Has Innocence Lost Its Meaning?

A New York Times op-ed raised a serious question, does factual innocence matter anymore?

SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

A strong and compelling opening to a question of fundamental importance.  If nothing else, most of us have an innate sense that the purpose of the criminal justice system is to convict the guilty without convicting the innocent.

There are some who will shrug, that no system can be so perfect as to sacrifice no innocent person to the cause of safety.  As my old train buddy Mike, who went to La Salle Academy with Nino Scalia, used to say, “every once in a while, you have to take one for the team.”  Not that Mike would volunteer.  He was such a kidder, that Mike.

But the author of the op-ed, Emory lawprof Julie Seaman, moves quickly from her strong opening salvo to reveal her hand.

The police and prosecutors did not test the stolen items for DNA, and any evidence aside from the gloves has apparently been lost or destroyed by the state. For reasons unknown, Mr. Bharadia’s trial attorney did not request DNA testing.

DNA!  The salvation of the innocent.  And the nail in the coffin of the guilty.  The prosecutors in Sandeep Bharadia’s case didn’t test it. Aha!  And the defense lawyer didn’t test it either. Double aha!!!

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

The star witness against Bharadia was a snitch named Flint. He cut a deal to testify against Bharadia, and was rewarded with a 24 month sentence.  Want to guess whose DNA was on the inside of the gloves?

The court declined to order DNA testing of Mr. Flint, and no new trial went ahead. But several years later, the Georgia Innocence Project took on Mr. Bharadia’s case, and his new attorneys filed a motion that the DNA results be run through the national Codis DNA database. Finally, in 2012, there was a hit: The male DNA belonged to Mr. Flint.

So it took a while, but the real perpetrator was finally revealed, and Bharadia, who may have had some involvement (or may not have had any at all) is finally shown to have, at the very least, been convicted for more than he deserved.  To which the court shrugged.

With this new evidence, Mr. Bharadia’s lawyers moved once again for a new trial, so that a jury could consider the DNA evidence suggesting that Mr. Flint, rather than Mr. Bharadia, had worn the gloves used during the assault. However, under Georgia precedent, a defendant is not entitled to a new trial based on new evidence if the court finds that he could have discovered the evidence at the time of the original trial, had he or his lawyer been diligent enough. Such requirements, which are common, are designed to prevent convictions from being endlessly re-examined.

Seaman goes on to the standard caveat about indigent defenders being overworked, underpaid and overworked, because their failure isn’t their fault either. But in doing so, shifts the blame to the interests of finality while leaping over a problem that distinguishes what happens to a defendant like Bharadia from others.

The underlying doctrine is that a defendant has a right to counsel, and in exercising that right, is bound by his lawyer’s choices.  In this case, the lawyer could have sought testing of the DNA but failed to do so.  In other words, the failure wasn’t because of the system, but because the lawyer blew it.

Too bad, so sad. Don’t blame the system. Blame the lawyer.

This is doctrinally wrong at multiple levels.  First, a defendant is entitled to effective assistance of counsel, meaning that it isn’t sufficient to get a warm body standing next to you, but one that does his job sufficiently well that they don’t make an obvious, unjustifiable and inexplicable mistake.  Except Strickland v. Washington.

When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

Why must the court “indulge such a strong presumption”?  Hell, because you chose that mutt of a lawyer to be your advocate, so you suffer his inadequacies.  His website said he was the ginchiest lawyer ever?  Bummer, you fool. Welcome to reality.

While it’s bad enough that a defendant be saddled with the flagrant inadequacies of his retained lawyer, as there is at least a measure of choice involved, even if modern shills proclaim the need for freedom for lawyers to lie so they can scam ignorant defendants into paying them money despite their incompetence, what about the indigent?

Faulty convictions happen for many reasons: because juries are composed of human beings, who are fallible; because witnesses feel certain but can be mistaken; and because defense lawyers, particularly those representing indigent defendants, are notoriously overworked and underpaid. The issue is what courts should do in the face of strong evidence that the wrong person has been punished. (Emphasis added.)

This is where the argument takes a blind leap off the edge of the cliff.  First, defense lawyers representing the indigent have no lesser duty of zealous representation.  Yes, they are notoriously overworked and underpaid. Tough nuggies. They’re still lawyers, and they still have a duty to their clients.

There is a shrieking chorus, not to mention a cottage industry, rubbing the tummies of lawyers who fail their clients.  It’s so unfair to expect you to fulfill your responsibility. Law is so hard. It will make you sad and miserable. Don’t you deserve happiness? Aren’t lawyers as entitled to earn a living, love life, screw up and not feel bad about it?

No. Law is a profession, not a job. Law is a duty, not an excuse. The apologists for a lawyer’s failure to fulfill their duty are dead wrong, dangerously ignorant and responsible for the lives they destroy. That’s what it means to be a lawyer.

When Seaman indulges the apologists’ perspective, she undermines the argument.  The response to overworked, underpaid indigent defenders isn’t to make excuse for their failure, but to fight the wrongfulness of a conviction caused by their failure.  A lawyer’s failure is not a sound reason for a defendant to be convicted.  And that holds true even when the lawyer is overworked and underpaid. That holds true even when whiny morons wring their hands over how hard it is, how nobody’s perfect, how lawyers deserve to be happy.

