Rarely does one come away from a symposium with anything of use.  In the best of cases, you learn a theoretical construct that judges would laugh at if only you had the chance to make your case.  It seems that no one at symposia realize that you’ve got ten seconds to make your pitch before the judge blows you off, and the pitch being promoted at symposia usually takes north of an hour, the tolerance of a saint and the ability to stifle a laugh.

But how could I ignore this symposium, Exonerating the Innocent: Pre-Trial Innocence Procedures. With a catchy title like that, combined with the possibility of learning something of critical importance, it’s one that you can’t let slip.  Here’s the pitch:

This symposium will examine an entirely novel approach to substantially reducing the system failures that lead to wrongful convictions: the use of pre-trial innocence procedures and bureaus meant to limit the number of convictions of innocent people, especially the indigent, by allowing defendants to establish their innocence prior to or at trial. Leading scholars and practitioners will examine whether or how such procedures could spare innocent defendants from long prison terms in a system where establishing a person’s innocence following conviction is extremely difficult.

Not only am I guilty of having failed to use “pre-trial innocence procedures,” I don’t have a clue what they’re talking about.  Other than the generic use of pre-trial procedures, which I’ve always understood to apply to all defendants, who are by definition innocent since no jury has yet found them guilty, and which I use regularly and with some proficiency, there was clearly a gap in my knowledge of what is available. 

I check the law and came up empty.  I used by Google-fu and found nothing.  How is it possible that there are “pre-trial innocence procedures” about which I knew nothing and could find nothing.  This is huge.  This is a game-changer.  I was ashamed of myself for being wholly unaware of this, since I want to spare innocent defendants from long prison terms too.

Of course, this was something that was known by “leading scholars and practitioners,” but not me.  I was so jealous that I needed to see who knew what I didn’t.  The program consisted of three panels.  The first was entitled, “Theoretical and Empirical Considerations of Pre-Trial Procedures.” and Paul Cassell, my favorite ex-federal judge turned victims rights advocate, was on there.  But no practitioners, which makes a lot of sense since practitioners and anything called “theoretical” tend to result in small explosions.

The next panel is called, “Approaches and Alternatives to Pre-Trial Procedures,” and is moderated by Peter Neufeld of Innocence Project fame.  Now this sounded cool and interesting, since there’s certainly no magic in the statutory pre-trial procedures that gives rise to exoneration.  Except the panel consists entirely of academics, not a single practitioner in the bunch. 

The final panel is “Political and Practice Considerations: Statutes and Demonstration Projects,” which enjoys a bit of alliteration if not any obvious connection.  Moderated by a West Point colonel from the Military Academy’s Center for the Rule of Law, there are finally two practitioners to be found: Steven Banks, who is the Attorney-in-Charge (as in head administrator) of The Legal Aid Society and Mike Ware, Chief of the Special Fields Bureau of the Dallas County District Attorney’s Office, which include the conviction integrity division.

The scent emitted by the participants of this symposium smells like push for defense lawyers to spill their “innocence” case to the prosecution at the earliest possible opportunity and lay down, prostrate, before the awesome yet inherently trustworthy power of the government.  You see, there really isn’t any such thing as “innocence procedures,” aside from begging for the mercy and understanding of those who hold the power over the prosecution.

No doubt that the rare instance of DNA proof of exoneration may, when all the stars align, work out, except when it doesn’t.  The same can be said of secret videotapes.  Is it possible that the magic secret to exoneration is give it up to the prosecution and pray that they don’t use it to figure out some way to circumvent the proof so that they can whup the defendant’s butt at trial?

Maybe it will include a handout about why eyewitness identifications aren’t always accurate, or how false confessions happen, and contend that if we only teach prosecutors, they will embrace their failings.  After all, prosecutors only want to do justice.  Ask any scholar and they’ll tell you.

Neither scholars nor those politically inclined toward believing that only the provably innocent deserve to walk seem to consider this “approach” to be problematic.  In this theoretical construct, they concede what practitioners already know, that the burden is on the defendant to prove his innocence.  The old theory, innocent until proven guilty, has given way to the new theory propounded by scholars who are deeply concerned about “wrongful convictions,” meaning that defendants whose claim of innocence passes their muster not be convicted.  The rest of them?  Screw ’em.

The keynote speaker is New York Court of Appeals Judge Theodore Jones. who also co-chairs New York’s Justice Task Force. 

The task force will determine the causes of wrongful convictions and develop systemic remedies to make the state’s criminal justice system more effective. Importantly, the task force is permanent – and it will develop improvements in court procedures and rules, legislation, and training for attorneys, judges and police.

The task force was announced last May.  I can’t wait to find out how many innocent defendants have been saved thus far.

This symposium is scheduled to last from 8:15 a.m. to 5:30 p.m.  That’s a long time to hand out the telephone numbers for prosecutors and a demonstration of how to beg on bended knee.  At least you get 5 CLE credits for attending, though it appears they don’t serve lunch.

Examining a novel approach to reducing the incidence of wrongful convictions

We’ll see.  I want desperately to be wrong, completely, totally wrong, about what this symposium has to offer.  I want to learn how to save the innocent defendant, about a “novel approach to reducing” wrongful convictions.  I want to be better, more effective, at what I do.  Teach this old dog some new tricks and make me eat my words.