Does "Actual Innocence" Mean Anything?

My column on FindLaw today discusses the case of District Attorney's Office v. Osborne, on which the United States Supreme Court recently granted certiorari. The Court is set to decide whether a man who has already been convicted of a crime (in Alaska) has the right to access physical evidence from the crime scene to perform a DNA test, at his own expense, which was not technologically available at the time of trial. In the particular case, the man was convicted of a brutal rape and kidnapping, crimes to which he later confessed at a parole hearing, indicating that he had also confessed the truth to his mother. My column addresses the question of why a prosecutor would want to prevent access to physical evidence for DNA testing, when the testing will cost the government nothing and could resolve any residual doubt. I pose a number of possibilities and conclude that it is the psychological phenomenon of "denial" that accounts for a prosecutor's resistance to DNA testing in such a case.

In this post, my goal is to focus on the distinct question of "actual innocence." In Herrera v. Collins, the U.S. Supreme Court faced the question whether executing an innocent person violates the Constitution. The Court did not ultimately reach this question but determined instead that the particular petitioner did not present a strong enough case of innocence to trigger such a right (against execution for innocent people), even if it does exist in some cases.

The right to access physical evidence for newly available DNA testing is, as I say in my column, a preliminary step toward making an "actual innocence" claim for release. In other words, if a trial was fair and an attorney's representation was competent, then the only reason to permit DNA testing is to provide support for a claim that despite the fairness of prior proceedings, an innocent person was convicted of a crime. For such a showing to matter, in turn, requires that "innocence" actually be a basis for concluding that an individual's confinement is unconstitutional.

For Justice Scalia, the notion that it is unconstitutional to execute (or, presumably, to incarcerate) an innocent person is incoherent. The Constitution provides specific procedures to minimize -- to the extent possible -- conviction of innocent people. It does not, however, prohibit the conviction of innocent people. Indeed, how could it? The only way to know whether someone is guilty or innocent is through procedures designed to expose the truth. Once those procedures are made available, according to Justice Scalia, the government has done what it must do.

To some extent, Justice Scalia is right. In any human endeavor, including the trial, conviction and punishment of criminal offenders, error is inevitable. Any system that distinguishes between guilty and innocent will, on occasion, select one of the latter as one of the former. If a system that punishes innocent people sometimes is unconstitutional, then any criminal justice system we might have would be unconstitutional.

Yet Justice Scalia is wrong in another respect. It may well be the case that we cannot entirely rule out the possibility of convicting innocent people, but when the fact of an actually innocent person becomes obvious, it can certainly be said to violate the Constitution to ignore that fact and continue the punishment as though nothing has happened. It should not be necessary to point out to Justice Scalia that the primary purpose of the proceedings to which defendants have a constitutional right is to determine guilt or innocence and that therefore, the conviction of an innocent is a gross injustice, even if no involved actor was at fault. If such an injustice is unknown, then there is little to be done. But if we learn of it, then it should be considered no less a violation of Due Process to keep the innocent person incarcerated than it would be to do so after a jury handed down an acquittal. To deny this is to suggest that there is no truth of the matter -- people who are acquitted after a fair trial are "not guilty" and people are convicted after a fair trial are "guilty."

Yet no one other than the most radical post-modernist truly believes this to be the case. If Osborne in fact was not the man who raped the victim -- if her identification was in error, if the other rapist lied in implicating him, if his confessions were expedient but false -- then he is innocent of the crimes. If he in fact was the man, then he is guilty. The trial is a process by which we attempt (imperfectly) to find out these facts; it does not itself create the truth.

For most people, a fair trial is the most for which they can hope. They cannot simply assert their innocence as a basis for a constitutional objection after a trial, because the jury has already heard that claim, along with the evidence, and rejected it. But if the convict can prove innocence, the courts should be required -- at a minimum -- to stop punishing him. That Justice Scalia would approve of executing such a person is shocking.

I argued many years ago (in an article in the B.U. Law Review) that Justice Scalia was indulging a kind of "denial" when he rejected paternity rights for men whose biological children were conceived in adultery, in Michael H. v. Gerald D.. I suggested that to call the mother's husband the father, despite the child's true origins, was to use a word -- "father" -- to impose rather than to describe reality and thus magically to make paternal uncertainty (a facet of human reproduction) disappear. If Justice Scalia continues to ignore the significance of actual innocence to the law (as I suspect he will in Osborne), he and any other Justices who go along with him will be indulging a similar kind of denial -- imposing a version of reality in which anyone who is convicted after a fair trial is guilty, by definition. Unfortunately, however, saying it does not make it so.

Posted by Sherry Colb