Blame the lawyer. Blame the system that overworks the lawyer. Blame the Supreme Court for that nightmare of a decision, Strickland, that reduces the right to effective assistance of counsel to a joke. Blame the lawyer who failed his client.

But that doesn’t completely address Bharadia’s situation.  He didn’t get to pick his lawyer. He got what they gave him, whether great or crap.  And if he got crap, as he apparently did, why is he stuck with the bad choices some lawyer he didn’t choose made for him?  The fiction of the defendant being accountable for the choices of his lawyer unravels when he had no say in who spoke for him.

This issue is raised by Bharadia’s conviction. Until this becomes the focus of attention, our own focus on our own failings, Nino Scalia will laugh his butt off on laying blame on the Supremes for not caring enough about the conviction of the innocent.  It’s time for lawyers to stop becoming self-apologists, and for the incompetents, the failures, the narcissists and the miserable, to stop blaming others and be accountable for our own failures.  It’s time for us, the lawyers, to take one for the team. The defendant may be innocent, but the lawyer’s not.



16 thoughts on “Has Innocence Lost Its Meaning?

  1. Eliot Clingman

    Great post, you prickly pear, you! As you say, Strickland reduces the right to effective council to a near fiction. It reminds me a lot of a sleazy used car dealer refusing to honor his 90 day guarantee based on fatuous excuses.

    Yes the supreme Court are sleazy…. Under their somber black robes they are (metaphorically) wearing stilletoes and hotpants!

  2. morgan sheridan

    It is because of writing like this, I suppose, why non-lawyers also appreciate this blawg. Thank you.

  3. pavlaugh

    “For reasons unknown . . . .” That’s a troublesome phrase when the defense lawyer is being blamed with allusions to ineffective assistance.

    1. SHG Post author

      Had we not known that the DNA on the glove didn’t come back to Bharadia, the “reasons unknown” would have presented a very different issue. For example, the reason defense counsel didn’t seek DNA testing is because he knew his client was guilty and didn’t want to hand the prosecution conclusive proof. But given the outcome, and lack of any viable alternative explanation for the failure to test, there is simply no acceptable justification.

      1. delurking

        There is a lot we don’t know. It is at least plausible that the defense counsel believed his client was guilty. If the client obviously lied to the defense counsel multiple times (that happens, right?), perhaps the defense counsel felt that getting the DNA test was too risky, despite any client protestations that he never wore those stinkin’ gloves.

        1. SHG Post author

          No. This is where lawyers and non-lawyers may see things differently. Regardless of anything else, if the defendant insists that he did not do the crime, there is no possible way that his DNA could be on the gloves, and that the gloves be tested, there is no excuse not to have the gloves tested.

          If the defendant is a liar, then he will live with the consequences of his lie. Under no circumstances, however, can the lawyer rationally deprive a defendant of this proof if the client insists, no matter how much a lying sack of shit the client is.

      2. pavlaugh

        Admittedly, I’m sure you know more about contact DNA than me. But my understanding is that you sometimes get DNA from contact, and sometimes not. The accused could have at some point handled the gloves and thought it possible his DNA would be discovered. It seems at least plausible that since the accused knew Flint, the accused may have had reason to believe his DNA would be there. If he told his lawyer this, it could be strategic to not have the gloves tested. (Of course, there’s also the possibility that the accused told his lawyer that he was in fact guilty, despite protestations to the jury, court, media, etc.).

        I think it’s unfortunate the lawyer is being accused tacitly of ineffective assistance when no one has apparently asked the lawyer, “Why didn’t you get the glove tested,” to determine if there was any strategic reason behind the decision. If ineffective assistance is an issue in the current habeas proceeding, I suppose it’ll come out.

        1. SHG Post author

          As to asking the lawyer, I agree, but given all that’s happened, find it impossible to believe that no one asked. I thus surmise that he was either uncooperative or dead.

          As to your scenario, it doesn’t make sense to me. If he had contact with the gloves, it would make perfect sense that he would tell his lawyer not go near them, but then, when they were tested, they were totally clean of his DNA. It’s that last piece that makes it implausible. Without that, there are plenty of scenarios where the decision not to seek testing makes complete tactical sense.

  4. phroggie

    I wonder what William Blackstone would think about this travesty, or perhaps someone like Benjamin Franklin, on record with an even “better” ratio…

    Anyways, here’s hoping that Bharadia’s conviction gets reversed in quick order, and that perhaps Strickland v. Washington gets refined into something a little more palatable for the indigent. I’m not going to hold my breath on the latter, though.

  5. GG

    “The response to overworked, underpaid indigent defenders isn’t to make excuse their failure, but to fight the wrongfulness of a conviction caused by their failure.”

    Looks like you had 2 phrases collide as you were typing. Perhaps you meant, “to make excuses for” or “to excuse their failure”.

    Just wanted a somewhat valid reason post “Great blog!”

    I’ll see myself out. Cheers.

  6. John

    “No. Law is a profession, not a job. Law is a duty, not an excuse.”

    To be honest I never really felt this was a level of commitment really expressed out there in the wild. However, my exposure is primarily around the 2-in-the-morning advertising types.

    What’s your sense that this is the prevailing sentiment at large in the lawyering (law-urrring-ing) community from both sides of the bar?

    1. SHG Post author

      This isn’t a matter of your feelz. If you don’t know any lawyers who appreciate their responsibility, then you need to meet much better lawyers.

Comments are closed.