“Sed nec de suspicionibus debere aliquem damnari diuus Traianus Adsidio Seuero rescripsit: satius enim esse impunitum relinqui facinus nocentis quam innocentem damnari.” – a person ought not to be condemned on suspicion; for it was preferable that the crime of a guilty man should go unpunished than an innocent man be condemned. Trajan writing to Adsidius Severus
“Do not deny justice to your poor people in their lawsuits. Have nothing to do with a false charge and do not put an innocent or honest person to death, for I will not acquit the guilty.” – Exodus 23:6-7
From time immemorial, just men have seen the slippery slope necessarily emerging should society develop the habit of convicting the innocent. Conviction of the innocent reduces us all to the level of the guilty, unable to stand above in judgment because the judgment becomes capricious. But this need to avoid convicting innocent men stands in opposition to the Old Testament attitudes of justice and retribution. Our prosecutorial system is designed to be as aggressive as possible and in fact, should a prosecutor allow a guilty man to go free, his stay in office would become terminal. So we have these two competing desires in our judicial system today and as the world has become more black and white, the very people charged with protecting those innocent of crime work far harder to improve their conviction rate so that they may stay in office.
Certainly, we want our prosecutors to aggressively pursue charges against alleged criminals but at what point do we wish they could turn off the desire for conviction and realize that particular cases require a more deft touch? As the science behind our forensic analysis gets more and more advanced, shouldn’t we err on the side of allowing a guilty man go free if the evidence casts a large shadow of doubt on the guilt of a convicted man? Of course, when the crime involves a child, it’s even more difficult step back from the fray for a more balanced look.
Ernie Lopez spent nine years in prison until this past January when his conviction was overturned based on what appears to be abysmal defense representation at trial. At question is whether the child that died in his care in 2000 was the victim of a crime or a statistic in a growing understanding of how young children die from blood clotting diseases. The Texas Court of Criminal Appeals, hardly a bastion of liberal hearted compassion, feels the latter may be true given the evidence dug up by NPR, ProPublica and PBS Frontline. The child Lopez was convicted of assaulting had a blood clotting disorder that caused bruising that might mimic physical and sexual abuse. Lopez’s original defense called no medical witnesses, a lapse of epic proportions in a case where a man was convicted and sentenced to 60 years in prison. Yet, in our judicial system, where prosecutors are lionized and move up the political spectrum and defense attorneys are maligned as protectors of the evil, how often must this happen? Defense attorneys are notoriously underfunded, especially court appointed ones and certainly we have to believe the talent pool for court appointed attorneys must be quite shallow. It must take a saint to voluntarily defend the dregs of society in need of court appointed attorneys. We have become a society that turns its back on the conviction of the innocent in many ways because it is difficult to consider and even more difficult to fix. No one wants to allocate resources to the defense of the indefensible. And so we have episodes like Lopez and dozens of others, innocent men and women convicted of crimes they didn’t commit.
Our desire for retribution is strong, based on evolutionary and cultural traits that abhor the idea of unpunished guilt. Without justice, we have anarchy and no civilization can stand for that. It is important that the guilty are punished to protect our culture. Yet, if we are to consider ourselves something above the animals, surely we must do everything in our power to prevent even one innocent conviction. It should be the moral charge of prosecutors to tread carefully instead of rampaging in to battle attempting to win at all costs. But of course, as in all things these days, politics comes into play in a myriad of ways and in Texas, you won’t be a prosecutor for long if you seem easy on crime. We as a society should demand equal treatment of both the accused and the victim until guilt is decided. Even then, we should always be prepared for the chance we made a mistake as evidence or science comes to light. The rectification of those mistakes should be clear and immediate, casting no doubt on our desire to protect the innocent and learn from our mistakes. Unfortunately, as in the case of Lopez, it’s far easier to see things as black and white, leaving a man to sit in a cell for nine years for a crime he likely didn’t commit only to promise to prosecute him again once he is released.