<< USDC San Diego Bombed | Main | News Scan >>


"Exonerated," Not Necessarily Innocent

| 2 Comments

The anti-DP crowd is crowing over another "exoneration," once again obscuring the distinction between inability to reprosecute and actual proof (or even evidence) of actual innocence. DPIC, for example, has this description of the case of Levon Jones in North Carolina. The headline begins "Innocence" even though the text of the story does not claim he is actually innocent.

The district attorney's press release is here. It turns out the witness recantation is only in an affidavit prepared by defense counsel. That is the weakest of all forms of evidence. It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground. But in this case, the witness won't speak to anyone from law enforcement. The DA believes she has been intimidated by the defendant. Two other witnesses in the case are dead.

What does it mean to be "exonerated"? The Oxford online dictionary says, "1 officially absolve from blame. 2 (exonerate from) release (someone) from (a duty or obligation)." If a person is released and the charges are dropped, the person is "exonerated" in the second sense. He has no remaining duty or obligation. He is not, however, absolved from blame in the sense of having been affirmatively shown to be blameless.

This is a vitally important distinction when the policy implications of cases such as this are considered. The requirement of proof beyond a reasonable doubt, along with other protections for the defendant, means that we tolerate a lot of guilty people going free. That happens on initial trials, such as O.J. Simpson, and it happens when convictions are set aside and cases are sent back for retrial. The fact that a few cases cannot be successfully reprosecuted a decade or two after the crime does not mean that the defendants were innocent. A few are, but not all or even most.

2 Comments

The sophistry shown by DPIC's use of this figure is stunning. A figure that anyone with an ounce of sense has to know is inflated by false negatives is being used to attack the system as being too harsh. In effect, the system's procedural liberality is being used against it.

"It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground."

I would add that the pressures on witnesses could, in some cases, be more than simply some persistent lawyer. Witness intimidation is a serious problem in many places in America, and it may occur in these cases too. I have a feeling the jurors who sentenced murderers to death face pressure to impeach their verdict when some investigator or lawyer comes calling. I don't envy the "Tookie" jurors who were contacted years later about their views on whether Tookie should be executed.

See Dobbert v. Wainwright, 468 U.S. 1231, 1233, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984) (Brennan, J., dissenting from denial of certiorari) (“Recantation testimony is properly viewed with great suspicion.”); see also Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir.1997) (en banc) (Kozinski, J., dissenting) (“Appellate courts ... look upon recantations with extreme suspicion.”); 58 Am.Jur., New Trial § 345 (“recantation testimony is generally considered exceedingly unreliable”)

Leave a comment

Monthly Archives