Deconstructing Innocence : Reflections from a Public Defender : Can student attorneys accept the paradigm of guilt and continue zealous representation ?

I am a true believer. I was a public defender for nine years and represented thousands of guilty defendants without guilt or emotional angst. The public defender credo is to give zealous representation without consideration for the innocence or guilt of the client. As a clinical instructor I must impart ethical and diligent representation to my students.3 I found, however, when discussing cases during our weekly case rounds the paradigm of innocence would inevitably become a question for the student attorney. The students imputed guilt and innocence to be mutually exclusive.  Imparting the ethical component of criminal defense – to be competent in having legal knowledge, skill and thoroughness of preparation – to the students was a job I was thoroughly prepared to teach. I found, however, that beyond ethical considerations of representing clients, I needed to deconstruct innocence. I wanted to present to students a paradigm that guilt or innocence is secondary to servicing the needs of the client and protecting the client’s rights through the maze of a convoluted and dispassionate court system. Creating a dialogue that evolved from loaded terms such as guilt, truth or innocence and creating representation where the focal point became servicing the needs of the client became my goal.  This article examines the impact and the importance of the innocence movement and the unintended effects on criminal defense representation. Part I examines the impact of innocence in my juvenile clinic. Part II proceeds to examine the paradigm of the innocence movement and its impact on the criminal justice system. Part III examines the rise of Innocence Projects and the effect on clinical legal education. Part IV deconstructs the importance of innocence and the substantive and procedural problems with innocence. Part V concludes the article with an assertion of the importance of zealous representation regardless of innocence or guilt.


Introduction
I am a true believer. 1I was a public defender for nine years and represented thousands of guilty defendants without guilt or emotional angst.The public defender credo is to give zealous representation without consideration for the innocence or guilt of the client. 2As a clinical

Deconstructing Innocence: Reflections from a Public Defender: Can student attorneys accept the paradigm of guilt and continue zealous representation?
1 See Minna Kotkin, Creating True Believers: Putting Macro Theory Into Practice, 5 J. Clinical L Rev. 95  (1998).Kotkin argues that Clinical teachers should employ macro theory in their teaching methodology to introduce the idea of "critical lawyering as an over-arching paradigm that will imbue students with skills and a solid theoretical foundation."See also Damon Centola, Robb Willer and Michael Macy, The Emperor's Dilemma: A Computational Model of Self-Enforcing Norms, 110 Am.J. Soc. 4 (2005).The authors describe the true believer as one who believes in the enforcement of a social norm, (in my case, the quality of representation has not defined the guilt or innocence of the client) and the enforcement of the norm is done for the right reason.They note it is better not to comply with the norm than create the illusion of sincerity.As the authors note, "true believers reserve special contempt for imposters."Id. 2 See Charles J. Ogletree, Jr., Beyond Justifications:  Seeking Motivations to Sustain Public Defenders, 106 Harv.L. Rev. 1239 (1993); Abbe Smith & William Montross, The Calling of Criminal Defense, 50 Mercer L. Rev. 443 (1999).
instructor I must impart ethical and diligent representation to my students. 3I found, however, when discussing cases during our weekly case rounds the paradigm of innocence would inevitably become a question for the student attorney.The students imputed guilt and innocence to be mutually exclusive.
Imparting the ethical component of criminal defense -to be competent in having legal knowledge, skill and thoroughness of preparation -to the students was a job I was thoroughly prepared to teach.I found, however, that beyond ethical considerations of representing clients, I needed to deconstruct innocence. 4I wanted to present to students a paradigm that guilt or innocence is secondary to servicing the needs of the client and protecting the client's rights through the maze of a convoluted and dispassionate court system. 5Creating a dialogue that evolved from loaded terms such as guilt, truth or innocence and creating representation where the focal point became servicing the needs of the client became my goal.
This article examines the impact and the importance of the innocence movement and the unintended effects on criminal defense representation.Part I examines the impact of innocence in my juvenile clinic.Part II proceeds to examine the paradigm of the innocence movement and its  (2004).
impact on the criminal justice system.Part III examines the rise of Innocence Projects and the effect on clinical legal education.Part IV deconstructs the importance of innocence and the substantive and procedural problems with innocence.Part V concludes the article with an assertion of the importance of zealous representation regardless of innocence or guilt.

