Guilty until proven innocent, in Colorado

The following opinion by David Post was published by the Washington Post on November 21, 2016.

The Supreme Court will hear arguments this term in Nelson v. Colorado, a case raising some interesting and important questions about the scope and meaning of the “presumption of innocence.”

Shannon Nelson was convicted in 2006 of five sexual assault offenses she allegedly committed against her children. In addition to a prison term, Nelson’s sentence included several monetary charges that state law imposes on defendants who are convicted of crimes, including (1) a $125 fee designated for Colorado’s Crime Victim Compensation Fund; (2) a $162.50 “surcharge” designated for Colorado’s Victims and Witnesses Assistance and Law Enforcement Fund; (3) a “docket fee” of $35; (4) a “time payment fee” of $25; and (5) restitution amounting to $7,845, for a total of $8,192.50.

Because she was unable to pay, the Colorado Department of Corrections began deducting money from her inmate account while she was incarcerated to satisfy the debt she owed to the state.

Nelson’s convictions were reversed on appeal, and on retrial she was acquitted of all charges. She then filed a motion with the trial court, seeking a return of the money — $702.10 — that had been transferred from her prison account to the state pursuant to the now-vacated conviction.

The Colorado Supreme Court, over a stinging dissent by Justice William Hood, held that the trial court did not have the authority to order the state to refund Nelson’s money and that in order to obtain that refund, Nelson would have to file a separate civil action under Colorado’s Exoneration Act. That statute, enacted in 2013, authorizes an award of compensation (up to $70,000 per year of incarceration) to those who have been wrongfully incarcerated; additionally, it provides for a refund of fees and costs paid to the state.

But individuals seeking such compensation and/or refund must prove, by “clear and convincing evidence,” that they were “actually innocent” of the crime with which they were charged – not merely that they were “legally innocent” by virtue of never having been (validly) convicted, but innocent in fact.

In other words, Nelson will not be “presumed innocent” in the Exoneration Act proceeding; to get her money back — money that the state acknowledges it would have had no claim on but for the now-vacated criminal conviction — she will have the burden of persuading the court that she was, in fact, innocent of the crimes charged.

It hardly seems fair.  You’ve seen it a thousand times on TV, the guy who’s been released from jail who picks up, on his way out the door, all the stuff he had to turn over to the cops when he was taken into custody — keys, phone, loose change, wristwatch … It’s as though Colorado were to say: “We’re not going to give you your stuff back unless you go to court and prove – by clear and convincing evidence, no less! – that you’re actually innocent of the crime we thought you had committed.”

An amicus brief submitted by the Institute for Justice and the Cato Institute (that I helped write, and for which I’m counsel of record) argues that not only is it not fair, it violates fundamental due-process principles to reverse the presumption of innocence in this way.

There may well be no principle of law more familiar to most people — if only from the uncountably large number of TV shows and movies that have repeated the formulation — than the notion that a criminal defendant is “presumed innocent” of all charges, and that the government has the burden of proving guilt by proof “beyond a reasonable doubt.” And indeed, the Supreme Court has held (see Coffin v U.S., 156 U.S. 432 (1895)  and In re Winship, 397 U.S. 358 (1970) ) that both parts of that formulation — that there is a “presumption of innocence” and that it can only be overcome by proof “beyond a reasonable doubt” — are incorporated into the due process clause of the Fifth Amendment, applicable to state proceedings through the 14th Amendment.

The tricky part about this case is that Colorado hasn’t reversed the presumption in a criminal proceeding; it is not proposing to force criminal defendants to prove their actual innocence to avoid a criminal conviction. That would be blatantly, and incontrovertibly, unconstitutional. Instead, it is placing the burden of persuasion on Nelson (and others in her position) in a civil proceeding — an Exoneration Act action for a refund of fees and costs.

Our brief makes the argument, though, that due process requires that the state apply the presumption of innocence even in the civil action authorized by the Exoneration Act, at least with respect to persons who, like Nelson, are not seeking some special benefit from the state (i.e., compensation for the time they wrongfully served), but who are, rather, just seeking to get back money that is rightfully theirs.

As we point out, the “presumption of innocence” has extraordinarily deep roots in Anglo-American — indeed, in Western — jurisprudence, traceable as far back as the Book of Deuteronomy (“one witness is not enough to convict anyone accused of any crime”) and the law of ancient Rome (in the maxim “de quolibet homine presumitur quod sit bonus homo donec probetur in contrarium,” or “each person may be presumed to be a good man, until the contrary is proved”).

In some ways, it’s a tricky legal construct, starting with the idea that it’s not a true “presumption” at all.  A true presumption is a rule of evidence, requiring the fact-finder to accept that Fact B (the presumed fact) has been established, either conclusively or until contrary evidence is produced, once Fact A (the basic fact) has been proven.  A true presumption has a basis in fact; we mandate that the inference be drawn, because it is more likely to be true than not. A child born of a husband and wife living together is presumed to be the natural child of the husband. A person who has disappeared and not been heard from for seven years is presumed to be dead. A properly addressed letter delivered to the post office or a common carrier was in fact delivered and received by the addressee.

