LEGAL STUDIES RESEARCH PAPER SERIES
PAPER NO. 10-10-04
October 5, 2010

Innocence Unmodified
by

Emily Hughes
Associate Professor of Law

Electronic copy available at: http://ssrn.com/abstract=1726060

Innocence Unmodified
By Emily Hughes

The Innocence Movement has unwittingly participated in the construction
of a binary between “actual” and “legal” innocence. Because the Innocence
Movement has focused on defendants who did not commit the actions underlying
their convictions, courts, lawyers, and the larger society have come to believe that
a person is wrongly convicted of a crime only if the person is “actually” innocent.
This perception overlooks the fact that a person can be wrongly convicted if their
constitutional rights were violated in the process of obtaining the conviction. As
such, the Innocence Movement devalues “legal” innocence and the constitutional
values that underlie a broader conception of innocence. In order to affirm the
importance of those constitutional values, this Article argues for the need to
reclaim an understanding of innocence unmodified by qualifiers such as “actual”
or “legal.” Part I explains how the concept of “actual” innocence has played a
pivotal role in the development of the Innocence Movement. Part II examines
innocence unmodified in the context of trials. It explains that one reason to protect
innocence unmodified is because the Supreme Court has not yet held that “actual”
innocence alone is enough to reverse a wrongful conviction; constitutional claims
underlying an “actual” innocence claim, working together, are necessary to
achieve justice. Part III explores innocence unmodified in the context of guilty
pleas. It reveals the degree to which the Court has itself reduced innocence to a
binary—prioritizing “actual” innocence over fundamental constitutional
protections for all people, including people who might be wrongly convicted if the
courts do not safeguard their constitutional rights. The Article concludes that a
modified conception of innocence dilutes the constitutional core that protects us
all—innocent or guilty alike.



Associate Professor of Law at Washington University in St. Louis. The author thanks
Sam Bagenstos, Adrienne Davis, Katherine Goldwasser, Rebecca Hollander-Blumoff, Amy
Hughes, Peter Joy, Pauline Kim, Andrea Lyon, Justin Marceau, Mary Prosser, Song
Richardson, and especially Laura Rosenbury for their excellent suggestions at various
stages of this project. Thanks also to Kelly Brunie, David Cutler, Daniel Rabinovitz, and
Felicia Williams for invaluable research assistance, with special thanks to David Cutler for
his insightful suggestions and careful reading. In addition, the author thanks the faculty at
the University of Illinois College of Law, as well as participants at Washington
University‟s Regional Junior Faculty Works-in-Progress Workshop. Finally, the author
extends a very special thanks to Washington University School of Law, Dean Kent
Syverud and the Israel Treiman research fellowship for tremendous support.

Electronic copy available at: http://ssrn.com/abstract=1726060

Innocence Unmodified

Introduction
The Innocence Movement1 has unwittingly participated in the construction
of a binary between “actual” and “legal” innocence.2 By focusing attention on
people who were not involved in the crime for which they were convicted, the
1

This Article uses the term “Innocence Movement” to describe the group action of various
people throughout the United States, including legal scholars, attorneys, and advocates
working in various Innocence Projects, whose primary goals are to raise awareness of
wrongfully incarcerated individuals and advocate for their release. Although the Innocence
Movement‟s main focus has been raising awareness for wrongfully incarcerated individuals
who are “actually innocent” of the crime, see discussion infra, Part I, this Article argues
that the Innocence Movement should broaden its focus and also raise awareness of the
plight of people who have been wrongfully convicted even though they are not “actually”
innocent. See discussion infra, Part I. While the Innocence Movement does not stop at the
country‟s borders, this Article focuses on developments within the United States itself.
The Innocence Project at The Benjamin N. Cardozo School of Law at Yeshiva University,
founded by Barry Scheck and Peter Neufeld, is a well known Innocence Project that is
arguably one of the leaders of the contemporary Innocence Movement within the United
States. See http://www.innocenceproject.org. See also Robert Carl Schehr, The Criminal
Cases Review Commission as a State Strategic Selection Mechanism, 42 AM. CRIM. L.
REV. 1289, 1293 (2005) (crediting the National Conference on Wrongful Convictions and
the Death Penalty, held at Northwestern University in 1998, as signaling the formal
beginning of the Innocence Moment). Others have described the “Innocence Movement”
as an “Innocence Revolution.” See Lawrence C. Marshall, The Innocence Revolution and
the Death Penalty, 1 OHIO ST. J. CRIM. L. 573, 573-74 (2004) (describing how the
“innocence revolution” is “changing assumptions about some central issues of criminal law
and procedure, how it is “born of science and fact, as opposed to choices among a
competing set of controversial values,” and how it “addresses a value that everyone shares;
accurate determinations of guilt and innocence”). Insofar as revolutions usually involve
fundamental changes in power or organizational structures, whereas social movements
involve group action focused on specific political or social issues, this Article employs the
term movement rather than revolution.
2
Stephanie Roberts and Lynne Weathered, Assisting the Factually Innocent: The
Contradictions and Compatibility of Innocence Projects and the Criminal Case Review
Commission, 29 OXFORD J. OF LEGAL STUD. 43, 49 (Spring 2009) (“In the criminal justice
system, a person may be considered to have been wrongly convicted if there were
procedural or legal errors upon which he or she can found a successful appeal. But, whilst
this may qualify as wrongful conviction in the broader sense, it would generally not be
understood as innocence outside the legal arena. There is a natural tension between the
commonly held notions of „innocence‟ (which are also usually utilized by the media) and
the concept of „innocence‟ or „wrongful conviction‟ as it applies in the legal system.
Whilst the public and the media‟s perception of terms such as „wrongful conviction‟ and
„miscarriage of justice‟ may appear to relate more to actual innocence than to cases in
which procedural errors have been made, the legal system has adopted much broader
definitions that include both.”).

2

Electronic copy available at: http://ssrn.com/abstract=1726060

Innocence Unmodified

Innocence Movement has helped hundreds of wrongly convicted people obtain
freedom. At the same time, focusing on the “actual” innocence of such people
minimizes other reasons for wrongful convictions. It overlooks the fact that a
person can be wrongly convicted even if the person “did” the crime, such as
someone whose constitutional rights were violated in the process of obtaining a
conviction. This Article argues for the need to reclaim an understanding of
innocence unmodified by qualifiers such as “actual” or “legal” in order to
safeguard fundamental constitutional rights that protect us all.
The media3 and legal scholars4 often use the terms “actually” innocent and
“factually” innocent to describe a person who had nothing to do with a crime: he is
not “actually” the person who committed the crime; the “facts” show that
somebody else did it. Similarly, the Supreme Court uses the terms “actual”
innocence and “factual” innocence interchangeably.5 Seldom do people focus on
3

See, e.g., Roberts & Weathered, supra note 2.
See, e.g., Margaret Raymond, The Problem with Innocence, 49 CLEV. ST. L. REV. 449,
456 (2001) (defining “factual innocence” as someone “who did not commit the actus reus
in question,” and distinguishing it from “legal innocence” and “burden of proof
innocence”); Daniel S. Medwed, Innocentrism, 2008 U. ILL. L. REV. 1549, 1555-57 (1998)
(using “actual innocence” and “factual innocence” interchangeably); William S. Laufer,
The Rhetoric of Innocence, 70 WASH. L. REV. 329, 389-90 (1995) (explaining that the
standard of proof for “legal innocence” is “reasonable doubt of guilt,” that the standard of
proof for “actual innocence” is “clear and convincing evidence that but for a constitutional
error, no reasonable juror would have found the petitioner eligible for the death penalty
under state law,” and that the standard of proof for “factual innocence” is that “[t]he
accused did not, in fact, commit the criminal offense as charged”). Some legal scholars
have defined “actual innocence” and “factual innocence” differently. See, e.g., Cathleen
Burnett, Constructions of Innocence, 70 UMKC L. REV. 971, 978 (2002) (defining “actual
innocence” as “someone who is not at the scene and had nothing to do with it,” and
“factual innocence” as “someone who was in some way involved with the actual killer…
and thus is considered to be an accomplice,” although he may not be guilty of first-degree
capital murder). This Article uses the terms “actual innocence” and “factual innocence”
interchangeably and distinguishes them from “legal innocence.” See discussion infra,
Introduction.
5
See, e.g., Herrera v. Collins, 506 U.S. 390, 417 (1993) (Herrera advanced a claim of
actual innocence to support a novel substantive constitutional claim that the execution of an
innocent person would violate the Eighth Amendment, and the Court observed, without
deciding, that “in a capital case a truly persuasive demonstration of „actual innocence‟
made after trial would render the execution of a defendant unconstitutional, and warrant
federal habeas relief if there were no state avenue open to process such a claim”); Schlup v.
Delo, 513 U.S. 298, 326-28 n.47 (1995) (observing that “Schlup‟s claim of innocence is
fundamentally different from the claim advanced in Herrera,” because Schlup‟s claim was
procedural rather than substantive, and holding that a compelling claim of actual innocence
enabling a court to consider otherwise procedurally defaulted constitutional claims may be
made when the petitioner shows, through new evidence, that it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt); House
v. Bell, 547 U.S. 518, 554 (2006) (holding that House‟s actual innocence claim satisfied
4

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other kinds of wrongful convictions, such as wrongful convictions stemming from
violations of constitutional rights.6 This razor focus on the wrongful convictions
of people who had nothing to do with the crime dilutes the spectrum of other
reasons why people are wrongly convicted. One downside of the focus on
“actual/factual” innocence is that courts, scholars, attorneys, and the media
overlook the wrongful convictions of people who have purely constitutional claims
without accompanying claims of “actual” innocence.
For example, on one end of the “innocence” spectrum, a person may be
considered “actually” innocent of a crime because the person was not there and
had nothing to do with it.7 When DNA evidence exists in such a case, DNA
evidence may be useful to exonerate these kinds of “actually” innocent people
because the DNA evidence does not match the DNA of the wrongly convicted
person.8
Another kind of “actual” innocence includes people who did not commit
the crime and whose innocence cannot be “proven” through DNA testing. Such
people might have been wrongly convicted because an eyewitness mistakenly
identified them, because the “true culprit” framed them, or because the prosecution
withheld exculpatory evidence.9 To prove innocence in these non-DNA cases,
Schlup‟s gateway standard for obtaining federal habeas review despite his state procedural
default, and declining to resolve Herrera‟s open question regarding the viability of a
freestanding innocence claim). See also Brandon L. Garrett, Claiming Innocence, 92
MINNESOTA L. REV. 1629, 1647-51 (2008) (observing that the “word „innocence‟ is used
casually in the media and by lawyers, convicts, scholars, and courts,” and defining
“innocent” as “those people who did not commit the charged crime”).
6
See, e.g., Raymond, supra note 4, at 457 (“Focusing as it does on factual innocence, the
wrongful convictions movement places a premium on it. It creates, in effect, a
supercategory of innocence, elevating factual innocence over the other categories. My
concern is that our jurors, thoroughly schooled in the importance of factual innocence, may
conclude that anything short of factual innocence is simply not good enough to justify an
acquittal.”).
7
See, e.g., Raymond, supra note 4, at 457 (defining “factual innocence” as someone “who
did not commit the actus reus in question”); Medwed, supra note 4, at 1555-57.
8
See, e.g., Richard Rosen, Innocence and Death, 82 N.C. L. REV. 61, 69-70 (2003) (“Until
the moment when the DNA test results came back, almost none of these cases [referring to
cases of individuals who were later exonerated] would have been considered exceptional
among criminal cases. The evidence against the defendant was the usual sort: eyewitness
identifications, confessions, suspicious behavior, and physical and other circumstantial
evidence supporting guilt.”).
9
See, e.g., Kyles v. Whitley, 514 U.S. 419 (1995) (reversing defendant‟s conviction by
finding, inter alia, that “the informant‟s behavior raised suspicions that he had planted both
the murder weapon and the victim‟s purse in the places they were found,” that “another
witness had been coached,” and that contrary to the evidence produced at trial, “there was
no consistency to eyewitness descriptions of the killer‟s height, build, age, facial hair, or
hair length”); see also Brady v. Maryland, 373 U.S. 83 (1963) (reversing defendant‟s
murder conviction on the issue of punishment because the prosecution had withheld

