This is the smoking gun that proves what we have been saying all along.  The so-called innocence list is nothing of the sort.

For years, the “innocence list” has been cited by opponents of the death penalty as a list of people once sentenced to death who were actually innocent of the crimes. The DPIC itself carefully avoids claiming that expressly but promotes the claim through its misleading title.

Scheidegger’s co-blogger, Bill Otis, is unwilling to let this Hannity moment pass without him, and adds his own gleeful thoughts to the mix in his Dictionary for the Politically Incorrect.

Inspired by, but not a report of, the Hennis case and the commentary thereupon, and in appreciation of so many other indignant DPIC stories of “the innocent.”

Innocent (archaic)  —  Didn’t do it.

Innocent (modern)  —  Not as “innocent as a newborn babe” but kind of innocent, not in the woden, old fashioned sense, but in the sense that the “alleged” killer was, you know, abused 30 years ago by his long-dead step-father, leading to his inability to form criminal intent notwithstanding that he stabbed the victims 20 or 40 times or something; and which step-father his lawyer would have found out about but for his sleeping through pre-trial preparation, not to mention the trial, leading to reversal for ineffective assistance.  So, you see, he was, to the more sophisticated among us, innocent.  See also “exonerated.”

Defining terms is always important in discussions like this, and I, for one, appreciate that Otis has provided his definition to prevent lack of clarity.  Otis’ definition of innocent requires the defendant to prove it.  We are all guilty otherwise, just as Gideon suspected.  We neither start out innocent nor end up innocent, unless we can conclusively prove that we didn’t do it.  Unsaid is who we are to prove it to, though this isn’t as clear as one would think, since Hennis, having been acquitted by the civilian criminal justice system, is given short shrift, actually no shrift, because he was convicted in a military Mulligan trial.

Upon this backdrop, former Judge Cassell writes:

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit.   If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

The initial obvious fault of this statement is Cassell’s expectation that the DPIC is wrong for failing to meet Cassell’s expectation.  For those who don’t get this, allow me to explain.  When Cassell writes, “I’ve always understood,” he speaks to his personal comprehension, his understanding. 

If the DPIC exists to meet Cassell’s (or Scheidegger’s or Otis’) understanding, this would be relevant.  Since it does not, framing the question this way discloses more about the questioner than the questioned.  Given the frequency with which this flawed outlook is used to make problems lately, this seemed an opportune time to point this out.  Even former federal judges don’t seem to realize that they aren’t the center of the universe. 

Of course, some wags might suggest that all federal judges see themselves as the center of the universe, perhaps as an occupational hazard, but then sitting judges are, in the sense that whatever they are asked to decide is their decision, and hence their perspective is the only one that matters.

The gravamen of Cassell’s challenge goes to the definition of innocent.  Obviously, the presumption is dead.  It’s some archaic fallacy used in the preamble to explaining why the defendant is guilty.  Whether it’s the Nancy Grace version of conclusive guilt (where there’s smoke, there’s fire) or the more descriptive version, laying out the evidence of guilt that failed to persuade a jury, the failure to obtain a conviction is not symptomatic of innocence, but of “acquittal” or, via Bill Otis, “exoneration”.  It’s that state of being unconvicted, yet presumptively guilty.

Unless and until the taint of accusation is removed by the affirmative proof of innocence, as Paul Cassell understands it, then no one can call himself innocent.  The DPIC is a fraud because its innocence list contains the names of people who are less than conclusively proven to be the “wrong man.”  The notion that they are innocent because they were not proven guilty is, as Otis ridicules in his anti-sophisticate (which of course is code for liberal) rant, is the “modern” version of “innocent”.

Curiously, there is no apparent cognitive dissonance between the guilty-until-proven-innocent crowd, who wrap themselves in the language of patriotism and fundamental rights, and the fact that the hoary innocent-until-proven-guilty platitude isn’t some “modern” invention, but one that goes back to the foundation of our nation.  That’s what makes it a bedrock principle, one that every judge says to every jury, and has since the beginning.  For a crowd that likes to believe that it espouses the beliefs of real Americans, it does an awfully bad job of applying real American principles to real Americans.

The division between innocence and “actual innocence” has grown out of the dispute over the viability of the death penalty, where opponents have used proof of “actual innocence” as a means of showing that the finality of the sanction cannot be justified in a system that sometimes imposes it on people who did not, in fact, commit the crime.  The advent of DNA opened the door to actual innocence in ways that could never be accomplished before.  Science has thrown cold water on particular types of evidence, eyewitness identification, false confessions, and a variety of accepted hard proofs, that had earlier been considered conclusive. 

Despite this, the vast majority of cases offer no opportunity for a defendant to prove his innocence.  The negative cannot be proven, and aside from a defendant’s denial, which can be explained away by any competent three year old, there’s no evidence of innocence to be had.

Cassell wants to know how these people can be called “innocent”.  Because this is the United States of America, and in the United States of America, everyone who is not convicted is innocent.  Actually, truly, really, 110% innocent.