But the presumption of innocence doesn’t work this way.  It doesn’t mandate that the fact-finder draw any factual inferences at all.  It says nothing about whether the defendant is innocent in fact. It would be odd if it were otherwise; as anyone involved in the criminal-justice system will tell you, it is almost certainly the case that most criminal defendants, in fact, committed the acts on the basis of which they have been charged.

The presumption of innocence isn’t founded on any notion the defendants generally are factually free from blame. It’s a broader principle, rooted in policy, not statistical likelihood, that says that all people brought before a tribunal “are taken, prima facie, i.e., in the absence of evidence to the contrary, to be good, honest, and free from blame, presumed to do their duty in every situation in life, so that no one need go forward, whether in pleading or proof, to show as regards himself or another, that the fact is so, but every one shall have it presumed in his favor.”

It actually works as a kind of anti-presumption.  It forbids a fact-finder from inferring that the defendant did commit the acts charged from the fact that she has been arrested, arraigned, and indicted for a crime. It instructs fact-finders, as the Court put it in Taylor v. Kentucky, 436 U.S. 478 (1978), to “put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced [and] nothing but the evidence, i.e., no surmises based on the present situation of the accused.”

In an influential law review article published in 1895, the eminent evidence scholar James Bradley Thayer put it nicely thus:

    “It [the presumption of innocence] says simply this: ‘It is the right of this man to be convicted upon legal evidence applicable specifically to him. Start then with the assumption that he is innocent, and adhere to it till he is proved guilty. He is indeed under grave suspicion, and it is your duty to test and fairly to weigh all the evidence against him as well as for him. But he is not to suffer in your minds from these suspicions or this necessity of holding him confined and trying him; he is to be affected by nothing but such evidence as the law allows you to act upon. For the purposes of this trial you must take him to be an innocent man, unless and until the government establishes his guilt.’ The presumption of innocence reflects a long-standing societal judgment that ‘in the eyes of the law every man is honest and innocent unless it be proved legally to the contrary’.”

Shannon Nelson is legally innocent of any crimes.  Whether she is factually innocent of those crimes has not been determined and is irrelevant; in the eyes of the law, she is, like all of us, assumed to be “honest and innocent,” and Colorado can’t deprive her of her property until and until it proves otherwise (which is has not done).

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David G. Post taught intellectual property and Internet law at Temple and Georgetown Law Schools, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace (Oxford). He is currently is a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

Facing death, Kevin Keith deserves a new trial

The following editorial was published by the Akron Beacon Journal on November 11, 2016.

Kevin Keith sat on death row for 16 years. Then, in 2010, Ted Strickland commuted his sentence to life in prison without the possibility of parole, rightly citing “too many real and unanswered questions” about whether Keith committed a triple murder at an apartment in Bucyrus. That was partial justice for Keith, once a defensive tackle at Canton-McKinley High School. He still needs a way to get back into court for a new trial in which the totality of the evidence would be examined.

Perhaps that opportunity now will come. The Columbus Dispatch recently reported on grave questions raised about the work of G. Michele Yezzo, a longtime forensic scientist at the state Bureau of Criminal Investigation. She retired in 2009 after more than three decades on the job. An examination of her personnel file has revealed years of erratic behavior, threatening and otherwise hostile, even a suspension in 1993.

Most troubling, the record points to concerns that Yezzo slanted her results and conclusions to favor the police and prosecution. The Dispatch noted she often conducted her analyses of murders and other high-profile felonies with little oversight.

Lee Fisher, a state attorney general in the 1990s, told the Dispatch he “would call for an investigation into every case where her findings and conclusions were instrumental in the final result,” citing “an obligation to the integrity of the criminal-justice system. … ”

Jim Petro, the attorney general a decade later and part of the current Kevin Keith defense, described Yezzo’s work to the Dispatch as “shoddy at best.” He added: “Any case where she provided forensic evidence that resulted in a conviction now comes into question.”

Mike DeWine, the current attorney general, told the Dispatch that his office has conducted two such reviews since learning about the problem in 2015. He reports the examinations turned up no issues.

That doesn’t seem to fit the Keith case. A key factor for the prosecution was the Yezzo analysis of a partial impression of a license plate number left in a snow bank by the alleged getaway car. In 2010, the Keith defense hired one of the nation’s leading forensic experts to review the analysis. He found the impression did not match the bumper of Keith’s car. He also concluded there wasn’t sufficient detail about the plate numbers.

Add these findings to the erosion of eyewitness testimony, plus credible information pointing to a likely alternative suspect, and the case against Keith weakens to the point of a wrongful conviction.

As the Dispatch reported, a judge in Huron County already has dismissed the 1993 murder conviction of a man due to the sloppy work of Yezzo.

Kevin Keith came within two weeks of execution. Imagine the horror if he had been put to death by the state and six years later all of this surfaced. That helps explain why Ohio lawmakers must enact the recommendations of the Supreme Court task force on the death penalty, especially those items designed to prevent wrongful convictions and execution. It also points to doing what is just, granting Keith a new trial.