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witnesses may recant their previous testimony or additional evidence may surface.
When taken as a whole, this new evidence illuminates the defendant‟s innocence.10
At the other end of the innocence spectrum are people who did commit a
crime but who are nonetheless wrongly convicted—“legally” innocent—of the
crime for which they were convicted. Maybe the defendant did not understand the
nature of the charge against him, thus rendering his plea involuntary.11 Maybe the
police coerced a confession and relied on that coerced confession to obtain the
conviction.12 Or maybe a defendant pleaded guilty to a greater offense than his
actions warranted, such as second-degree murder instead of manslaughter.13
Because such people did engage in conduct that could be considered criminal, they
are not “actually” innocent the way the media,14 courts,15 and Congress16 usually
exculpatory evidence, thereby denying defendant due process of law).
10
After the Court reversed Kyles‟s conviction, see supra note 9, Kyles was tried three
more times. Each time the jury hung and the court declared a mistrial. In 1998, the
prosecution decided not to try Kyles a sixth time. Nina Rivkind and Steven F. Shatz,
CASES AND MATERIALS ON THE DEATH PENALTY 396 (2001), citing J. Gill, Murder Trial’s
Inglorious End, THE NEW ORLEANS‟ TIMES-PICAYUNE, Feb. 20, 1998, at B7.
11
See, e.g., McCarthy v. United States, 394 U.S. 459, 470 (1969) (reversing the conviction
of a person who had pleaded guilty to tax evasion and who had in fact not made certain tax
payments in three consecutive years, by holding that the district judge failed to ensure that
the defendant—who was “65 years old and in poor health at the time he entered his plea,
[and who] had been suffering from a serious drinking problem during the time he allegedly
evaded his taxes”—pleaded guilty with “full awareness of the nature of the charge”).
12
See, e.g., Missouri v. Seibert, 542 U.S. 600, 617 (2003) (affirming reversal of Seibert‟s
conviction and remanding for new trial because of the coercive police tactics in obtaining a
confession that was then used against Seibert at trial).
13
See, e.g., Henderson v. Morgan, 426 U.S. 637, 647 (1976) (holding that Morgan‟s plea to
second-degree murder was involuntary and his conviction was entered without due process
of law because the element of intent was never explained to him and because Morgan‟s
“unusually low mental capacity. . . forecloses the conclusion that the error was harmless
beyond a reasonable doubt, for it lends at least a modicum of credibility to defense
counsel‟s appraisal of the homicide as a manslaughter rather than a murder”).
14
Roberts & Weathered, supra note 2, at 49 (“Whilst the public and the media‟s perception
of terms such as „wrongful conviction‟ and „miscarriage of justice‟ may appear to relate
more to actual innocence than to cases in which procedural errors have been made, the
legal system has adopted much broader definitions that include both.”).
15
See, e.g., Herrera v. Collins, 506 U.S. 390, 417 (1993) (Herrera advanced a claim of
actual innocence to support a novel substantive constitutional claim that the execution of an
innocent person would violate the Eighth Amendment, and the Court observed, without
deciding, that “in a capital case a truly persuasive demonstration of „actual innocence‟
made after trial would render the execution of a defendant unconstitutional, and warrant
federal habeas relief if there were no state avenue open to process such a claim”); Schlup v.
Delo, 513 U.S. 298, 326-28 n.47 (1995) (observing that “Schlup‟s claim of innocence is
fundamentally different from the claim advanced in Herrera,” because Schlup‟s claim was
procedural rather than substantive, and holding that a compelling claim of actual innocence
enabling a court to consider otherwise procedurally defaulted constitutional claims may be
made when the petitioner shows, through new evidence, that it is more likely than not that

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employ that phrase. Nonetheless, they are “wrongly convicted”—or “legally”
innocent—of the crime because their constitutional rights were violated to obtain
the conviction.17 In this way, “legal” innocence could be said to constitute the
other end of the innocence spectrum.
Legal scholars have observed that the premium on “factual” innocence has
created a “supercategory of innocence, elevating factual innocence over the other
categories.”18 After identifying this “supercategory of innoncence,” Margaret
Raymond observed that “the [I]nnocence [M]ovement may have unintended
negative consequences on the criminal justice system.”19 Similarly, Carol Steiker
and Jordan Steiker20 have discussed that one of the dangers of focusing on “actual”
innocence is that “Americans can empathize with the harms that they fear could
happen to themselves, rather than those that happen only to „bad people.‟”21 They
also observe that “[l]urking behind innocence‟s appeal . . . might be indifference if
not hostility to other types of injustice.”22
This Article asserts that the focus on “actual” innocence has diluted the
core conception of innocence, and that two dangers have emerged as a result. One
danger is the creation of an “us” versus “them” mentality, whereby the public
no reasonable juror would have found petitioner guilty beyond a reasonable doubt); House
v. Bell, 547 U.S. 518, 554 (2006) (holding that House‟s actual innocence claim satisfied
Schlup‟s gateway standard for obtaining federal habeas review despite his state procedural
default, and declining to resolve Herrera‟s open question regarding the viability of a
freestanding innocence claim).
16
See, e.g., 28 U.S.C. § 2244(b)(2)(B)(i); 28 U.S.C. § 2244(b)(2)(B)(ii); 28 U.S.C. § 2254
(e)(2)(B); and Carol S. Steiker and Jordan M. Steiker, The Seduction of Innocence: The
Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and
Advocacy, 95 J. CRIM. L. & CRIMINOLOGY 587, 610-11 (2005) (discussing statutes).
17
See, e.g., Roberts & Weathered, supra note 2, at 50-51 (observing a “distinction between
innocence, as it would be understood outside the legal system, and legal innocence”, and
also observing that the trial courts‟ role is “to determine whether the defendant is „legally
guilty,‟ not whether he is actually innocent”).
18
See, e.g., Raymond, supra note 4, at 457.
19
Raymond, supra note 4, at 462 (explaining that it “may create distortions in the way that
actors in the criminal justice system . . . perceive their obligations and allegiances,” that it
“may convince the public, including policymakers, that the system works effectively to
reveal and redress wrongful convictions,” and that it may convince prospective jurors that
it is—or should be—the defendant‟s burden to prove innocence”).
20
Carol S. Steiker and Jordan M. Steiker, The Seduction of Innocence: The Attraction and
Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J.
CRIM. L. & CRIMINOLOGY 587 (2005).
21
Steiker & Steiker, supra note 20, at 597; see also Raymond, supra note 4, at 462
(observing that “the focus on factual innocence may create certain distortions in the way
that actors in the criminal justice system—„the ones left behind‟—perceive their
obligations and allegiences”).
22
Steiker & Steiker, supra note 20, at 597; see also Raymond, supra note 4, at 462 (the
focus on factual innocence “may convince prospective jurors that it is—or should be—the
defendant‟s burden to prove innocence”).

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identifies with the “actually” innocent “good” people and vilifies other wrongly
convicted “bad” people who have been convicted in violation of their
constitutional rights.23 This polarization runs the risk of reinforcing the public‟s
hostility to other types of wrongful convictions,24 such as wrongful convictions
derived from a violation of constitutional rights without “actual” innocence.25
A second danger, which is the focus of this Article, is that pitting
“actual/factual” innocence against “legal” innocence dilutes what innocence
means.26 This Article reclaims an unmodified vision of innocence in order to
protect the rights of people who did commit crimes, and who are nevertheless
wrongly convicted of those crimes because of constitutional violations involved in
their conviction. Agreeing to take (or to keep) clients such as these, with wrongful
conviction claims based on a deprivation of fundamental constitutional protections
rather than on what is commonly referred to as “actual” innocence, would be one
step toward reclaiming an unmodified vision of innocence. But mere caseload
expansion would be meaningless without first developing a more fundamental
change in thinking and language.

23

See, e.g., Susan Bandes, Protecting the Innocent as the Primary Value of the Criminal
Justice System, 7 OHIO ST. J. CRIM. L. 413, 435-36 (2009) (commenting on a proposal to
allocate resources based on the likelihood of factual innocence and observing that “[s]uch
arrangements risk confirming the public‟s long-held suspicion that defense lawyers should
not defend „those people‟ unless they are pretty sure they did not commit the crime
charged”); Robert Mosteller, Why Defense Attorneys Cannot, But Do, Care About
Innocence, 50 SANTA CLARA L. REV. 1 (2010) (“My fear is that innocence may become a
„wedge issue,‟ dividing progressives concerned with fairness from those principally
concerned with innocence, which may undercut support for some procedural guarantees
that do not promise to focus on the deserving accused—the innocent.”).
24
Steiker & Steiker, supra note 20, at 597.
25
See, e.g., Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome
and the Criminal Courts, 87 Wash. U. L. Rev. 1, 54 (2009) (“The level of certitude DNA
provides has become a de facto „benchmark,‟ and the actual innocence it establishes is a
touchstone for post-conviction relief. As a consequence, legal standards may be
formulated and applied in ways that tend to disadvantage other types of proof.”); Jeffrey
Kirchmeier, “The Death Penalty and the Question of Actual Innocence,” 42 Tulsa L. Rev.
403, 434 (2006) (“Although we use the term „wrongful execution‟ to mean the execution of
the innocent, executions of the guilty that are unfair, arbitrary, biased, or based on
unreliable aggravating evidence or incomplete mitigating evidence are also wrongful.”);
Carol Steiker and Jordan Steiker, Cruel and Unusual Punishment: Litigating Under the
Eighth Amendment: Opening a Window or Building a Wall?, 11 U. PA. J. CONST. L. 155,
157-58 (2008) (“In terms of advocacy, the focus on innocence in the capital context,
though it brought salutary reforms, also tends to deflect focus from non-innocence related
issues such as discrimination, inadequate representation, and excessive punishment (even
for those guilty of the underlying offense).”).
26
See also Brandon L. Garrett, Claiming Innocence, 92 MINNESOTA L. REV. 1629, 164751) (2008) (recognizing gradations of actual innocence claims, such as “substantial” claims
of innocence, “outcome-determinative claims of innocence,” and “indeterminate cases”).

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This Article therefore urges scholars, attorneys, and the courts to reclaim
the core meaning of innocence, unmodified by qualifiers such as “actual” or
“legal.”27 Reclaiming an unmodified understanding of innocence would continue
to protect “actually” innocent people. It would also strive to protect people with
strong constitutional claims warranting reversal of wrongful convictions who are
not “actually” innocent. In addition to protecting a range of wrongful convictions,
it would go a long way toward ensuring that critical constitutional rights remain in
place to protect us all.
The Article proceeds in three parts. Part I explains the pivotal role that
“actual” innocence has played in the Innocence Movement. It shows that even
though the Innocence Movement has begun to broaden its DNA-based focus to
include non-DNA-based claims, its goal has remained constant: achieving justice
for “actually” innocent people. Part I then shows how the Innocence Movement
has prioritized the cases of “actually” innocent people who were convicted through
trial over “actually” innocent people who pleaded guilty. The prioritization of
wrongful convictions derived from trials over wrongful convictions from pleas
underscores how the Innocence Movement has overlooked the claims of people
who have pleaded guilty and are not “actually” innocent, but who may still have
strong wrongful conviction claims based on fundamental constitutional violations.
Part II examines innocence unmodified in the context of trials and postconviction appeals. It asserts that one reason to protect innocence unmodified is
because under the Court‟s existing jurisprudence, “actual” innocence alone is not
enough to reverse a wrongful conviction. This is because the Supreme Court has
not yet decided whether the Constitution forbids the execution of an “actually”
innocent person who was convicted through a “full and fair” trial.28 Because the
Court has not recognized a freestanding “actual” innocence claim,29 the “actual”
innocence of a wrongly convicted person only matters as a door through which to
allow a court to reach underlying constitutional claims.30 Part II uses the example
27

See Susan Bandes, Symposium: Beyond Biology: Wrongful Convictions in the Post
DNA World: Framing Wrongful Convictions, 2008 UTAH. L. REV. 5 (2008) (discussing the
power of labels and cognitive bias, and suggesting broadening the term “wrongful
convictions” to include not only those who are factually innocent, but also those who have
suffered other injustices such that their guilt cannot be established beyond a reasonable
doubt).
28
See discussion infra, Part II, citing In Re Troy Anthony Davis, 130 S.Ct. 1 (2009)
(Scalia, J., dissenting) (citing, inter alia, Herrera v. Collins, 506 U.S. 390, 400-401, 416417 (1993)).
29
See, e.g., Herrera, supra note 5, at 417 (declining to reach Herrera‟s freestanding actual
innocence claim that the execution of an innocent person would violate the Eighth
Amendment); House, supra note 5, at 554 (declining to resolve Herrera‟s open question
regarding the viability of a freestanding innocence claim).
30
See Schlup v. Delo, 513 U.S. 298, 326-28 (1995), supra note 5 (holding that a
compelling claim of actual innocence enabling a court to consider otherwise procedurally
defaulted constitutional claims may be made when the petitioner shows, through new
evidence, that it is more likely than not that no reasonable juror would have found

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of a recent Supreme Court decision, In Re Troy Davis,31 to highlight how an
isolated prioritization of “actual” innocence does not achieve justice for wrongly
convicted people.
Part III examines innocence unmodified in the context of pleas. It reveals
the degree to which the Court has itself polarized innocence in the context of
pleas—prioritizing “actual” innocence over fundamental constitutional protections
for all people. This devaluation manifests itself in the Court‟s unwillingness to
presume innocence in the full sense of the word—an innocence unmodified—
during the plea process. It shows how the minimum admonishments courts give
pro se defendants who are pleading guilty, as explained in State v. Tovar,32 are an
example of the Supreme Court‟s willingness to overlook fundamental
constitutional protections during the plea process, even if this oversight leads to
wrongful convictions.
The Article concludes that a modified conception of innocence dilutes the
constitutional core that protects us all—innocent or guilty alike.
I.

