The Emerging Role of Innocence Lawyer and the Need for Role-Differentiated Standards of Professional Conduct

Abstract

There is growing awareness that a new lawyer role is emerging in American criminal litigation, separating itself from the traditional criminal defense role in ways that raise new issues of professional responsibility and ethics, both for the new role and for the traditional role of the criminal defense attorney. For want of a better term we may style this new role “innocence lawyer.” This new role is, at least for now, largely limited to attempting to aid innocent persons already convicted of a crime. It differs from the normal role of a lawyer representing a criminal defendant, or even representing an ordinary convicted person post-trial. Traditionally, lawyers at the post-conviction stage, whether on appeal or in collateral proceedings, carried forward the standard assumptions of the criminal defense role that emerged in the late 18th century and were largely solidified by the middle of the 19th century. We may label two of the main elements of those assumptions the “cab rank” principle and the “I don’t care if you are innocent” principle. The “cab rank” principle says that in general a criminal defense attorney is obliged, or at least encouraged and allowed, to accept as a client whoever comes to them (at least if they are not already overcommitted and the person can pay for their services). The “I don’t care if you are innocent” principle says that everyone, guilty or innocent, is entitled to put the government to its proof, and that while there are some constraints on the affirmative actions that may be taken to obtain an acquittal, the criminal defense lawyer is there to aggressively test and contest the evidence proffered by the government, and to insure that all constitutional limitations on the prosecution are respected regardless of their impact on the accuracy of the verdict of guilt, and regardless of underlying guilt or innocence. While each of the two principles may serve slightly different purposes, they are not unconnected. Together they work to create a strong “anti-signaling” ethic, in which the criminal defense attorney is prevented from signaling to anyone by any means that a client is guilty, and by necessary implication, affirmatively discouraged, and perhaps even prevented, from effectively signaling that there is real reason to believe that the client is in fact factually innocent of the crime, as opposed to being formally “presumed innocent.” The role of the innocence lawyer is significantly different. Working almost exclusively post-trial, the innocence lawyer is committed to finding those who are factually innocent of the crime for which they have been convicted, and to obtaining their freedom. This entails an ethical obligation to critically investigate and examine all available information, and in general to go forward only with those cases where factual innocence is clear or highly likely. This inherently involves signaling of a well-warranted belief in actual innocence, or at least the gross unsafety of the verdict in regard to actual guilt. Indeed, if the innocence lawyer is doing the right job of screening, the client is entitled to the benefit of such a signal, which is the product of the examination of many cases and the rejection of most, and countless hours of reinvestigation.