On Innocence, Factual and Moral

One of the first lessons taught in the year-long Boston College Innocence Clinic concerns the concept of “factual innocence.” It is closely related to the concept of “actual innocence,” though different jurisdictions may refer to one or the other, and the substance and application of those terms can vary. Regardless of which term is deployed, it’s a bit of a head-scratcher when clinic students learn that the legal concept of “actual innocence” entails its own discrete body of thought and doctrine within criminal law. Doesn’t the determination of actual innocence suffuse the entire criminal-legal process?

It turns out it does not, and factual innocence is largely a claim raised in the post-conviction setting to overturn a wrongful conviction. That claim often finds little legal purchase. In Herrera v. Collins, for instance, the Supreme Court held that a claim of actual innocence does not entitle a person to federal habeas corpus relief under the 8th Amendment’s proscription of cruel and unusual punishment. Constitutionally and procedurally intact convictions can remain undisturbed by the truth. In Herrera’s case, a capital case, the Court ruled it was not cruel and unusual to execute an innocent man. That kind of antiseptic, procedural logic is one striking example of how the banality of evil manifests itself within the criminal legal system.

In fact, in criminal law, truth often collides with procedure. That was one clear lesson of this last semester, during which I continued the Innocence Clinic while also taking Evidence and Trial Practice. Each of these fields orbit notions of truth and procedure in different ways and with varying degrees of concern for the fundamental interrelationship of truth and justice. Innocence has its own, distinct approach to truth, most clearly represented in that idea of factual innocence. Factual innocence starts with the radical notion that there is veridical reality that supersedes legal procedure, evidentiary methodology, and the principle of judicial finality. The Innocence movement’s clash with the criminal-legal status quo proceeds from that notion.

Evidence also focuses on the method of discerning and representing truth, but it often seems structurally incapable of truly penetrating inquiries into reality. And it seems perversely comfortable with that. Fortunately, my Evidence professor did not fail to acknowledge this. He often referred to the “folkloric” quality of the rules of evidence. This folklore is grounded in evidence’s common law origins. Saying the quiet part out loud helps to mitigate the crushing cognitive dissonance of hearsay exceptions, for example.

I was mulling this over while my four-year-old fired facts about the solar system at me. She’s been on a planetary kick lately. So, my mind eventually ran to the image of Truth as the Sun. Innocence’s tight orbit around truth would make it Mercury. Evidence might be another couple of planets back at Earth. Trial Practice, though, would be out there in the dark, far reaches of the system. Like Neptune, it maintains a distant orbit around the center.

It is tethered to the idea of justice almost entirely on the assumption that the adversarial process generates optimal outcomes. I have not found any trial practice curricula or study materials interested in problematizing trial advocacy or locating it in a broader ethical relationship to things like truth or innocence. What matters are courtroom mechanics and principles of persuasion. Presumably, this approach to trial advocacy is grounded in the idea that substantive law, rules of evidence, and standards of professional conduct provide guardrails that promote justice and truth-seeking. Advocacy under these constraints is necessarily ethically grounded. But examples abound of the systemic injustice law generates. Rules of evidence are farcical at times. And one of my professional responsibility professor’s constant refrains was that the most unethical lawyers demonstrate a mastery of rules of professional responsibility. Uncritically received rules of evidence, professional conduct, and trial advocacy are inadequate.

But so is a simplistic planetary metaphor, I realized. Bodies of law, professional affiliations, and institutions are not fixed in distance from some moral center of gravity. Their trajectories evolve, improve, and decay. They pass in and out of light and dark. Most exist in some kind of half-light. So, grounding oneself on one of these figurative planets of substantive law or legal practice is no guarantee of moral innocence. The Innocence movement, for instance, has many critics in the defense bar who argue its laser-like focus on factual innocence implicitly denigrates the due process rights and procedural safeguards to which even clearly guilty defendants are entitled. There’s no safe harbor from self-critique when you practice law.

So, while my daughter continued to rattle off the order of the planets and list their respective qualities, my mind wandered to a brief poem that re-frames the idea of orbits. It opens: “I live my life in widening circles.” And it closes, “I’ve been circling for thousands of years/ and I still don’t know: am I a falcon,/ a storm, or a great song.” I think there are ideals of legal practice that track these images. You can aspire to a practice that is clean, solitary, targeted, but finite. Alternatively, you could aspire to maximum force and impact, but risk collateral and uncontrolled effects. Or, you could aspire to reverberate with a great harmony and beauty.

That last ideal is certainly attractive. The metaphor of moral innocence as a kind of lived music is a common one. Another poet, George Eliot, described her dream to “join the choir invisible / Of those immortal dead who live again / In minds made better by their presence.” But that kind of moral purity and immortality may be a bit ambitious for lawyers and law students, wrapped up as we are in compromised and compromising systems. The necessary discipline is continuously asking the question, “What am I?” In all likelihood, a legal career will embody all three paradigms: at times a falcon, other times a storm, and occasionally, maybe, a great song.

Those rare moments might be enough. In law, innocence is a precarious thing, but worth pursuing. “So to live,” wrote Eliot, “is heaven: To make undying music in the world.”


Ian Ramsey-North is a third-year student at BC Law. Contact him at ian.ramsey-north@bc.edu.

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