2010 -- NATIONAL LEVEL
Missouri Law Review
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ABSTRACT & CITATION
In terms of political messaging, defenders have sometimes experienced tension in expressing their goals of protecting both the innocent and the guilty. Thanks to exonerations through DNA evidence, protecting the innocent is increasingly politically popular. Most indigent defendants however, are not demonstrably innocent, and, according to the author of this piece, are likely guilty. This article responds to the concern that innocence may become a wedge issue for progressives who otherwise support increased public defense funding. Here, Mosteller argues that this worry can be eliminated by examining the real world practice of defenders. His essential thesis is that defenders cannot be certain which clients are innocent, and thus must have the resources to vigorously defend all of them. He uses examples from his practice at the Public Defender Service for the District of Columbia to illustrate this point. Apart from the ability to ascertain innocence, Mosteller asserts that it is outside the professional responsibility of the defender, who should instead be focusing on which clients are “clearly not guilty” or “not clearly guilty,” based on the limited evidence available. Based on these premises, he critiques other articles that suggest “triaging” cases where defendants are likely to be innocent and severely limiting post-conviction relief for people who cannot demonstrate innocence. Ultimately, Mosteller urges defenders to not turn away from using innocence as a forceful political tool, even if it appears hazardous or is not central to their self-conception of their role in the criminal justice system.
Mosteller, R. P. (2010). Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice. Missouri Law Review, 75, 3, 931-988.Topics: Ethical and Professional Responsibilities, Funding
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Last revised: June 10, 2015 4:10 pm