I. A Question of Innocence
In my juvenile justice clinic, we began to represent two juvenile females who were both charged with prostitution. 6Both girls, Jill and Dana, denied the charges at the initial hearing. 7I paired a student attorney and a student social worker to represent both girls.I immediately noticed an affinity the student attorney and the social worker had for Jill.Jill vehemently denied the charges.
Jill spoke softly with a slight southern drawl and was the model of courtesy.Dana was more of an enigma.She was not forthcoming.Dana was not so emphatic in her denials but she refused to enter an admission to a prostitution charge.During case rounds we discussed the similarities and differences of Jill's and Dana's cases.
Assumptions were immediately being made about Jill.The students created a narrative of a runaway whose mother abandoned her and who was being exploited by a dangerous boyfriend and possible pimp. 8The police detained Jill for being a minor in a casino in the company of a man they presumed was her pimp.Dana did not have a narrative.The students reviewed the police reports.Undercover vice detectives brought Dana and her teenaged companion to a hotel room and arrested both of them after drinks and conversation.Dana's exploitation was ambiguous as was her innocence.
The moral ambiguity in Dana's case was compounded by her refusal to accept plea bargains.The magistrate would only accept an admission to the charge or a trial. 9We were going to have to try a case with a less than innocent client.The district attorney could not prove Jill was a prostitute and the court dismissed the petition.Was Jill any more innocent than Dana was guilty?The students became frustrated with representation because they did not know if Dana was a child lured and entrapped by vice detectives or if she was a provocative child-woman who went to a hotel room with strange men prepared to have sex in exchange for money. 10 Reflecting on case rounds involving Jill and Dana's cases, I garnered that they wanted to know if either was innocent.We would discuss the weight of the evidence which was greater against Dana than Jill.In general, the students attempted to decipher culpability from police reports and their own investigations.After meetings with the clients, the defense team drew their conclusions.In both cases, the reports varied from Jill and Dana's version of events.The defense team embraced Jill's innocence while Dana's innocence was, at best, inconclusive.Dana received quality representation but the defense team was not enthralled.
When we discussed cases, a greater zeal was given to Jill's defense.Jill's case took on a greater urgency than Dana's.We had to win Jill's case.She was innocent.Dana's case meant a trial with seasoned and sullied Vice Squad detectives testifying about our worldly client's sexual conversation.Dana was more than likely guilty.Why did she insist on having a trial?
As a former public defender, I understood how one felt compelled by the urgency of representing innocent clients. 11No defense attorney wants to see an innocent person convicted of a crime.Nevertheless, as a public defender, I vowed zealous representation no matter the status of the client.Diligence is expected in representing any client. 12Zealous representation is a matter of personal choice. 13My philosophy in the juvenile clinic was that innocence did not matter but quality representation did.
I did not want the student attorneys or social workers becoming emotionally or morally invested in innocent clients.They would extend more time and energy to the Jills of the world when the Danas are in true need of zealous representation.I inquired of the team why was innocence more compelling?I redirected the team to the idea that the more compelling case may be a teenaged prostitute who is guilty and who may have contemplated sex with strange men in hotels.Such cases are representative of girls who come from abusive, dysfunctional backgrounds and needed extra care.Innocence could not become more important than the need for client-centered representation.I was in a quandary as to why innocence dominated case round discussions and the defense team focus.Why had innocence become the lynchpin of receiving zealous defense?The rise of the importance of innocence in criminal defense has a tragic history.The Innocence Project represented a different model than traditional clinics.The focus was on the claim of innocence and innocence that could be proven through DNA testing. 18The Innocence Project client generally had exhausted criminal appeals. 19The Innocence Network has assisted in freeing at least 218 wrongfully convicted persons since its inception, 16 from death row. 20