The Innocence Movement’s Focus

Heralding exonerees as “actually innocent” people who served time for
crimes they did not commit,33 the Innocence Movement has had much success
reversing wrongful convictions through DNA testing.34 As the number of
exonerations35 obtained through DNA analysis has grown,36 the work of scholars
petitioner guilty beyond a reasonable doubt).
31
130 S.Ct. 1 (2009) (Years after Davis was convicted of capital murder and sentenced to
death, most of the witnesses in the case recanted their trial testimony and Davis submitted
new evidence that one of the main witnesses against him at trial was actually responsible
for the murder.).
32
541 U.S. 77 (2004) (When Tovar was charged with felony drunk driving, he argued that
a previous drunk driving offense—which he had pleaded guilty to pro se while in college—
should not be used to increase the severity of his current drunk driving charge to a felony.).
33
See, e.g., the November 12, 2009, dismissal of a murder indictment against Fernando
Bermudez, after he had served eighteen years in prison, because the trial court found “by
clear and convincing evidence that the defendant has demonstrated his actual innocence.”
Melissa Grace, Fernando Bermudez declared innocent after serving 18 years in prison for
murder, N.Y. DAILY NEWS, Nov. 12, 2009.
34
See website of the Cardozo Innocence Project, supra note 1 (explaining that “Innocence
Project is a national litigation and public policy organization dedicated to exonerating
wrongfully convicted people through DNA testing and reforming the criminal justice
system to prevent future injustice”).
35
“Exonerations” refers to an “official act declaring a defendant not guilty of a crime for
which he or she had previously been convicted.” Samuel R. Gross, Kristen Jacoby, Daniel
J. Matheson, Nicholas Montgomery, and Sujata Patil, Symposium: Innocence in Capital
Sentencing: Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. &
CRIMINOLOGY 523, 524 (Winter 2005) (hereinafter “Gross Study” or “Gross et al.”).
36
For example, the Gross Study, supra note 35, identified that between 1989 and 1991, the

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describing the DNA exonerations as a kind of “random audit”37 of systemic
problems within the criminal justice system has also gained traction.38 Similarly,
researchers have employed empirical analysis to study the number of exonerations
obtained through DNA testing, then used the number of DNA exonerations to
approximate the percentage of people who have been wrongly convicted.39
Another development within the Innocence Movement is a willingness to
include non-DNA based claims in the kinds of cases Innocence Projects are willing
to litigate.40 Because DNA is available in so few criminal cases,41 using DNA as
the primary means to prove innocence excludes those people who might be
innocent but who do not have DNA evidence to prove their innocence.42 Although
Innocence Projects still use DNA testing because of its seeming definitiveness in
proving innocence,43 increasingly more Innocence Projects are willing to examine
number of exonerations based on DNA testing averaged only one or two a year, then
between 1992 and 1995 it increased to an average of six a year, then from 2000 to 2003 it
averaged forty-two per year, with the highest yearly total of forty-one in 2002 and again in
2003. Gross Study, supra note 35, at 527.
37
Rosen, supra note 8, at 69.
38
Rosen, supra note 8, at 69.
39
See, e.g., Rosen, supra note 8, at 69-75, discussing the results of various studies and
articles that discuss those studies; Daniel Givelber, Meaningless Acquittals, Meaningful
Convictions: Do We Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317, 1343 (1997)
(discussing Kalven and Zeisel data estimating that five percent of all trials result in
convictions of innocent people); John Baldwin and Michael McConville, Jury Trial 50
(1979) (observing that approximately five percent of trials end in the conviction of an
arguably innocent person).
40
Carol S. Steiker and Jordan M. Steiker, The Seduction of Innocence: The Attraction and
Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J.
CRIM. L. & CRIMINOLOGY 587, 618-19 (2005) (describing an “explosion” of Innocence
Projects modeled on the Cardozo project and documenting that in 2005, there were “fortytwo other „innocence projects‟ in the United States, some of which follow the Cardozo
model of pursuing only DNA exonerations, but most of which pursue innocence claims by
traditional evidentiary means, as well”).
41
It is difficult to approximate the number of criminal cases in which DNA evidence is
available, largely because DNA evidence is more prevalent in some kinds of crimes (such
as murders or rapes) than other kinds of crimes (such as drugs or property crimes). See,
e.g., the Gross Study, supra note 35, at 529 (providing statistical information showing that
no DNA evidence for the exonerated individuals in their database convicted of drug and
property crimes, and showing the number of murder and rape cases for exonerated
individuals in their database which did have DNA evidence available).
42
See, e.g., Rosen, supra note 8, at 73-75 (discussing the impossibility of knowing how
many innocent people are convicted, and noting that “for every defendant who is
exonerated because of DNA evidence, there have been certainly hundreds, maybe
thousands, who have been convicted of crimes on virtually identical evidence. For those
thousands of defendants, though, there was no opportunity to scientifically test their guilt,
because there was no physical evidence that could have been subjected to scientific
scrutiny.”).
43
See Garrett, Claiming Innocence, supra note 26, at 1646 (“[A]lthough some

10

Innocence Unmodified

innocence claims based on evidence other than DNA.44 Complementing the
increased willingness of Innocence Projects to accept cases with non-DNA-based
claims, legal scholars have also begun to analyze the difficulty of proving
innocence with evidence other than DNA.45 As the remainder of this Part explores,
even though Innocence Projects have broadened their focus to accept non-DNA
based claims, they continue to focus on the “actual” innocence of people convicted
through trials.
A. “Actual” Innocence
By definition, the Innocence Movement has maintained a razor focus on
“actual” innocence. For example, of two hundred cases Brandon Garrett compiled
in a database tracking criminal defendants convicted of rape and/or murder who
were later exonerated through DNA testing,46 all of the cases include “actual”
innocence claims as a component of their exonerations.47 That is because Garrett
defines “the innocent as those who did not commit the crime charged.”48
Other innocence databases reveal a similar definitional focus on “actual”
innocence.49 One of the most comprehensive databases of exonerations to date is
the 2005 study authored by Samuel Gross et al (the “Gross Study”).50 The Gross
Study discusses “all exonerations”51 the researchers were able to locate that
occurred in a fifteen-year period between 1989 and 2003 that “resulted from
commentators casually refer to DNA testing as potentially „conclusive‟ of innocence or
guilt, evidence typically cannot be conclusive of innocence or guilt.”); Marshall, supra note
1, at 573-74 (“Spawned by the advent of forensic DNA testing and hundreds of postconviction exonerations, the innocence revolution is changing assumptions about some
central issues of criminal law and procedure,” including “accurate determinations of guilt
and innocence” that are “born of science and fact, as opposed to choices among a
competing set of controversial values.”).
44
Steiker & Steiker , supra note 20, at 618-19.
45
See, e.g., Gross et al., supra note 35, at 526-27; Rosen, supra note 8, at 73-75.
46
See Brandon L. Garrett, Judging Innocence, 108 COLUMBIA L. REV. 55 (2008) and
Claiming Innocence, 92 MINN. L. REV. 1629 (2008) (analyzing and describing the database
he compiled and continues to update).
47
Garrett‟s empirical study was expressly designed to “examine[] for the first time how the
criminal justice system in the United States handled the cases of people who were
subsequently found innocent through postconviction DNA testing.” Garrett, Judging
Innocence, supra note 46, at 1.
48
Brandon L. Garrett, Claiming Innocence, supra note 26, at 1645.
49
The Gross Study, supra note 35, is described in detailed throughout the remainder of this
section. See also D. Michael Risinger, Criminal Law: Innocents Convicted: An
Empirically Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761
(Spring 2007) (analyzing data supplied by the Innocence Project of Cardozo Law School
and further developed for the article).
50
Gross et al., supra note 35, at 523.
51
The Gross Study uses the term “exoneration” to mean “an official act declaring a
defendant not guilty of a crime for which he or she had previously been convicted.” Gross
et al., supra note 35, at 523.

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Innocence Unmodified

investigations into the particular cases of the exonerated individuals”52—which
amounted to 340 cases total.53 All of the 340 individuals maintained they were
“actually” innocent of the crime: “144 of them were cleared by DNA evidence,
196 by other means.”54 Of the 196 people exonerated by “other means,” “actual
innocence” played a role in every exoneration.55 Like Garrett,56 this was because
of the researchers‟ limited definition of “innocence.” The Gross Study defined
“innocent” as someone who did not do the crime: it purposely excluded from its
database individuals who were most likely involved in the crimes for which they
were convicted.57 Empirical studies like Garrett‟s and Gross‟s highlight the
Innocence Movement‟s focus on representing individuals who were “actually”
innocent of the crime for which they were convicted. As the next section will
illustrate, they also showcase the Innocence Movement‟s preference for
representing people who were convicted through trial rather than through pleas.
B. Trials
In Garrett‟s database of 200 cases, only nine of those cases involved
defendants who had pleaded guilty;58 the other 192 defendants had been convicted
through trial.59 Of the nine cases in which defendants pleaded guilty and were later
exonerated by DNA evidence, four of those cases involved defendants who were
represented by counsel when they pleaded guilty.60
Similarly, of the 340 exonerations Gross found, “only twenty of the
exonerees in [their] database pled guilty, less than six percent of the total.”61 As a
partial explanation for the low number of pleas in their database, the Gross Study
52

Gross et al., supra note 35, at 523.
Gross et al., supra note 35, at 523. The four ways in which people in their database were
exonerated included the following: “(1) In forty-two cases governors (or other appropriate
executive officers) issued pardons based on evidence of the defendants‟ innocence. (2) In
263 cases criminal charges were dismissed by courts after new evidence of innocence
emerged, such as DNA. (3) In thirty-one cases the defendants were acquitted at a retrial on
the basis of evidence that they had no role in the crimes for which they were originally
convicted. (4) In four cases, states posthumously acknowledged the innocence of
defendants who had already died in prison.” Id. at 524.
54
Gross et al., supra note 35, at 523-24.
55
Gross et al., supra note 35, at 523.
56
Garrett, Claiming Innocence, supra note 26, at 1645.
57
Gross et al., supra note 35, at 527 (explaining that “[i]t is possible that a few of the
hundreds of exonerated individuals we have studied were involved in the crimes for which
they were convicted, despite our efforts to exclude such cases”).
58
Garrett, Judging Innocence, supra note 46, at 74.
59
Garrett, Judging Innocence, supra note 46, at 74.
60
Compare Garrett, Judging Innocence, supra note 46, at 74 n.71 (describing and listing
names of the nine people who pleaded guilty) with the database of exonerated individuals
located at Cardozo‟s Innocent Project website, supra note 1 (including names of trial
attorneys for four of the nine people). Whether the other five people who pleaded guilty
were represented by counsel is unclear from the available information.
61
Gross et al., supra note 35, at 523.
53

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Innocence Unmodified

explains that it is “well known . . . that many defendants who can‟t afford bail
plead guilty in return for short sentences, often probation and credit for time
served, rather than stay in jail for months and then go to trial and risk much more
severe punishment if convicted.” 62 It goes on to explain that “[s]ome defendants
who accept these deals are innocent, possibly in numbers that dwarf false
convictions in the less common but more serious violent felonies, but they are
almost never exonerated—at least not in individual cases.”63
Such research has rich statistical information and analytical depth that
provides critical insight about criminal defendants who did not commit the crime
for which they were wrongfully convicted. The definitional choice of who is and
who is not included in these and other databases provides a way to understand the
focus on the “actual” innocence of persons convicted through trial. Such studies
illuminate the limited number of exonerees whose original convictions were based
on guilty pleas, and they also reveal important information about how the concept
of innocence is understood. For example, both the Garrett Study and the Gross
Study‟s decisions to purposely exclude individuals with solely legal claims without
accompanying claims of innocence64 provides information about who falls within
the “innocence” circle and who falls outside of it.65
Similarly, even though an increasing number of Innocence Projects are
willing to take cases based on non-DNA evidence,66 most Innocence Projects
continue to prioritize cases with evidence that establishes an “actual” innocence
claim, rather than cases with evidence that establishes a wrongful conviction claim
without an accompanying claim of “actual” innocence.67 For example, imagine a
62

