Scott Henson at Grits for Breakfast poses a great question.  The question arises from a reversal of a conviction on appeal for insufficiency of the evidence.  The defendant then sought compensation, and was denied on appeal because presumed innocence isn’t the same as “actual innocence.”  Scott blogged about this in more depth at the Innocence Project of Texas.

Hence, the question:  Why is presumed innocence less worthy than “actual innocence?”

Lawyers understand the difference implicitly, the former being a failure of proof of guilt and the latter being affirmative proof of innocence.  This reflects lawyers skewed mindset, where we intellectually know the rationale but fail to adequately question the rationale to figure out whether it can withstand scrutiny.  In other words, we all know the rule, but does the rule really make sense?

Aside:  This is one of the things that I find most beneficial from the blawgosphere, where people raise questions or issue that lawyers have taken for granted for so long that we never consider questioning.  It’s a very good question, and without the blawgosphere and Scott’s having raised the question, we might never rethink what seemed too obvious.

The presumption of innocence is one of the law’s many clichés, repeated incessantly but rarely given much thought.  We don’t actually honor it, or believe in it.  I stumbled on Nancy Grace last night, after flipping off beach volleyball, and listened as one ignorant blond after another opined in some hick twang about how evil an accused was, and how she deserved ridiculous high bail because . . . she just did.  They could have mouthed words “presumption of innocence,” but they showed how meaningless the words have become.

The mantra “presumption of innocence” needs to be broken into two parts to be understood.  It is a presumption, in that a defendant need not prove innocence in the first instance.  The burden is on the prosecution to prove guilt.  They can rebut the presumption through evidence, and upon doing so beyond a reasonable doubt (whatever that means), the defendant loses the presumption.

But the second half of the phrase, “innocence”, means exactly what it says.  The defendant is actually innocent in every respect under the eyes of the law.  Fully, totally, completely innocent.  The defendant never has a burden to prove his innocence.  Usually, it’s impossible to prove innocence.  Aside form the rare instances where something like DNA is available, or a mysterious videotape appears, defendants are faced with accusation and denial.  That’s the sum total of the case.

When a court determines that the evidence of guilt is insufficient, that means that the prosecution has failed to satisfy its burden of rebutting the presumption.  It means that the defendant is restored to his position of actual innocence.  He is innocent, totally and completely and beyond question, innocent.  To say otherwise is to create a non-existent legal purgatory, that places the burden of proof on the defendant.  There is not now, nor has there ever been, an obligation of a person against whom an accusation has been levied to prove the accusation false.

The mindless lawyerly approach is to accept the notion, drilled into our heads in law school, that actual innocence is an entirely different animal than presumed innocence.  The animal is very rare, and hardly ever seen.  When it appears in the courtroom, we all look at it intensely, with amazement.  But this highly nuanced approach isn’t about innocence at all, but about the availability of proof of innocence. 

One reaction to the question might be to ask whether we “reward” someone for the prosecution’s failure to prove guilty as opposed to the defendant’s affirmative proof of innocence.  But is it a “reward” for the individual to demand recompense for harm done to him by the government?  This is compensatory, not the lottery.  No innocent person subjected to unproven accusations considers prevailing a windfall. 

But the larger question is what constitutes proof of innocence.  No one forces the government to arrest and prosecute someone.  Unlike the defendant, who has no option but to defend, the government picks and chooses its cases.  Theoretically, the prosecution should never lose a case.  The fact that is does, and that it’s evidence fails, is huge.  It means something when the government subjects a person to all its might and still comes up empty.  It may lack the satisfying certainty that affirmative proof of innocence may possess, but for many cases such satisfaction just isn’t within the realm of possibility.  Should the defendant be penalized because someone else’s accusation isn’t susceptible to negative proof?

How cool is it when there is evidence to affirmatively prove innocence!  Unfortunately, this opportunity isn’t available to all innocent people.  For those people for whom proof of innocence isn’t, and could never be, available, they are sentenced to spend their lives in the legal purgatory of “not guilty” rather than innocent.

Give this question the thought it deserves.  Don’t have the knee-jerk lawyer reaction of showing how you paid close attention in first year crimlaw and subsumed the myths that we’re taught to accept as truths.  How does one recapture innocence after an unproven accusation when there is no way to affirmatively prove innocence.  And why should one have to?