Journal of Clinical Legal Education December 2008
(15 cont.)exemplar of a wrongful conviction, remarkable only for the success with which the miscarriage of justice was ultimately addressed.As in so many other cases, Porter's innocence was demonstrated by dedicated individuals outside of the criminal justice and court systems.See Jim Allen, Ex-Prisoner Praises Students Who Helped Free Him, Chi.Daily Herald, Feb. 6, 1999, at 9 (quoting Northwestern University journalism professor David Protess saying, "'[T]he system was forced from the outside to recognize its injustice.'").Porter was convicted of a 1982 double murder.See Pam Belluck, Convict Freed After 16 Years on Death Row, N.Y.Times, Feb. 6, 1999, at A7. His case went through the state and federal courts' direct appeal and post-conviction review processes from the time of his conviction until March 1998.In September 1998, "two days before Mr. Porter was to be executed, his lawyers won a stay while a court considered a motion that Mr. Porter, who has an I.Q. of 51, was not competent enough to be put to death."Belluck, supra, A7.The extent of Porter's mental incapacity was only discovered at that late date because Porter's trial counsel had neither the experience nor the funding to investigate his case properly.Ken Armstrong, Bar Urges Changes in Capital Cases: Reforms Proposed To Give Defendants Better Trial Resources, Chi.Trib., Feb. 27, 1999, at 1 (describing Porter's trial attorney's financial inability "to do much, if any, pretrial investigation").Therefore, "he [did not] establish[] that his client was mentally retarded -and thus without the requisite level of responsibility to merit the death penalty."Reforming Illinois ' Death Penalty,  Chi.Trib., Mar.17, 1999, at  representing clients in wrongful conviction cases: "Innocence projects offer particularly good opportunities for learning about the importance of facts; about the importance of being skeptical, vigilant, and thorough; about ethics, values, and judgment; and about the criminal justice system itself -from obtaining a critical perspective on legal doctrine to a critical understanding of 'the law in action,' that is, how the criminal justice system actually works, and how it might be made to work more effectively and fairly." 23e valuable work of Innocence Projects can be measured by the many reforms instituted in the criminal justice system after highlighting the plight of the wrongfully convicted. 24The media has also become a key player in the portrayal of the wrongfully convicted person.The American public can watch in real time as a prison releases a wrongfully convicted man or woman after decades of imprisonment. 25The portrayals of release are emotional and they strike a chord with the American public.The cases, the narratives and the images of the innocent leave an effect on our collective psyche.An unintended consequence however may be the focus on the importance of innocence.
has a tradition of focusing its scholarship and teaching on "law in action," the concept that "in order to truly understand the law, you need not only to know the 'law on the books,' but also to look beyond the statutes and cases and study how the law plays out in practice."Dean Davis has written, "'Law in Action' reminds us that no matter how interesting or elegant the theory or idea, we always need to ask, 'Why should this matter to people in the real world?'"Kenneth B.

IV. Deconstructing Innocence
Fundamental Question Has the emphasis on innocence of late created a category of clients that have been deemed more worthy of zealous representation?No one deserves greater representation than does the wrongfully convicted who did not receive it and paid the costs with their freedom.The Illinois Commission on the death penalty cited inadequate representation as one of the major problems of how the innocent become convicted of crimes they did not commit. 26The potential problem becomes the emphasis on the person who was wrongfully convicted and not on the system that allowed an innocent person to be convicted.
The narratives of the wrongfully convicted persons are riveting. 27Spending decades in prison and potentially having exhausted all appellate remedies, the Innocence Project has been the only hope for many.The Innocence Project has also been the catalyst for criminal justice reform. 28Critics however, note that the focus on innocence in the media and government creates an unintended consequence of innocence being the exclusive reason for reform or zealous representation. 29nnocence can be a dual-edged sword.The focus on innocence brought needed attention to a troubled system but it has also been used as a gate keeping function in federal courts.The focus on innocence created procedural and substantive problems.The courts and Congress used innocence as a procedural bar and severely limited access to grant habeas review in the name of innocence.Innocence has a profoundly negative impact on non-innocence substantive issues such as justification defenses and constitutional violations.Congress and the federal courts used innocence to limit access of defendants to the courts.A study completed by the U.S. Department of Justice reiterates Steiker and Steiker's findings.The implementation of the AEDPA reduced the number of evidentiary hearings granted based on habeas petitions by half. 40Using innocence as the impetus for change had a chilling effect in capital habeas cases. 41

Substantive Problems with Innocence
The emphasis on factual innocence undermines traditional approaches to criminal defense.The focus on wrongful convictions creates what Margaret Raymond quantifies as a "supercategory of innocence". 42Factual innocence is elevated over other categories of innocence. 43At trial, the jury must determine whether there is sufficient evidence to determine guilt. 44The defendant does not bear the burden of proving factual innocence or the legally presumed innocence guaranteed by the constitution. 45The cultural and legal focus on factual innocence may lead juries to conclude that evidence short of factual innocence does not justify an acquittal. 46e constitutional rights of defendants will become secondary to innocence determinations.The focus on innocence subverts the concern criminal defense litigators have about protecting defendants' constitutional rights and launching challenges to illegal search and seizures. 47onstitutional claims of guilty defendants lack the visceral appeal of innocence claims. 48