Gross et al., supra note 35, at 536 n.29, referencing, as an example, Barbara Taylor,
Trapped on Rikers Island, N.Y. TIMES, Sept. 7, 1996, at 21.
63
Gross et al., supra note 35, at 536. The phrase “not individual cases” is then contrasted
against data from “mass exonerations of innocent defendants who were falsely convicted as
a result of large scale patterns of police perjury and corruption,” such as the Rampart
scandal in Los Angeles, in which members of the Los Angeles Police Department were
revealed to have “routinely lied in arrest reports” and otherwise fabricated evidence to
“frame innocent bystanders.” Id. at 533. “In the aftermath of this scandal, at least 100
criminal defendants who had been framed by Rampart CRASH officers—and possibly as
many as 150—had their convictions vacated and dismissed by Los Angeles County judges
in late 1999 and 2000. The great majority were young Hispanic males who had pled guilty
to false felony gun or drug charges.” Id. The Gross Study did not include any of these
mass exonerations resulting from large scale patterns of police perjury in their study. Id.
64
Gross et al., supra note 35, at 527 (“It is possible that a few of the hundreds of
exonerated individuals we have studied were involved in the crimes for which they were
convicted, despite our efforts to exclude such cases.”).
65
Similar to Gross et al., supra note 35, at 527, Brandon L. Garrett, Claiming Innocence,
supra note 26, at 1645, states, “I define the innocent as those who did not commit the crime
charged.”
66
Steiker & Steiker, 95 J. CRIM. L. & CRIMINOLOGY at 618-19, discussed supra note 20.
67
See, e.g., Stephanie Roberts and Lynne Weathered, Assisting the Factually Innocent:
The Contradictions and Compatability of Innocence Projects and the Criminal Case

13

Innocence Unmodified

person who did in fact commit a crime and was arrested for that crime, then was
coerced to confess and was convicted in large part through reliance on the
confession. While that person may have a wrongful conviction claim, he has no
accompanying claim of “actual” innocence. Because he has no “actual” innocence
claim to accompany the wrongful conviction claim, most Innocence Projects
would not be very likely to take his case.68
Now consider the case of a person who was both wrongfully convicted and
“actually” innocent, such as a bystander to a murder who had nothing to do with
the murder but was swept up by the police and coerced to confess to it, even
though he was literally just in the wrong place at the wrong time. After the
prosecution uses the coerced confession to convict him, that person has
constitutional claims to argue that he was wrongly convicted, as well as an “actual”
innocence claim to support his wrongful conviction. Innocence Projects would
more likely take his case.69
C. The Combination
In sum, although advocates within the Innocence Movement have
broadened their vision to include non-DNA based innocence claims instead of
relying solely on DNA-based innocence claims, Innocence Projects continue to
devalue wrongful conviction claims that do not have accompanying claims of
“actual” innocence. Innocence Projects often refuse to represent defendants
without “actual” innocence claims to accompany their wrongful conviction
claims,70 or if they take a person‟s case and find out during the course of
representation that the person does not have an “actual” innocence claim to
accompany the wrongful conviction claim, they might withdraw from
representation.71
Similarly, the exonerees documented in innocence databases are largely
people who are convicted through trials, rather than people who pleaded guilty.
By combining these two factors together—people who have wrongful conviction
claims without accompanying claims of “actual” innocence, and people who
pleaded guilty rather than proceeded to trial—a group of legally innocent people
emerges that is largely missing from most discussions within the Innocence
Movement.
An unmodified conception of innocence would help to protect the
constitutional rights of this currently overlooked group of people. But it would
Review Commission, 29 OXFORD J. OF LEGAL STUD. 43, 51 (Spring 2009) (observing that
“factual innocence is the overriding consideration for Innocence Projects”).
68
Steiker & Steiker, supra note 20, at 619-20.
69
Steiker & Steiker, supra note 20, at 619-20.
70
Steiker & Steiker, supra note 20, at 619-20.
71
Steiker & Steiker, supra note 20, at 597, 619-20 (observing that “when an innocence
project determines that “the claimant has no colorable innocence claim,” some clients
whose claims “turn out to be only partial or purely legal defenses . . . may have their noninnocence claims ignored or abandoned mid-stream”).

14

Innocence Unmodified

also do more. As Part II explains, the very viability of “actual” innocence claims
relies on a robust protection of innocence unmodified.
II.

Examining Innocence Unmodified
A. The Presumption of Innocence Before Conviction

A key part of our criminal justice process,72 the presumption of innocence
is a principle so “axiomatic and elementary”73 that its enforcement “lies at the
foundation of the administration of our criminal law.”74 The presumption of
innocence does not rest on the question of “actual” innocence alone.75 To the
contrary, the presumption of innocence encompasses an innocence unmodified by
terms such as “legal” and “actual,” ensuring that the government bears the burden
of proving the defendant “legally guilty” beyond a reasonable doubt.76 When the
72

By the middle of the eighteenth century, historian C.K. Allen maintains that most of the
changes in the nature of criminal trials had taken place, except for the development of the
presumption of innocence. C.K. Allen, The Presumption of Innocence, in LEGAL DUTIES
AND OTHER ESSAYS IN JURISPRUDENCE 273-74 (1977). Allen attributes the delay to three
factors. The first factor was that people believed that the criminal law was still “so
imperfect, so sporadic, so riddled with loopholes, that no relaxation whatever could be
made consistently with safely” because there was no effective police system in place. Id.
The second factor was that people believed that “trifling inaccuracies” in criminal
indictments “allowed many guilty persons to escape” when their indictment was
invalidated.” Id. at 275. For example, “Sir Harry Poland records—[though it is unclear
what case he refers to]—that in 1827 Buller J. quashed an inquisition for murder because it
states that the jurors on their oath presented . . . whereas the wording should have been, on
their oaths.” Id. at 275, citing Changes in Criminal Law and Procedure Since 1800, in A
CENTURY OF LAW REFORM: TWELVE LECTURES ON THE LAW OF ENGLAND DURING THE
19TH CENTURY 62 (1901). The third factor is that people believed there were still many
“wrongs” a person could commit that were not considered crimes. Allen, The Presumption
of Innocence, at 275. The combination of these factors, Allen asserts, left people feeling
insecure about their own personal safety, and this fear slowed the development of the
presumption of innocence. Id.
Allen then argues that several changes occurred during the course of the
nineteenth century that allowed people to feel sufficiently safe to be open to the idea of the
presumption of innocence. These changes included criminalizing most “wrongs” that had
not before been considered crimes, as well as developing “a professional police force, a
Public Prosecutor‟s department, and a Criminal Investigation Department.” Id. at 276. As
a result, Allen believes that by the end of the nineteenth century society was feeling
sufficiently safe from crime that it was more open to the possibility of affording criminal
defendants additional protection in the form of the presumption of innocence.
73
Coffin v. United States, 156 U.S. 432, 453 (1895).
74
156 U.S. at 453.
75
See William S. Laufer, “The Rhetoric of Innocence,” 70 WASH. L. REV. 329, 348-62
(1995) (describing the historical basis of the presumption of innocence and the role of both
factual and legal innocence).
76
See, e.g., Stephanie Roberts and Lynne Weathered, Assisting the Factually Innocent:
The Contradictions and Compatibility of Innocence Projects and the Criminal Case Review
Commission, 29 OXFORD J. OF LEGAL STUD. 43, 50-51 (Spring 2009) (“A . . . confusion of

15

Innocence Unmodified

prosecution fails to meet its burden, the return of a “not guilty” verdict signals that
the defendant is innocent of the crime.77 This verdict could mean that the
prosecution did not meet its burden of proving the defendant guilty beyond a
reasonable doubt because the defendant was “actually” innocent. It could also
mean that the prosecution did not meet its burden of proof—as to either an element
of the crime or as to the degree of certainty understood as “proof beyond a
reasonable doubt”—even though the defendant engaged in conduct underlying the
government‟s charge.78
B. Asserting Innocence After Conviction
The pre-conviction presumption of innocence that a person possesses
differs from innocence claims made on post-conviction appeal.79 Once a person is
convicted—either by trial or plea—the presumption of innocence disappears.80
When a person who has been convicted appeals that conviction with
accompanying claims of innocence, the person comes before the court in a
decidedly different posture than that person came before the court prior to the
conviction: “In the eyes of the law . . . [the] petitioner does not come before the
Court as one who is „innocent,‟ but, on the contrary, as one who has been
convicted by due process of law . . .”81
Once a person has been convicted of a crime, “legal” innocence and
“actual” innocence often interweave in critical ways during the post-conviction
lay and legal perception surrounds the definition of the term „presumption of innocence‟.
The presumption of innocence is a technical term which requires the prosecution to prove
its case beyond reasonable doubt. If the prosecution case fails it does not follow that the
defendant is factually innocent, as a verdict of „not guilty‟ by the jury does not mean that
the defendant is not responsible for the crime. So, whilst it is the role of the trial courts to
determine whether the defendant is „legally guilty,‟ not whether he is actually innocent,
there is a clear distinction drawn between innocence, as it would be understood outside the
legal arena, and legal innocence.”); see also Laufer, supra note 75, at 387-91 (describing
different types of innocence, standards of proof, and utilization); James Q. Whitman‟s THE
ORIGINS OF REASONABLE DOUBT: THEOLOGICAL ROOTS OF THE CRIMINAL TRIAL (2007)
(tracing the history of the term “beyond a reasonable doubt” through centuries of Christian
theology and common-law history).
77
See Roberts & Weathered, supra note 76, at 50-51.
78
See, e.g., Margaret Raymond, The Problem with Innocence, 49 CLEV. ST. L. REV. 449,
456 (2001) (“A „not guilty‟ verdict can mean several things. It can mean that the jurors
believed the defendant committed all of the necessary elements of the crime, but did not
believe it with the requisite degree of certainty. Call this „burden of proof innocence.‟ A
„not guilty‟ verdict can also mean that the jury found some, but not all, of the elements of
the offense, typically because the defendant committed the actus reus of the offense, but
lacked the necessary mens rea. Call this „legal innocence.‟ A „not guilty‟ verdict can also
mean that the jurors believed that the defendant did not commit the actus reus of the crime
in question. . . . Call this „factual innocence.‟”).
79
In re Winship, 397 U.S. 358 (1970); Herrera v. Collins, 506 U.S. 390, 398 (1993).
80
Herrera, 506 U.S. at 398-99.
81
Herrera, 506 U.S. at 398-99.

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Innocence Unmodified

appeals process, as the rest of this Part explores. The recent Supreme Court
decision In Re Troy Davis82 shows how the relief for wrongly convicted “actually”
innocent people relies on a robust preservation of an innocence unmodified.
1. The Facts of Davis
Twenty-one years ago in Georgia, Troy Anthony Davis was charged with
the murder of Mark Allen MacPhail.83 The crime occurred just after midnight on
August 19, 1989.84 An off-duty police officer, MacPhail reported for work as a
security guard at the Greyhound bus station in Savannah.85 The bus station was
adjacent to a fast-food restaurant.86 The prosecution‟s theory of the case was that
as the restaurant was closing, a fight broke out in the restaurant parking lot.87 The
prosecution contended that Troy Davis was in the restaurant parking lot and struck
a homeless man88 with a pistol.89
When the fight began, MacPhail was at the bus station.90 Still wearing his
police uniform, “including badge, shoulder patches, gun belt, .38 revolver,
nightstick,” 91 and “bullet-proof vest,”92 MacPhail ran from the bus station to the
restaurant parking lot.93 Davis fled.94 As MacPhail ordered Davis to halt, the
prosecution‟s evidence was that Davis turned around and shot MacPhail.95 When
MacPhail fell to the ground, the prosecution said that Davis, smiling, walked up to
the fallen officer and shot him several more times.96 MacPhail was shot in his left
cheek and right leg, and the fatal bullet entered MacPhail‟s body through a gap on
the left side of his bullet proof vest.97
In addition to evidence from the night of the shooting, the prosecution put
on additional evidence that the next day, Davis “told a friend that he had been
involved in an argument at the restaurant the previous evening and struck someone
with a gun . . . [and] that when a police officer ran up, Davis shot him and then
went to the officer and „finished the job‟ because he knew the officer got a good

82

130 S.Ct. 1 (2009).
130 S.Ct. at 1 (Scalia, J., dissenting).
84
Davis v. State, 426 S.E.2d 844 (Ga. 1993).
85
426 S.E.2d at 846.
86
426 S.E.2d at 846.
87
130 S.Ct. at 2 (Scalia, J., dissenting).
88
130 S.Ct. at 2 (Scalia, J., dissenting).
89
426 S.E.2d at 846.
90
426 S.E.2d at 846.
91
426 S.E.2d at 846.
92
426 S.E.2d at 846.
93
130 S.Ct. at 2 (Scalia, J., dissenting).
94
426 S.E.2d at 846.
95
426 S.E.2d at 846.
96
426 S.E.2d at 846.
97
426 S.E.2d at 846.
83

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Innocence Unmodified

look at his face when he shot him the first time.”98 The prosecution also
maintained that Davis had “told a cellmate a similar story.”99
The jury trial began exactly two years later, on August 19, 1991.
Represented by an attorney, Davis‟s defense was that he “was present during the
beating of the homeless man,” 100 but that it was “one of his companions who shot
Officer MacPhail.”101 Davis was found guilty of murder, two counts of aggravated
assault, and possession of a firearm during the commission of the felony.102 He
was sentenced to death for the murder.103
2.

