New Scholarship Spotlight: Freeing the Guilty without Protecting the Innocent: Some Skeptical Observations on Proposed ‘Innocence’ Procedures

bio-2Utah professor Paul Cassell has posted the above-titled article on SSRN.  Download here.  The abstract states:

Proceeding from the perspective of “innocentrism” (that is, the idea that exoneration of the “innocent” ought to be privileged over other values in the criminal justice system), I suggest eight proposals for reform: (1) researching the frequency and causes of wrongful conviction; (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium); (3) improving the implementation of existing rules on disclosing exculpatory evidence; (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence; (5) abolishing the Fourth Amendment exclusionary rule; (6) replacing the Miranda regime with a system of videotaping custodial interrogation; (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and (8) requiring defense attorneys to directly ask their clients if they are actually innocent. These discriminating proposals offer a far greater prospect of providing help to the innocent without blocking conviction of the guilty. A common theme underlying many of them is that they reorient the focus of the criminal justice system away from procedural issues and toward substantive issues of guilt or innocence. Sadly, Bakken’s proposals seem to offer too much procedure and not enough substance, a recipe for helping the guilty. The truly innocent will benefit in a system that values substance over procedure.

 

One response to “New Scholarship Spotlight: Freeing the Guilty without Protecting the Innocent: Some Skeptical Observations on Proposed ‘Innocence’ Procedures

  1. Docile Jim Brady – Columbus OH 43209

    Interesting eight proposals for reform.
    (1) researching the frequency and causes of wrongful conviction;
    Agree , but it has been repeatedly researched.
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    (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium);
    Agree , especially when an innocent pleads guilty to a lower offense .
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    (3) improving the implementation of existing rules on disclosing exculpatory evidence;
    Agree , including allowing civil damages to innocent victims who have suffered egregious hide and seek by rogue prosecutors and police, imprisonment for extreme cases of rogue conduct.
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    (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence;
    Agree , and add severe sanctions for refusing to evaluate innocence issues.
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    (5) abolishing the Fourtih Amendment exclusionary rule;
    STRONGLY DISAGREE. The rule helps keep honest police honest.
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    (6) replacing the Miranda regime with a system of videotaping custodial interrogation;
    DISAGREE: Would deny equal protection to those who had no exposure to the rights enunciated in Miranda.
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    (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and
    VERY STRONGLY DISAGREE ‼ Read Moore v. Dempsey (1923); Gideon v. Wainwright (1963); Sheppard v. Maxwell; Brady v. [Judge] Blair, Judge (1973 ? ); and many , MANY , habeas cases that held release on grounds other than actual innocence.
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    (8) requiring defense attorneys to directly ask their clients if they are actually innocent.
    Disagree. The role of the criminal defense bar in an adversarial system is to ensure that their clients receive the Constitutional rights and statutory protections guaranteed in a criminal proceeding.
    In fact , the defendant may not know enough criminal law to determine whether he or she is innocent of the offense charged or whether the forbidding legislation is VOID for vagueness or voidable due to unique facts as applied to the defendant ‼
    It has been a while and although the defendants were innocent; Powell v. Alabama 287 U.S. 45 (1932) and Norris v. Alabama 294 U.S. 587 (1935) were decided and death sentences reversed with orders for a new trial on grounds other than actual innocence.

    ☺ Just my 2µ¢ worth. ☺
    Nemo Me Impune Lacessit

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