Fault Lines
9 December 2017

Distracted by the Feel-Good Story Of Innocence

May 4, 2016 (Mimesis Law) — In 1963, Paul Gatling entered a guilty plea to the murder of Lawrence Rothbort in the Crown Heights section of Brooklyn.  The alternative, he feared, was a death sentence.  So just before closing arguments at his trial, he sucked it up, entered the plea, and got 30 to life.  Even though he hadn’t killed anyone.

A few days later, he wised up, tried to withdraw his plea.  Denied.  Appealed.  Denied.  Got the evidence that he was innocent and went to the prosecutor.  Denied.  Went to the governor.  Denied.  Then, on his last day in office, December 31, 1973, Governor Nelson Rockefeller commuted the sentence.  But a commutation isn’t an exoneration.  Gatling was still a murderer.

Now he’s not.

Gatling’s 81 now.  Lives in Virginia.  Monday, he was exonerated.  Prosecutors acknowledged he’d been deprived of a fair trial and asked the court to vacate his conviction.

They said the defense was never told a purported eyewitness had been used repeatedly by prosecutors in other cases and had been convicted of perjury. Nor did they know of an eyewitness’ inability to identify Gatling as the perpetrator.

Gatling was in court Monday with Malvina Nathanson, the lawyer who, as a young attorney, was assigned his case in 1967.  She’s believed in his innocence all that time.

She said the proceedings marked a “kind of a bookend of my career.” Gatling’s case came to Nathanson at the beginning of her career. Now, as her career was starting to wind down, it was “marked by finally succeeding for Paul.”

Good for her.  Good for him.  It’s a great story.

It was a great story last month when Keith Allen Harward was exonerated.

A man who spent 33 years in Virginia prisons for a 1982 murder and rape conviction based largely on bite-mark identification was released on Friday after DNA tests showed conclusively that he was innocent.

Not all the stories are so great.  Take Frank Lee Smith.  He was exonerated from death row in Florida after 14 years.  Problem is that he died of cancer a few months before the exoneration.  Oops.

Andrew King and I have been squabbling here at Fault Lines (actually, in comments on a couple of his posts, see here and here) about finality v. fairness.

The innocent ones, they’re the standard argument for why fairness should win.  And, of course, they’re compelling.  Nobody really believes in an abstract principle that says it’s good to keep factually innocent people in prison.

But innocence is, when you get right down to it, a distraction.  We may not know just how many factually innocent folks are in prison, but it’s a virtual certainty that most of the folks there are guilty of something reasonably close to what they were convicted of.

What of them?  And what of us?

How smug are we when we think it’s okay because the sumbitch did it?  Which is, after all, the thinking that gets the innocent convicted.  And the guilty.  The point isn’t just to get the right result (whatever that might be), but to get it properly.  If the system is to have integrity, it has to have fairness not as an option but as a centerpiece.  Even when it’s hard.  Especially then.

This week the Supreme Court refused to hear the case of Richard Delmer Boyer, on death row in California. Justice Breyer dissented and thought the Court should hear the case (citations omitted).

Richard Boyer was initially sentenced to death 32 years ago. He now asks us to consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long. Boyer’s first trial ended with a mistrial after his jury was unable to reach a verdict. Boyer’s second trial, in 1984, yielded a conviction and capital sentence that the California Supreme Court reversed on the ground that police officers had obtained evidence by violating his constitutional rights.. Boyer’s third trial took place in 1992 and took 14 years to wend its way through California’s appellate process. In all, 22 years elapsed between his first trial and our denial of his petition for certiorari on direct appeal. Since then, 10 more years have elapsed.

It’s not about Boyer.  It’s about what kind of system we want.  It’s about what we value.  All those years, all those trials, it’s because the system didn’t work as it should – and that’s so regardless of whether Boyer is factually guilty.  And regardless of whether he deserves execution (whatever that mean).

In “In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects,” Abbe Smith, a law prof and former public defender, puts it simply (footnotes omitted).

[T]he 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.

Getting a factually innocent client exonerated is a wonderful thing.  Good for the client, good for the lawyer’s ego (and reputation).  And exonerations give us something to talk about when we argue for reform.  But if factual innocence is the test, then fuck the guilty.  Which is, after all, everyone who isn’t exonerated.

And that’s a real problem.

So good for Paul Gatling and Keith Harwood and the rest.  But pause in your congratulations to consider that the focus on the few proved innocent serves as a justification for whatever we do everyone else.

5 Comments on this post.

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  • Wrongway
    5 May 2016 at 3:13 am - Reply

    Damn!! Did you ‘drop the Mic’ after you wrote this ??

  • Peter Gerdes
    11 May 2016 at 11:52 pm - Reply

    “The point isn’t just to get the right result (whatever that might be), but to get it properly. If the system is to have integrity, it has to have fairness not as an option but as a centerpiece. Even when it’s hard. Especially then.”

    This seems a little confused. The *reason* we adopt a notion of a proper conviction or appropriate process is to avoid sending innocent people to prison. The reason for all the procedural rules is to ensure we get it right not to put on a show. What MAKES procedural rules fair is that they are a good (given the practical constraints) mechanism for accurately determining guilt.

    This confusion seems to come from your point here:

    “But innocence is, when you get right down to it, a distraction.”

    I agree that PROVABLE innocence is a distraction. The problem with focusing on provable innocence is that human fallibility means that many of those people we are virtually certain did something may well not have. We adopt procedure to ensure that biases and stereotypes don’t cause us to punish the innocent.

    Is it provable innocence you feel is a distraction? If not why is procedure even important in the first place? What distinguishes a fair procedure from an unfair (but explicitly spelling out and followed meticulously) procedure?

    • Jeff Gamso
      12 May 2016 at 9:16 am - Reply

      Innocence is a distraction when all we care about is whether we can feel good about the people we lock up because we just *know* they’re bad guys.

      Sure, the underlying idea is that proper procedures will protect against that. (Which is, often, arrant nonsense.) But the even more underlying idea is Blackstone’s ratio (or another version) which says that we care so much about innocence that we’d happily let the guilty off to be sure that we don’t convict the innocent. That’s a lovely idea the system’s defender’s like to pretend to honor but that we wholly reject in practice.

      But a fair system, one that says you don’t even convict the bad guys (whoever they are and if you can tell) by bending the rules, is how we go about providing what little teeth Blackstone’s ration has. It’s the way to protect the innocent, sure. But if all we focus on is innocence then we say unless you can prove it, tough shit. That’s not a justice (whatever that means) system, it’s a theocracy.

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