The Procedural History

In the years between Davis‟s conviction and his scheduled execution date,
“seven of the State‟s key witnesses . . . recanted their testimony; [and] several
individuals . . . implicated the State‟s principal witness as the shooter.” 104 Based
on this new evidence establishing his “actual innocence” of the crime, Davis
eventually attempted to file a second federal habeas petition setting forth a
freestanding claim of “actual” innocence.105
Davis‟s petition landed in the United States Supreme Court in the summer
of 2009. The procedural posture of Davis‟s case prior to arriving in the Supreme
Court in 2009 is critical in understanding the import of the Supreme Court‟s
action. The procedural posture of Davis‟s case also sheds light on how “actual”
innocence and “legal” innocence interweave with one another. It is therefore
important to outline what Davis had done before he attempted to file a second
federal habeas petition setting forth a freestanding innocence claim.
Prior to landing in the Supreme Court in the summer of 2009, Davis had
already litigated and lost a state post-conviction petition in the Georgia state
courts. 106 He had also litigated and lost a first federal habeas petition in the federal
courts.107 This first federal habeas corpus petition had raised a number of
constitutional violations that he had not raised in his state post-conviction
appeal.108 Because these new claims were procedurally defaulted in federal district
98

426 S.E.2d at 846.
426 S.E.2d at 846.
100
130 S.Ct. at 2 (Scalia, J., dissenting).
101
130 S.Ct. at 2 (Scalia, J., dissenting).
102
426 S.E.2d at 845.
103
426 S.E.2d at 845.
104
130 S.Ct. at 1.
105
130 S.Ct. at 1 (Scalia, J., dissenting).
106
In Re Troy Anthony Davis, 565 F.3d 810, 813-14 (11th Cir. 2009) (describing
procedural history).
107
565 F.3d at 813-14.
108
565 F.3d at 813 (listing some of the constitutional violations Davis raised in his first
federal habeas corpus petition that he had not raised before in state court, including “(1)
that the prosecution knowingly presented false testimony at his trial, in violation of Giglio;
(2) that the prosecution failed to disclose material exculpatory evidence, in violation of
99

18

Innocence Unmodified

court by virtue of the fact that he had not raised them in state court first, Davis
argued that “he should be able to raise these claims anyway because he was
„actually‟ innocent of the underlying murder.”109 Although Davis did not raise a
substantive freestanding claim of “actual” innocence in his first federal habeas
petition,110 “during the proceedings . . . Davis moved the district court to stay the
federal habeas proceedings in order for him to present a freestanding „actual‟
innocence claim to the state courts.”111 The district court denied this request and
also denied his petition.112 In doing so, the court reached the merits of his
constitutional claims without also ruling on his “actual” innocence claim.113 The
Eleventh Circuit affirmed this ruling and “made clear that Davis had „not ma[d]e a
substantative claim of “actual” innocence.‟”114
Davis then filed an “extraordinary motion for new trial”115 in Georgia state
trial court with accompanying affidavits setting forth “newly discovered evidence
in support of his motion.”116 The state trial court reviewed his affidavits and
denied his motion.117 The Georgia Supreme Court granted his application for
discretionary review and affirmed the trial court‟s order denying Davis‟s
extraordinary motion for a new trial.118 After the United States Supreme Court
denied his petition for certiorari review of the Supreme Court of Georgia‟s
decision,119 Davis applied for permission with the Eleventh Circuit to file a second
or successive habeas corpus petition in federal district court,120 and this request
was denied.121
At this point, Davis filed a habeas petition setting forth his freestanding
substantive innocence claim in the United States Supreme Court pursuant to its
original jurisdiction.122 Before filing his application with the Eleventh Circuit for
leave to file a second or successor habeas petition in federal district court in
Georgia,123 Davis‟s prior appeals and post-conviction petitions had never before
included a freestanding substantive innocence claim. His first federal habeas
Brady; (3) that his trial counsel was constitutionally ineffective, in violation of
Strickland.”).
109
565 F.3d at 813, citing Schlup v. Delo, 513 U.S. 298 (1995).
110
565 F.3d at 813.
111
565 F.3d at 814.
112
565 F.3d at 813.
113
565 F.3d at 813.
114
Davis v. Terry, 465 F.3d 1249, 1251 (11th Cir. 2007).
115
565 F.3d at 814, citing Ga. Code Ann. Section 5-5-41 (2008).
116
565 F.3d at 814.
117
565 F.3d at 814.
118
565 F.3d at 814 (noting that he also filed a motion for a stay of execution with his
application for discretionary review).
119
Davis v. Georgia, 129 S.Ct. 397 (Oct. 14, 2008).
120
565 F.3d at 814.
121
565 F.3d 810, 825 (2009).
122
United State Supreme Court Rule 20.4(a); In Re Troy Anthony Davis, 130 S.Ct. at 1.
123
565 F.3d at 813.

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Innocence Unmodified

petition had included an innocence claim as a door through which to reach his
procedurally defaulted unfair trial claim.124 This essentially meant that he
submitted his innocence claim to the court as a way for the court to reach the
underlying “legal” claim that would have otherwise been procedurally defaulted in
his case.125 In evaluating this prior innocence claim, the Georgia Supreme
Court,126 the Georgia State Board of Pardons and Appeals,127 and the Eleventh
Circuit Court of Appeals128 each considered affidavits and other supporting
evidence of Davis‟s innocence and “found it lacking.”129
When the Eleventh Circuit denied Davis leave to file his second or
successor petition in federal district court, the Eleventh Circuit noted that one
remaining avenue left available to him was to ask the United States Supreme Court

124

Davis v. Terry, 465 F.3d 1249, 1251 ( 2006) (per curiam) (observing that Davis‟s
federal habeas corpus petition “does not make a substantive claim of actual innocence” but
rather “argues that his constitutional claims of an unfair trial must be considered, even
though they are otherwise procedurally defaulted, because he has made the requisite
showing of actual innocence under Schlup”); Schlup v. Delo, 513 U.S. 298 (1995),
discussed supra note 5.
125
465 F.3d at 1251-52.
126
The Georgia Supreme Court looked “beyond bare legal principles that might otherwise
be controlling to the core question of whether a jury presented with Davis‟s allegedly-new
testimony would probably find him not guilty or give him a sentence other than death.”
Davis v. State, 660 S.E.2d 354, 362 (Ga. 2008). “After analyzing each of Davis‟s proffered
affidavits and comparing them with the evidence adduced at trial, it concluded that it was
not probable that [a jury] would have produced a different result.” 130 S.Ct. at 4 (Scalia, J.,
dissenting) (citing Davis v. State, 660 S.E.2d at 358-363).
127
When presented with Davis‟s clemency petition, the Georgia Board of Pardons and
Paroles “stayed his execution” and “spent more than a year studying and considering [his]
case.” 130 S.Ct. at 4 (Scalia, J., dissenting), citing Brief in Opposition 14-15 (statement of
Board of Pardons and Paroles). According to the Board of Pardon and Paroles, it “„gave
Davis‟s attorneys an opportunity to present every witness they desired to support their
allegation that there is doubt as to Davis‟s guilt;‟ it „heard each of these witnesses and
questioned them closely;‟ . . . [and] [i]t „studied the voluminous trial transcript, the police
investigation report and the initial statements of the witnesses,‟ and „had certain physical
evidence retested and Davis interviewed.‟” 130 S.Ct. at 4 (Scalia, J., dissenting), citing
Brief in Opposition 14-15 (statement of Board of Pardons and Paroles) (internal citations
omitted). “„After an exhaustive review of all available information regarding Troy Davis‟s
case and after considering all possible reasons for granting clemency, the Board . . .
determined that clemency was not warranted.” 130 S.Ct. at 4 (Scalia, J., dissenting), citing
Brief in Opposition 14-15 (statement of Board of Pardons and Paroles).
128
When the Eleventh Circuit reviewed the record, it “came to a conclusion „wholly
consistent with the repeated conclusions of the state courts and the State Board of Pardons
and Paroles.‟ 565 F.3d 810, 825 (2009). „When we view all of this evidence as a whole,
we cannot honestly say that Davis can establish by clear and convincing evidence that a
jury would have not have found him guilty of Officer MacPhail‟s murder.‟ 565 F.3d at
825.” 130 S.Ct. at 4 (Scalia, J., dissenting).
129
130 S.Ct. at 4 (Scalia, J., dissenting).

20

Innocence Unmodified

to exercise its original habeas jurisdiction over the case.130 Although the Supreme
Court had not exercised such jurisdiction in more than fifty years,131 on August 17,
2009, it decided to do so.
In a per curium order, the Supreme Court transferred Davis‟s case to the
United States District Court for the Southern District of Georgia to “receive
testimony and make findings of fact as to whether evidence that could not have
been obtained at the time of trial clearly establishes petitioner‟s innocence.”132 The
order included a concurrence by Justice Stevens (joined by Justices Ginsburg and
Breyer), and a dissent by Justice Scalia (joined by Justice Thomas). In his dissent,
Justice Scalia noted the following:
This Court has never held that the Constitution forbids the execution of a
convicted defendant who has had a full and fair trial but is later able to
convince a habeas court that he is “actually” innocent. Quite to the
contrary, we have repeatedly left that question unresolved, while
expressing considerable doubt that any claim based on alleged “actual
innocence” is constitutionally cognizable.133
Justice Stevens responded to Scalia‟s observation by asserting that “[t]he
substantial risk of putting an innocent man to death clearly provides an adequate
justification for holding an evidentiary hearing,”134 and that the transfer to the
district court was not a “fool‟s errand.”135
Scalia‟s observation is nonetheless correct. The Supreme Court has never
held that the Constitution forbids the execution of a convicted defendant who has
had a “full and fair trial”136 but is later able to convince a habeas court that he is
“actually” innocent.137
130

565 F.3d at 826-27 (“Davis still may petition the United States Supreme Court to hear
his claim under its original jurisdiction. The Supreme Court has made clear that the habeas
statute, even after the AEDPA amendments of 1996, continues to allow it to grant a writ of
habeas corpus filed pursuant to its original jurisdiction.”).
131
130 S.Ct. at 1 (Scalia, J., dissenting).
132
130 S.Ct. 1, 1 (2009).
133
130 S.Ct. at 3 (Scalia, J., dissenting) (citing, inter alia, Herrera v. Collins, 506 U.S. 390,
400-401, 416-417 (1993)).
134
130 S.Ct. at 1.
135
130 S.Ct. at 1.
136
The term “full and fair” is a term of art with a long history within Supreme Court
precedent. For a thoughtful discussion of the history and evolution of the term, see Justin
Marceau, Don’t Forget Due Processs: The Path Not (Yet) Taken in Section 2254 Habeas
Corpus Adjudications (on file with author). While a full discussion of the evolution and
tensions within the Court‟s use of the term is beyond the scope of this Article, for examples
of how the Court has employed the term, see, e.g., Stone v. Powell, 428 U.S. 465 (1975)
(holding that “where the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial,” and further noting that in such a context, “the

21

Innocence Unmodified

3.

