The Dark Side of Innocence

By David Feige

Michael Mercer was released in May after serving more than a decade in prison for a rape he did not commit. He is the most recent of at least 128 people to be set free by DNA evidence.

A steady stream of exonerations is shedding new light on just how fallible the criminal justice system is. From eyewitness identifications to false confessions, criminal convictions are being re-examined with an ever more sophisticated eye. There is more talk, too, about what we can do to protect the innocent. The issue comes up not only among the criminal defense bar but also at cocktail parties and in Congress. Innocence projects are springing up all over the country, and two states (Illinois and Maryland) have experimented with a moratorium on the death penalty for fear of executing the innocent. An entire innocence movement is afoot.

There is something a little scary about this, though, especially for those most interested in protecting and defending the rights of the accused. The obsessive focus on innocence runs the risk of eclipsing what should be the central issue of the criminal justice system -- protecting the rights of everyone. The more that we highlight the rare cases in which innocence can actually be proved, the less we focus on the right of all to the presumption of innocence. So while criminal-defense attorneys may be gleefully reaping the rewards of DNA exonerations now, the long-term impact may be more pernicious than they anticipate.

The reason everyone is talking about protecting the innocent is simple. It is one of the only things in the criminal justice system that everyone can agree on -- Republicans and Democrats, prosecutors and public defenders. And it is because everyone can finally agree on something that the rhetoric of innocence has become the dominant discourse within and about the criminal justice system.

The media has also jumped in. Month after month, newspapers and magazines run stories featuring the faces of the falsely accused. Movie stars like Richard Dreyfuss, Mia Farrow and Jeff Goldblum have lined up to perform in ''The Exonerated 2/3'' a play that recounts the tragic stories of wrongly convicted death-row inmates. Several groups are already lobbying legislatures in an attempt to compensate the exonerated for the lost years of their lives.

All this attention has had some wonderful effects. Not only are the innocent exonerated, but a healthy skepticism has also begun to take hold in the criminal justice system. Jurors are learning that despite prosecutors' claims to the contrary, a confession or eyewitness identification may not be a perfect predictor of guilt.

But while DNA evidence has given us a definitive look at a certain segment of criminal cases in which biological evidence is deposited, recovered and preserved, these clear cases are few and far between. The reality is that most criminal cases are muddled, confusing affairs, rife with conflicting testimony, jumbled loyalties, complex motivations and equivocal evidence. In the vast majority of cases, proof of innocence simply can't be established. Because of this reality, the criminal justice system has developed an arcane but workable system for approximating a truth that is, in all but the most exceptional cases, unknowable. It is a system that relies on fundamental rights afforded anyone accused of a crime: proof beyond a reasonable doubt, conviction by 12 unanimous jurors and, perhaps most important, the presumption of innocence.

As anyone who has served on a jury or watched a legal TV show knows, our standard of proof does not even contemplate innocence. Juries across the country render a verdict of guilty or not guilty (short for ''not guilty beyond a reasonable doubt''). Innocent isn't a choice. The danger is that the rhetoric of innocence will function like a Trojan horse, an easy way for conservatives to hijack criminal justice legislation and decision-making, rolling back what they view as the reviled rights of criminals, in favor of protecting a tiny number of demonstrably innocent citizens.

Last month, a coalition of advocates for the exonerated initiated a program to help wrongly convicted inmates recently released from prison deal with the stresses of re-entry to the world. The group offered psychological evaluations and an assessment of needs related to housing, health care and jobs. It sounds fantastic. But it is limited to the exonerated. Prison is a brutal, dehumanizing place. And guilty or innocent, ex-inmates emerge into a world ill suited to receive them, generally without the skills they need to adapt and prosper. More than two million people are currently behind bars. Almost all of them will re-enter society, and almost all of them could benefit from the kinds of resources the program currently seeks only for those like Michael Mercer.

Eager for public support that has long been denied, even defenders of the criminally accused are beginning to fall for the widespread embrace of innocence. Some public-defender offices have even begun creating their own in-house innocence projects. Each of these moves could fundamentally alter the way the legal system conceives of rights, upending notions that we all take for granted now, like the burden of proof -- which does and should lie with the prosecution, rather than with the defense -- and the presumption of innocence, rather than the proof of it.

The best way to ensure the integrity of the system is to insist ever more stridently on protecting these notions and ensuring the rights of all. There is, in this, a good lesson for all those riding the wave of innocence: Beware the hubris of certainty.

David Feige is a public defender in the Bronx. He last wrote for the magazine about how to defend someone you know is guilty.

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