V. Conclusion
The innocence movement has proven invaluable in bringing attention to a myriad of problems in the criminal justice system.The revelation and poignant freeing of wrongfully convicted persons has influenced legislative and court reforms.Criminal defense attorneys and prosecutors are being held to more stringent standards.The innocence movement has revolutionized clinical legal education as well.Student attorneys engage in life altering cases and in instances such as Anthony

Deconstructing Innocence: Reflections from a Public Defender: Can student attorneys accept the paradigm of guilt and continue zealous representation?
Porter's case actually save peoples' lives.As the students learn to engage in a flawed system they also need to grasp that some clients are guilty.Quality representation should never be reduced to essentialist standards of guilt or innocence.Zealous representation should never be married to the importance of innocence.The flaws in the criminal justice system that convict the innocent also taint the guilty.Jill and Dana represent a cautionary tale of the attractiveness of innocence.I diligently guard against being seduced by innocence.Innocence should never replace the foundations of zealous representation.Jill and Dana deserved engaged and zealous student attorneys no matter their status.

Deconstructing Innocence: Reflections from a Public Defender: Can student attorneys accept the paradigm of guilt and continue zealous representation? 37
Circumstances in the State of Illinois came to underpin the importance of the innocence movement.Illinois exonerated more death row inmates than they executed since the death penalty was reinstituted in 1977.14AnthonyPorter was two days from being executed by the state of Illinois for a double murder but was eventually exonerated by the Gov. George Ryan.15Gov.Ryan a moratorium on administration of the death penalty in Illinois and removed all inmates from death row.16Gov.Ryan's decision gave impetus not only to death penalty opponents but to the innocence movement.Barry Scheck and Peter Neufeld began the first Innocence Project at Cordozo Law School at Yeshiva University in 1992. 17 13 I define zealous representation as the ability to give quality representation to any client no matter what the charge or whether the client maintains his or her innocence or is guilty of the crime(s) charged.See also Sylvia Steven, Whither Zeal?Defending Zealous Representation, 65 Or.St. B. Bull.27 (2005).Stevens laments the lack of the requirements of zealous representation by the ABA Model Rules of Professional Conduct and the Oregon State Bar rules.Id.Stevens defines zealous representation as "doing your best and being dogged in pursuit of the client's aims within the bounds of the law and the ethical rules.It is compatible with civility and courtesy and, in my humble opinion, the highest manifestation of professionalism."Id. at 28. 14 In 1972, the U.S. Supreme Court held in Furman v. there's something wrong with the death penalty process is a crucial and welcome step toward needed reform.");Death 'System' Does Not Work, Cap.Times (Madison, Wis.), Feb. 8, 1999, at 2C (reporting the call by the Chicago Tribune and the Chicago Sun-Times and legislators from both parties for a moratorium on executions in Illinois); Ray Long, Revamp Likely in Process for Death Penalty, Chi.

Innocence in Clinical Legal Education In
many jurisdictions Clinical education has become invaluable in training law students for the essentials of law practice.21IntheUnitedStates Clinical education is now an essential component of legal education.The Innocence projects have expounded on the clinical education model.Students have life changing experiences representing men and women exonerated after spending decades in prison and in some cases on death row.The Innocence Project has wielded great influence on clinical education.22Inparticular, Keith Findley details the skills students develop in III.

Deconstructing Innocence: Reflections from a Public Defender: Can student attorneys accept the paradigm of guilt and continue zealous representation? Journal of Clinical Legal Education December 2008
The Procedural Problem and The Original Innocence MovementCarol Steiker and Jordan Steiker extrapolate that the first innocence movement began after the Warren court introduced expansive treatment of collateral federal review of state court convictions as a vehicle for the consideration of all federal constitutional claims in a federal other claims including those of a constitutional nature.Steiker and Steiker postulate that judicial and legislative re-calibration of federal habeas corpus relief was part of a larger movement to accurate determination of guilt or innocence which became the only value in constitutional criminal procedure.39 all