Protecting Innocence Unmodified

Troy Davis‟s case highlights the degree to which claims of “actual”
innocence interweave with a broader conception of innocence. Because the
Supreme Court has yet to resolve whether a freestanding innocence claim is
cognizable,138 Davis‟s original federal pleadings framed his “actual” innocence
claim as a door through which to reach his substantive legal claims. Put another
way, his “actual” innocence claim was a path to reach his “legal” innocence
claims. After those pleadings failed, his application in the Eleventh Circuit for
leave to file a second or successive petition in the federal district court, and then
his federal habeas corpus petition in the United States Supreme Court, were based
on a substantive freestanding innocence claim: his execution would be
unconstitutional under the Eighth and Fourteenth Amendments because he is
actually innocent of the crime of murder.139

contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment
is minimal, and the substantial societal costs of application of the rule persist with special
force”); and more recently, Boumediene v. Bush, 553 U.S. 723 (2008) (observing that
“[t]he idea that the necessary scope of habeas review in part depends upon the rigor of any
earlier proceedings accords with our test for procedural adequacy in the due process
context,” then assessing the process of the Combatant Status Review Tribunals, “the
mechanism through which petitioners‟ designation as enemy combatants became final,” in
order to determine the scope of habeas review). See also Paul M. Bater, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441
(1963) (resisting the “notion that inquiry on habeas should be mere repetition . . . of what
has gone before” and suggesting modifications “to make clear that where a federal
constitutional question has been fully canvassed by fair state process, and meaningfully
submitted for possible Supreme Court review, then the federal district judge on habeas,
though entitled to redetermine the merits, has a large discretion to decide whether the
federal error, if any, was prejudicial, whether justice will be served by releasing the
prisoner, taking into account in the largest sense all relevant factors, including his
conscientious appraisal of the guilt or innocence of the accused on the basis of the full
record before him”).
137
House, 547 U.S. at 555; Herrera, 506 U.S. at 400-401, 416-417. See also District
Attorney‟s Office for the Third Judicial District v. Osborne, 129 S.Ct. 2308, 2321 (2009)
(noting that “Osborne also obliquely relies on an asserted federal constitutional right to be
released upon proof of „actual innocence,” and that “[w]hether such a federal right exists is
an open question”).
138
See House, 547 U.S. at 555; Osborne, 129 S.Ct. at 2321. While the cognizability of a
freestanding claim of “actual innocence” remains an open question in the Supreme Court,
some states have relied on their state constitutional jurisprudence to recognize the viability
of such claims. See, e.g., Illinois v. Washington, 665 N.E.2d 1330, 1337 (Ill. 1996)
(holding as “a matter of Illinois constitutional jurisprudence that a claim of newly
discovered evidence showing a defendant to be actually innocent of the crime for which he
was convicted is cognizable as a matter of due process,” and noting that this holding
“aligns Illinois with other jurisdictions likewise recognizing, primarily as a matter of state
habeas corpus jurisprudence, a basis to raise such claims under the rubric of due process”).
139
565 F.3d at 813.

22

Innocence Unmodified

Davis shows that one reason to protect an unmodified conception of
innocence is because under the Court‟s existing jurisprudence, “actual” innocence
and “legal” innocence go hand-in-hand to achieving justice for a wrongly
convicted person: the “actual” innocence claim opens the door to consideration of
the underlying “legal” claim.140 Although Davis did not prevail on the underlying
“legal” claims, his “actual” innocence claim was the device through which his
“legal” claims were heard at all. In other words, but for his “actual” innocence
claim, he may not have received his day in court on his underlying “legal” claims.
In addition to the way that “actual” innocence and “legal” innocence
interweave in the Court‟s existing jurisprudence, as Davis winds its way back up to
the Court, the Court could use Davis as a lens through which to discuss another
way that “legal” innocence and “actual” innocence intersect. Recall that in his
dissent, Justice Scalia phrased the open question before the Court as the idea that
the “Court has never held that the Constitution forbids the execution of a
convicted defendant who has had a full and fair trial but is later able to convince a
habeas court that he is „actually‟ innocent.”141 Within the construction of Scalia‟s
question is the assumption that a trial could be assessed as having been “full and
fair” even if it resulted in the conviction of an “actually” innocent person. Rather
than resting the decision on the question of “actual” innocence alone, the Court
could thus decide through Davis that a trial cannot be found to have been
constitutionally “full and fair” if it resulted in the conviction of an “actually”
innocent person.142
In this way, Davis‟s “legal” innocence and “actual” innocence claims
would continue to interweave. Rather than using his “actual” innocence claim to
access his otherwise procedurally defaulted “legal” claims (a strategy that he tried
and failed to do through phases of his appellate process), the “actual” innocence
claim would be part and parcel of the “legal” claim that the trial was
constitutionally deficient. It would thus be part of a claim that constitutional
deficiencies undermined the fairness of the trial process.
Finally, the Court could also use Davis as a lens through which to
announce the viability of a freestanding claim of “actual” innocence.143 The Court
could announce through Davis that a federal constitutional right based on “actual”
140

Schlup, 513 U.S. at 314-15; House, 547 U.S. at 554-55.
130 S.Ct. at 3 (Scalia, J., dissenting), citing, inter alia, Herrera v. Collins, 506 U.S. 390,
400-401, 416-417 (1993).
142
See Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303 (1993)
(exploring whether the Court‟s innocence focus supports habeas review of “bareinnocence” claims); Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629
(2008) (discussing the Court‟s failure to recognize a constitutional claim of innocence).
143
See Steiker, Innocence and Federal Habeas, supra note 142, at 312 (explaining that the
“Court should authorize the federal courts to entertain bare-innocence claims whether or
not such claims can fairly be characterized as „constitutional‟”); Garrett, Claiming
Innocence, supra note 142, at 1633 (explaining how the Court should recognize a
constitutional claim of “factual” innocence irrespective of constitutional violations).
141

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Innocence Unmodified

innocence does exist. Whether Davis is the case through which the Court will
examine the open question of “actual” innocence depends largely on the opinion
the federal district court issued after conducting Davis‟s long-awaited evidentiary
hearing in federal district court. Because of the highly unusual procedural posture
of the case—transferred from the Supreme Court (exercising its original
jurisdiction) to a federal district court in order to “receive testimony and make
findings of fact as to whether evidence that could not have been obtained at the
time of the trial clearly establishes petitioner‟s innocence”— the district court‟s
findings of fact and framing of the issue are key to what will happen next.144
Unfortunately for Davis, after finally receiving his long-awaited
evidentiary hearing in federal district court, the district court concluded that “Davis
has failed to prove his innocence.”145 In so doing, the district court decided that a
freestanding claim of actual innocence is indeed cognizable.146 It also found that
while Davis‟s “new evidence casts some additional, minimal doubt on his
conviction, it is largely smoke and mirrors.”147 Because “[t]he vast majority of the
evidence at trial remains intact, and the new evidence is largely not credible or
lacking in probative value,”148 the Court held that “Davis failed to make a showing
of actual innocence that would entitle him to habeas relief in federal court.”
While the district court clearly articulated its findings and analysis in
denying Davis‟s petition,149 it readily admitted that the jurisdictional effects of its
decision, especially with regard to appeal, are unclear.150 “[U]nable to locate any
legal precedent or legislative history on point,”151 it assumed that it was
“functionally . . . operating as a magistrate for the Supreme Court, which suggests
144

130 S.Ct. at 1 (Stevens, J., concurring) (“The District Court may conclude that section
2254(d)(1) does not apply, or does not apply with the same rigidity, to an original habeas
petition such as this . . . . The court may also find it relevant to the AEDPA analysis that
Davis is bringing an „actual innocence‟ claim . . . . Alternatively, the court may find . . .
that it „would be an atrocious violation of our Constitution and the principles upon which it
is based‟ to execute an innocent person.‟”).
145
In Re Troy Anthony Davis, CV409-130 (S.D. Ga., Aug. 24, 2010) (on file with author),
at 2.
146
Davis, supra note 145, at 91 at 171 (“executing an innocent person would violate the
Eighth Amendment of the United States Constitution”).
147
Davis, supra note 145, at 170.
148
Davis, supra note 145, at 170.
149
In the concluding footnote of its opinion, the district court emphasized this clarity by
stating: “After careful consideration and an in-depth review of twenty years of evidence,
the Court is left with the firm conviction that while the State‟s case may not be ironclad,
most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail‟s
murder. A federal court simply cannot interpose itself and set aside the jury verdict in this
case absent a truly persuasive showing of innocence. To act contrarily would wreck
complete havoc on the criminal justice system. See Herrera, 506 U.S. at 417.” Davis,
supra note 145, at 171 n.108.
150
Davis, supra note 145, at 1 n.1.
151
Davis, supra note 145, at 1 n.1.

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Innocence Unmodified

appeal of this order would be directly to the Supreme Court.”152 Whether the
district court‟s decision goes next to the Supreme Court remains to be seen.
Because the district court did not find Davis‟s actual innocence claims to
be persuasive enough to grant his habeas petition, it seems unlikely that Davis‟s
case will serve as a vehicle through which the Court announces a freestanding
claim of actual innocence. Nonetheless, the Court‟s exercise of its original
jurisdiction in sending Davis‟s case to federal district court shed much light on
how “actual” innocence claims interweave with “legal” innocence. It also showed
the importance of reclaiming a robust understanding of an innocence unmodified
in the event the district court had found Davis to be “actually” innocent.
In addition, the Supreme Court‟s instruction to the federal district court to
“receive testimony and make findings of fact as to whether evidence that could not
have been obtained at the time of trial clearly establishes petitioner‟s innocence”153
highlighted another critical component of innocence claims: the important role
trials serve in safeguarding claims of innocence. As the next section explores, in
contrast to defendants found guilty through trial, defendants who plead guilty face
additional hurdles in later establishing their innocence.
III.

Guilty Pleas and Innocence Unmodified

Contrary to Troy Davis‟s decision to go to trial, the vast majority of
criminal defendants plead guilty.154 Many of those defendants are represented by
attorneys; others are not. In the Gross Study discussed in Part I, of the 340
exonerations found within the fifteen year period between 1989 and 2003, “only
twenty of the exonerees in [the] database pled guilty, less than six percent of the
total.”155 As the Gross Study reveals, when discussing innocence and
exonerations, relatively little is known about the plight of defendants who plead
guilty. Even more removed is the plight of defendants who plead guilty without
attorneys—especially pro se defendants who plead guilty and later claim to be
“legally” innocent.156
152

Davis, supra note 145, at 1 n.1.
130 S.Ct. at 1 (Stevens, J., concurring) (emphasis added).
154
Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably
Acquit the Innocent? 49 RUTGERS L. REV. 1317, 1337 (1997) (noting that more than 90%
of convictions for violent felonies in a survey of the seventy-five largest counties in the
United States were the result of guilty pleas); see also Rosen, supra note 8, at 74 n.42
(citing Givelber).
155
Gross et al., supra note 35, at 523.
156
One of the most comprehensive empirical studies of pro se felony defendants was
authored by Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical
Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423 (2007). That study noted the
difficulty in obtaining information about pro se felony defendants: the State Court
Database she analyzed contained roughly 20,000 defendants for each year of data, but it
only had information for about forty or fifty pro se defendants. Id. at 441-42. The Federal
Docketing Database she analyzed had a similarly insufficient sample size for pro se
defendants. Id. at 442-43.
153

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Innocence Unmodified

This oversight in the studies is understandable in part. Defendants who
plead guilty forego most of their salient appellate issues in the process of pleading
guilty.157 Even if their constitutional rights were violated somewhere between
arrest and conviction, after a defendant admits in court that he committed the
charged crime, it becomes exceedingly difficult to argue that a constitutional
violation prior to the plea warrants reversal of the conviction.158 The best, if not
the only, appellate issue a defendant who pleads guilty may later have is that the
plea was not knowingly, intelligent, and voluntary,159 but even that assertion is
difficult to prove to the extent necessary to reverse the conviction.160
In contrast to defendants who plead guilty, defendants convicted following
a jury trial retain a host of salient appellate issues. Given this reality of appellate
litigation, it is not surprising that most people who have been exonerated were
originally convicted through trial (and that most of those people were additionally
represented by counsel at their trial). When the “actual” innocence of a convicted
person is proven through such tangible methods as DNA analysis, it “opens the
door” for the court to consider the constitutional errors that occurred during the
trial.161 The combination of “actual” innocence and serious constitutional errors is
a compelling combination that has overturned many convictions. Because
defendants who plead guilty may be missing the “actual” innocence component—
and because defendants who plead guilty instead of going to trial waive many of
their appellate issues—defendants who plead guilty face an arduous uphill battle in
post-conviction litigation.
Even though a defendant who pleads guilty has limited appellate options,
this limited appellate reality should not justify the devaluation of innocence. To
the contrary, the fact that it is difficult to overturn a guilty plea on appeal
underscores the importance of ensuring that defendants who plead guilty do so
with full knowledge and understanding of the strength of their innocence claims
before it becomes too late to assert them.
157

Julian A. Cook, III, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading
of Criminal Defendants, 75 U. COLO. L. REV. 863 (2004) (the plea process and proposing
reforms).
158
Julian A. Cook, III, Federal Guilty Pleas Under Rule 11: The Unfulfilled Promise of
the Post-Boykin Era, 77 NOTRE DAME L. REV. 597, 615-24 (2002) (demonstrating how
judicial employment of leading and compound questioning during the Rule 11 hearing fails
to ensure the entry of knowing and voluntary guilty pleas).
159
Boykin v. Alabama, 395 U.S. 238, 242 (1969) (recognizing the need for a public record
indicating that a plea was knowingly and voluntarily made).
160
Cook, Federal Guilty Pleas Under Rule 11: The Unfulfilled Promise of the Post-Boykin
Era, supra note 158, at 615-24; see also United States v. Ruiz, 536 U.S. 622, 629 (2002)
(finding that the Constitution does not require the prosecution to disclose material
impeachment evidence prior to entering a plea agreement, and observing that “the law
ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would likely apply in general in the
circumstances”) (emphasis included).
161
Schlup v. Delo, 513 U.S. 298 (1995), discussed supra note 5.

