately dismissed upon discovery of the clear evidence of innocence upon which such knowledge is based. (9)

   Since the problematic cases of unjust convictions do not come with obvious markings of innocence, defenders must necessarily represent the guilty well if they are to represent effectively all those who are innocent because they are unable to separate the two in many situations. Defenders could not even attempt a serious effort to separate the guilty from the innocent before trial without substantial effort, which would be impossible in the current funding environment because resources would not permit it. If one either believes in the fundamental importance of an adequate defense in the American adversarial system or places importance on protecting the innocent and accepts the assertion that, in the real world, criminal cases are characterized by uncertainty, support for adequate funding for indigent defense necessarily follows. Indeed, there is no realistic alternative. Theoretically, more selective strategies to protect the innocent may be formulated, but they do not withstand careful scrutiny in light of the complicated features of relevant cases in which innocence may be found. Therefore, adequate funding for indigent defenders should be a central principle for all who value protecting the innocent from unjust convictions. (10)

   In this Article, I examine the uneasy relationship between the contemporary concern with protecting the innocent and the need for adequate funding for representing indigent defendants, who, I accept, are predominately guilty. Even though defenders in their day-to-day work do not find it easy to talk about innocence because it is virtually impossible to continue representing all clients with vigor if innocence were the immediate concentration of defense work, the message must be communicated that the work of defenders is critically important in protecting the innocent. Innocence protection is a central component of the argument for adequate defense funding. This is not only because it is politically necessary, but also because it is fundamentally true. I will critique two different proposals by very talented and well-meaning academics, who, I argue, are seriously misguided because they assume defenders or the indigent defense system can either meaningfully separate the innocent from the guilty at an early stage or separate the truly innocent from those with a reasonable doubt of guilt.

   Innocence might be used as a "wedge issue" by some to divide deserving innocent defendants from undeserving guilty ones and thereby divide progressives and undermine support for reforms benefitting defendants generally, (11) but that is obviously not the intent of these reformers. If any make that cynical use of society's admirable priority of protecting the innocent, little stated in this Article would matter. By devoting greater attention to the practical impossibility of separating the innocent from others before trial, I hope to avoid concern for the innocent becoming an impediment to fixing the problems that can be remedied by adequate defense funding. Indeed, that concern should be harnessed to increase funding for defenders. However, neither avoiding damage nor reaping benefits from society's proper concern for innocence protection can occur unless two potential erroneous arguments are addressed and corrected. First, despite the misguided assumption of some, innocence cannot be known effectively beforehand in the types of cases that result in unjust convictions. Second, innocence protection could not be achieved through narrowly targeted efforts if defenders were directed to represent fully only the apparently innocent instead of providing adequate resources for the defense of all clients.

   In Part II of this Article, I address my central factual claim that innocence is not knowable in the problematic cases that currently produce erroneous convictions. Instead of appearing to be innocence cases, these problematic cases raise doubts about guilt, and the defense usually presents them to the jury as cases of reasonable doubt. Tried by well-funded adversaries, a percentage of these cases will result in erroneous convictions of the innocent, but fewer of them. And the innocent indigent defendant will receive all that society can guarantee in a system where humans deal with uncertainty--a fair proceeding. In addition, much defense work provides fairness to those without financial means who are guilty and who ultimately acknowledge their guilt.

   In Part III, I examine a proposed partial solution to inadequate funding: a specific application of rationing, or a rational triage system, whereby inadequate resources are put to the best possible use. I examine specifically a proposal by Professor Darryl Brown that attempts to prioritize representation of the likely innocent. (12) I conclude that his proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, the apparent promise for more efficient allocation of resources can undermine arguments for adequate defense funding by suggesting that the priority cases can be defended well only if defenders focus their efforts on clearly observable pretrial indicators of likely innocence.

   In...