26

Innocence Unmodified

One way to ensure that defendants who plead guilty do so with complete
knowledge is to rely on the attorneys who represent them to examine, evaluate, and
explain the strength of the prosecution‟s case.162 In the case of defendants
represented by counsel, the court evaluating the defendant‟s guilty plea assumes
the defendant has discussed his case with his attorney in sufficient depth to ensure
the defendant understands what he is being asked to admit163 and that he pleads
guilty knowingly, intelligently, and voluntarily.164
While one can debate the extent to which attorneys take time to fully
apprise their clients of what they are giving up by pleading guilty, pro se
defendants who plead guilty have not consulted with attorneys. The fact that pro
se defendants have not reviewed viable claims of innocence (in all senses of the
word, encompassing both “actual” and “legal” innocence) with an attorney before
pleading guilty highlights the significance of the court‟s role during their plea. The
court is the only entity in the position of ensuring that pro se defendants who plead
guilty do so “knowingly.”165 If the court does not inform pro se defendants that by
pleading guilty they risk overlooking a viable defense and/or the opportunity to
obtain an independent opinion on whether it is wise to plead guilty, once the plea is
final, it is exceedingly difficult to “undo” the conviction through post-conviction
litigation.166

162

See, e.g., Brady v. United States, 397 U.S. 742, 757 (1970) (“Often the decision to plead
guilty is heavily influenced by the defendant‟s appraisal of the prosecution‟s case against
him and by the apparent likelihood of securing leniency should a guilty plea be offered and
accepted. Considerations like these frequently present imponderable questions for which
there are no certain answers; judgments may be made that in the light of later events
seemed improvident, although they were perfectly sensible at the time.”); Henderson v.
Morgan, 426 U.S. 637, 647 (1976) (noting that while “[i]t may be appropriate to assume
that in most cases defense counsel routinely explain the nature of the offense in sufficient
detail to give the accused notice of what he is being asked to admit,” this case was
“unique” because “the trial judge found as a fact that the element of intent was not
explained to respondent”); Model Rules of Prof‟l Conduct R. 1.2(d) (“[A] lawyer may
discuss the legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity, scope,
meaning or application of the law.”).
163
Morgan, 426 U.S. at 647.
164
Boykin, 395 U.S. at 242.
165
See State v. Tovar, 541 U.S. 77, 88 (2004), citing Johnson v. Zerbst, 304 U.S. 458, 464
(1938), for the proposition that the Court has not “prescribed any formula or script to be
read to a defendant who states that he elects to proceed without counsel. The information a
defendant must possess in order to make an intelligent election, our decisions indicate, will
depend on a range of case-specific factors, including the defendant‟s education or
sophistication, the complex or easily grasped nature of the charge, and the stage of the
proceeding.” See also Boykin, 395 U.S. at 242.
166
As the Gross Study itself recognized, some defendants choose to plead guilty in
exchange for shorter sentences even though they may be innocent, and those defendants
“are almost never exonerated. . . .” Gross et al., supra note 35, at 536.

27

Innocence Unmodified

Given the courts‟ critical role in ensuring that a pro se plea is knowing and
voluntary, one might think that the Supreme Court would require lower courts to
inform pro se defendants that by pleading guilty they might overlook possible
defenses that could be used to establish their innocence, or that the opportunity to
consult with an attorney would help them determine whether it is in their best
interest to plead guilty. Even though lower courts are in the only position to give
these kinds of warnings to pro se defendants, the Supreme Court ruled in State v.
Tovar167 that under the United States Constitution, courts have no obligation to do
so.
Tovar clarified the minimum admonishments lower courts are required to
give defendants before accepting their pleas of guilt.168 It held that the
Constitution does not require a court to inform a pro se defendant about the risks
of proceeding without counsel, including the risk of overlooking innocence and
other defenses. 169 In light of this reality, this Part examines how defendants who
plead guilty may have viable innocence claims that are devalued by the courts at
the front end of the plea and by Innocence Projects at the back end of the plea.
Rather than a simple opinion reaffirming Supreme Court jurisprudence under the
Sixth Amendment, the Court‟s reasoning in Tovar provides an example of the
Court falling prey to a binary vision of innocence because it shows the Court
prioritizing “actual” innocence above safeguarding constitutional protections.
A. The Court’s Reasoning in Tovar
Tovar examined the minimum admonishments courts are required to give a
pro se criminal during a plea colloquy.170 To understand the Court‟s reasoning, it
is first important to note that the Court did not dispute that a guilty plea is a
“critical stage” of the criminal process in which a defendant must be afforded
counsel.171 In order to waive counsel at the plea stage, courts ensure that a
criminal defendant knows what he or she is giving up.172 A trial court that fails to
so inform a criminal defendant risks upper courts overturning the plea on appeal
because the defendant did not enter into the plea knowingly and intelligently.173
Because the plea is such a critical stage of the criminal process, the
minimal admonishments trial courts must give a criminal defendant who is
pleading guilty are critical—and these admonishments become even more critical
when the defendant is pleading guilty without the aid of counsel.174 Despite the
importance of ensuring that the criminal defendant enters into a plea knowingly
and voluntarily, Tovar held that the Sixth Amendment does not require a trial court
167

541 U.S. 77 (2004).
U.S. at 91 (citing Pet. for Cert. i).
169
U.S. at 91 (citing Pet. for Cert. i).
170
541 U.S. 77 (2004).
171
541 U.S. at 80.
172
541 U.S. at 80.
173
541 U.S. at 80.
174
541 U.S. at 80.
168

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Innocence Unmodified

to inform a pro se defendant that an attorney may provide an independent opinion
whether it is wise to plead guilty.175 It further explained that trial courts do not
have to tell a defendant that without an attorney, the defendant risks overlooking a
defense.176 The Court explained this decision by expressing concern that a
defendant would “delay the plea” to get counsel and that such consultation would
impede “the prompt disposition of the case” and waste resources. Some
background surrounding the Tovar case is helpful to understand the context of this
reasoning.177
1. Contextual Background
Felipe Tovar was arrested for drunk driving three different times in the
state of Iowa. The first time he was arrested, he represented himself and pleaded
guilty.178 The second time, an attorney represented him and he pleaded guilty.179
The third time, Tovar faced a third-offense drunk driving charge, which is a felony
in Iowa.180 Represented by different counsel for his third offense,181 he argued that
his first prior conviction could not be used against him to enhance his most recent
drunk driving offense to a felony because he had not been admonished at the time
of his first plea about the advantages of having counsel.182 The trial court
disagreed, and Tovar was convicted of third-offense drunk driving following a
bench trial.183
On appeal, the Iowa Supreme Court reversed the trial court‟s decision.184
The Iowa Supreme Court held that under the Sixth Amendment to the United
States Constitution, Tovar‟s first uncounseled guilty plea was not knowing and
voluntary, and thus it could not be used as basis to enhance his subsequent drunk
driving offense to a felony.185 In reaching this result, the Iowa Supreme Court
found that the Sixth Amendment to the United States Constitution requires a judge
to advise a pro se defendant who wishes to plead guilty that the decision to waive
counsel entails the risk that the defendant will overlook a viable defense, and
deprives the defendant of the opportunity to obtain an independent opinion on

175

U.S. at 91 (citing Pet. for Cert. i).
U.S. at 91 (citing Pet. for Cert. i).
177
541 U.S. at 93, citing Brief for United States as Amicus Curiae at 28-29; Tr. of Oral
Arg. 20-21.
178
541 U.S. at 81-85.
179
541 U.S. at 85.
180
541 U.S. at 85; Iowa Code section 321J.2(2)(c) (1999).
181
The author represented Felipe Tovar in the trial court for this third offense when she
was an Assistant Public Defender for the State of Iowa. On appeal, he was represented by
the Office of the State Appellate Defender.
182
541 U.S. at 85-86.
183
541 U.S. at 86-87.
184
State v. Tovar, 656 N.W.2d 112, 121 (Iowa 2003).
185
656 N.W.2d at 121.
176

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Innocence Unmodified

whether, under the facts and applicable law, it is wise to plead guilty.186 Granting
certiorari, the United States Supreme Court disagreed.187
2. Anticipated Consequences
In one of the final paragraphs of Tovar, the Court noted two overlapping
consequences that could result from the warning mandated by the Iowa Supreme
Court.188 First, the “admonitions at issue might confuse or mislead a defendant
more than they would inform [him].”189 Second, after a defendant receives such
warnings, the defendant might misconstrue the warnings as a “veiled suggestion
that a meritorious defense exists or that the defendant could plead to a lesser
charge, when neither prospect is a realistic one.”190 After expressing concern that
the admonitions might lead to either of these two results, the Court observed that:
[i]f a defendant delays his plea in the vain hope that counsel could uncover
a tenable basis for contesting or reducing the criminal charge, the prompt
disposition of the case will be impeded, and the resources of either the
State (if the defendant is indigent) or the defendant himself (if he is
financially ineligible for appointed counsel) will be wasted.191
In support of this argument, the Court cited the Amicus Brief submitted by the
United States192 and two pages of the Oral Argument Transcript,193 neither of
which provided citations or empirical evidence to support the concern that such
admonitions would confuse defendants or cause them to mistakenly think they
have a meritorious defense. What the citations to the Amicus Brief and the Oral
Argument Transcript did provide support for was the fact that most people plead

186

656 N.W.2d at 120-21.
541 U.S. at 81.
188
541 U.S. at 93.
189
541 U.S. at 93.
190
541 U.S. at 93.
191
541 U.S. at 93, citing Brief for United States as Amicus Curiae at 28-29; Tr. of Oral
Arg. 20-21.
192
In fact, the Court draws much of its language directly from the United States‟ Amicus
Brief. See Brief for United States as Amicus Curiae at 28-29 (“There exists a potential
danger, however, that a defendant may misinterpret such a warning as a veiled suggestion
that a meritorious defense actually exists in his own case. If the misimpression creates an
artificial inducement for the defendant to consult with an attorney, even though in fact
there is no viable basis for contesting the criminal charges, the prompt and efficient
disposition of the case will be impeded, and the resources of either the State (if the
defendant is indigent) or the defendant himself (if he is financially ineligible for appointed
counsel) will be wasted.”)
193
541 U.S. at 93, citing Tr. of Oral Arg. 20-21.
187

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Innocence Unmodified

guilty,194 and if these defendants chose to have a trial instead of plead guilty, the
government would have to hire more judges and build more courtrooms.195
B. Prioritization of “Actual” Innocence and Efficiency
The Court‟s reasoning in Tovar reveals two concerns informing the
Court‟s holding. The first concern is that giving defendants the proposed
admonitions regarding the strength of legal defenses will cause a domino effect
leading to more trials: most defendants who hear the admonitions will decide to
stop their plea to take time to consult with an attorney; after these defendants have
consulted with an attorney, the defendants will decide to go to trial; and the large
number of defendants who will thereby choose to take their cases to trial rather
than plead guilty will clog the court system and force the states and federal
government to incur additional expenses by hiring more judges and opening more
courthouses. The second, somewhat contradictory, concern is that most defendants
who hear the admonitions will decide to stop their plea to take time to consult with
an attorney even if they do not proceed to trial. As such, continuing the plea
hearings so that defendants can consult with counsel will waste court resources
because the consultation will only lead to a delayed guilty plea.
Both concerns are unsubstantiated by any empirical evidence.196 One is
thus left to wonder what constitutes the basis for these concerns. Such inquiry
leads to the possibility that underlying motivations inform the Court‟s judicial
efficiency concerns: one based on a documented fact, and two based on
unsupported assumptions. The well documented fact behind judicial efficiency is
that most criminal cases are disposed of through guilty pleas.197 The first
assumption is that admonishing pro se defendants about the risks of not evaluating
legal defenses at the plea stage will decrease the judicial efficiency. The second
assumption is based on the Court‟s prioritizing “actual” innocence over the
protection of other constitutional rights.
194

Brief for United States as Amicus Curiae at 17 n. 7 (citing table from Judicial Business
of the United States Courts) (The “vast majority of federal criminal convictions are
obtained as the result of pleas of guilty.”).
195
Brief for United States as Amicus Curiae at 17-18, (citing Santobello v. New York, 404
U.S. 257, 260 (1971)) (“If every criminal charge were subjected to a full-scale trial, the
States and Federal Government would need to multiply by many times the number of
judges and court facilities.”).
196
541 U.S. at 93, citing Brief for United States as Amicus Curiae at 28-29; Tr. of Oral
Arg. 20-21.
197
See, e.g., Bureau of Justice Statistics: Felony Defendants in Large Urban Counties,
1998, iii-iv (available at www.ojp.usdoj.bjs/pub) (explaining that every two years, as part
of its State Court Processing Statistics program, the Bureau of Justice Statistics tracks a
sample of felony cases filed during the month of May in 40 of the Nation‟s 75 largest
counties, and that the most recent study, which analyzed cases filed during May 1998,
found that “Nearly all (96%) convictions obtained during the 1-year study period were the
result of a guilty plea.”); see also Brief for United States as Amicus Curiae at 17 n.7 (citing
table from Judicial Business of the United States Courts).

31

Innocence Unmodified

1.

Judicial Efficiency

The first assumption regarding decreased judicial efficiency leads to the
conclusion that state and federal courts have a keen interest in maintaining the
efficiency of pleas. The argument is that because of the courts‟ interest in
protecting efficiency, courts strive to avoid anything that could threaten the
effectiveness of the “plea machine”—as does a set of admonitions that could result
in some criminal defendants choosing to forgo their plea in order to consult with an
attorney before proceeding further.
In light of this undercurrent of judicial expediency permeating Tovar, it
may be no surprise that state courts—who also have an interest in judicial
expediency—have almost invariably followed Tovar rather than interpreting their
own state constitutions or other state authority to afford criminal defendants
greater protection than the federal constitution requires.198 Such resounding state
silence could be viewed as the states‟ failure to “step into the breach” left by the
Court‟s “retreat from its commitment to the protection of individual rights,”199
because states are either aligning their state constitutions with the federal
constitution or relying solely on the federal constitution to define the minimum
admonishments state judges must give pro se defendants during guilty pleas. The
states‟ silence thus signals their decision to follow suit with the United States
Supreme Court in order to ensure expediency and finality in the plea process.
While the Court admits that judicial expediency informs its analysis, at
least in part, the Court does not directly verbalize the second assumption regarding
the prioritization of “actual” innocence.
2.

Prioritizing “Actual” Innocence

The Court‟s second assumption in Tovar reveals that the Court values the
“actual” innocence of the pro se defendant pleading guilty more than protecting a
broader, unmodified conception of innocence (which would include “actual”
innocence as well as legal defenses and other forms of “legal” innocence).200 In
198

For example, the Supreme Court of Wisconsin has relied on its “superintending and
administrative authority over the Wisconsin court system” to extend greater protections to
pro se defendants pleading guilty than the Court outlined in Tovar. See State v. Ernst, 699
N.W.2d 92, 98 (Wisc. 2005) (“To prove…a valid waiver of counsel, the circuit court must
conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to
proceed without counsel, (2) was aware of the difficulties and disadvantages of selfrepresentation, (3) was aware of the seriousness of the charge or charges against him, and
(4) was aware of the general range of penalties that could have been imposed on him.”).
199
See, e.g., James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH.
L. REV. 761, 762 n.7 (1992) (referencing bibliographies of old and new literature focusing
on state constitutional law).
200
Another case that supports this claim is United States v. Ruiz, 536 U.S. 622, 625 (2002),
where the Court held that the Constitution did not require the government to disclose
material impeachment evidence prior to the defendant pleading guilty. In reaching this
result, the Court observed that “impeachment information is special in relation to the

32

Innocence Unmodified

fact, more than simply prioritizing the “actual” innocence of pro se defendants
pleading guilty, the Court‟s reasoning shows the Court‟s willingness to ignore
“legal” innocence altogether by instructing lower courts that minimum
admonishments that do not warn defendants about the risk of foregoing possible
legal claims nonetheless pass constitutional muster.
Consider how a typical guilty plea works. When a defendant announces
he wants to plead guilty, it is at that moment—before the court even accepts the
plea—that any interest in “legal” innocence disappears, while a focus on “actual”
innocence remains: when a trial court receives and evaluates a pro se plea, the
court explores the “actual” innocence of the defendant by deciding whether there is
a factual basis for the crime before rendering judgment.201 Courts do this in
different ways. Some ask the defendant to describe his actions in his own words,
while others ask the prosecutor to summarize the facts of the case. Regardless of
the mechanism by which the court assesses “actual” innocence, the court ensures
that there is a “factual basis” for the plea before accepting it.
On the flip side, courts are not required to explore whether the defendant
understands legal defenses or other forms of “legal” innocence—such as
exculpatory evidence which could be used at trial—before accepting a guilty plea.
For example, courts do not ask prosecutors to disclose fundamental weaknesses in
their case prior to a plea,202 and depending on when the plea takes place in the
discovery process, prosecutors may not have even disclosed exculpatory evidence
or other discovery prior to the plea.203
fairness of a trial, not in respect to whether a plea is voluntary (“knowing,” “intelligent,”
and “sufficiently aware”).” 536 U.S. at 629 (emphasis in original). The Court also noted
that the plea agreement at issue in the case required the government to provide “any
information establishing the factual innocence of the defendant.” 536 U.S. at 631. “That
fact,” the Court concluded, “along with other guilty-plea safeguards, see Fed. Rule Crim.
Proc. 11, diminishes the force of Ruiz‟s concern that, in the absence of impeachment
information, innocent individuals, accused of crimes, will plead guilty.” 536 U.S. at 631.
201
See, e.g., FED. R. CRIM. P. 11 (providing that the court shall not accept a guilty plea
without first addressing the defendant personally and determining the plea is made
voluntarily with an understanding of the nature of the charge and the consequences of the
plea, and that judgment shall not be entered upon a guilty plea unless the court is satisfied
that there is a factual basis for the plea); McCarthy v. United States, 394 U.S. 459, 465
(1968) (explaining that although the procedure embodied in Rule 11 is not constitutionally
mandated, the purposes of Rule 11‟s provisions are (1) “to assist the district judge in
making the constitutionally required determination that a defendant‟s guilty plea is truly
voluntary”; and (2) “to produce a complete record at the time the plea is entered of the
factors relevant to this voluntariness determination”).
202
See, e.g., United States v. Ruiz, 536 U.S. 622, 625 (2002) (the Constitution does not
require the government to disclose material impeachment evidence prior to the defendant
pleading guilty).
203
See Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to
New Realties, 2006 WIS. L. REV. 541 (2006) (describing different discovery processes and
when prosecutors disclose information); Kevin C. McMunigal, Disclosure and Accuracy in

33

Innocence Unmodified

In evaluating whether guilty pleas pass constitutional muster, the Court
thus prioritizes “actual” innocence over other constitutional rights, such as the
effective assistance of counsel to explore exculpatory evidence, weaknesses in the
government‟s case, or other legal defenses that comprise an innocence unmodified.
The Court‟s willingness to prioritize “actual” innocence over other constitutional
rights is arguably not as problematic when a defendant is represented by counsel.
Presumably in such cases the defendant‟s attorney has already examined the
strength of the prosecution‟s case and whether any viable legal defenses exist that
would warrant taking the case to trial—or perhaps simply negotiating a better plea
deal.204 The trial court assumes such inquiry on the part of defense counsel when
the court asks defense counsel during the plea colloquy whether any “legal reason”
exists for the court not to accept the plea.205
But when a defendant pleads guilty without counsel,206 the lack of inquiry
into an unmodified understanding of innocence—combined with the court‟s
unwillingness to warn the pro se defendant that he may have viable defenses he is
overlooking—severely disadvantages pro se defendants. In effect, this reality
strips pro se criminal defendants who plead guilty of the full protection of the
presumption of innocence—including both “legal” and “actual”—and thereby
denies them due process of law.207 By not ensuring that pro se defendants have
the Guilty Plea Process, 40 HASTINGS L.J. 957 (1989) (advocating for mandatory
disclosure of Brady material to defendants who plead guilty).
204
See, e.g., Model Rules of Prof‟l Conduct R. 1.2(d) (“[A] lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or assist a
client to make a good faith effort to determine the validity, scope, meaning or application
of the law.”).
205
Interview with Patrick Brayer, Assistant Public Defender, St. Louis County Public
Defender Office, St. Louis, Missouri (Feb. 2010) (notes on file with author) (describing
typical plea colloquy in St. Louis County District Associate Court).
206
See Erica J. Hashimoto, Defending the Right of Self-Representation: An Empirical Look
at the Pro Se Felony Defendant, 85 N.C. L. REV. 423 (2007) (explaining the difficulty in
obtaining empirical information about pro se felony defendants); Julian A. Cook, III, All
Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants,
75 U. COLO. L. REV. 863 (2004) (discussing inadequacies in the plea process and proposing
reforms).
207
While acknowledging that the Sixth Amendment guarantees defendants who face
incarceration a right to counsel at all “„critical stages‟ of the criminal process,” 541 U.S. at
86 (citing Maine v. Moulton, 474 U.S. 159, 179 (1985)), and while also acknowledging
that a plea hearing qualifies as a “critical stage,” 541 U.S. at 86 (citing White v. Maryland,
373 U.S. 59, 60 (1963)), Tovar highlights a distinction between the role of counsel at trial
and the role of counsel at a plea by citing Patterson v. Illinois. 487 U.S. 285 (1988).
Patterson was a case involving post-indictment questioning in which the Court observed
the importance of taking a “pragmatic approach to the waiver question” by asking “what
purposes a lawyer can serve at the particular stage of the proceedings in question, and what
assistance he could provide to an accused at that stage.” Tovar, 541 U.S. at 90. After
citing this proposition, Tovar notes the State of Iowa‟s position that the plea colloquy
“„makes plain that an attorney‟s role would be to challenge the charge or sentence,‟ and

34

Innocence Unmodified

explored their unmodified innocence before pleading guilty, and by not warning
pro se defendants about the dangers of foregoing such inquiry before pleading
guilty, the Court reveals its willingness to modify the constitutional rights of
defendants who are pleading guilty.
Compare the extensive colloquy the Court requires before a pro se
defendant represents himself at trial208 with the minimum colloquy the Court
requires before a pro se defendant pleads guilty. Before trial, courts drill pro se
defendants regarding such details as their knowledge of the rules of evidence, their
understanding of the range of objections available to them, and their fluency with
court procedures and protocols.209 Before pleading guilty, courts do not even ask
pro se defendants whether they are aware that consulting with an attorney might be
a good idea.210
The significance of the Court requiring a more extensive colloquy before a
defendant waives counsel at trial reveals the efficiency interest underlying the
Court‟s analysis: it takes far more court time to have defendants go trial than to
plead guilty, and pro se defendants representing themselves at trial consume even
more of the court‟s resources.211 Therefore, the extensive colloquy trial courts use
before allowing a defendant to represent themselves at trial is meant to scare
defendants into obtaining counsel for trial. While the trial itself still takes time
therefore adequately conveys to the defendant both the utility of counsel and the dangers of
self-representation.” 541 U.S. at 90 (citing Brief for Petitioner at 20); Tr. of Oral Arg. 3.
While Tovar does not go so far as to agree that counsel‟s role in a plea proceeding is
merely to challenge the charge or sentence, the Court implies that in a “case so
straightforward,” 541 U.S. at 93, counsel would have little role preceding—or during—the
plea.
In contrast, the Court has not hesitated to substantiate the role of counsel in cases
that proceed to trial. While Powell v. Alabama, 287 U.S. 45 (1932), provides an early
example, Faretta v. California enunciates the point more recently. 422 U.S. 806, 835
(1975) (clarifying that in order to “competently and intelligently . . . choose selfrepresentation,” the defendant should be “made aware of the dangers and disadvantages of
self-representation, so that the record will establish that „he knows what he is doing and his
choice is made with eyes open.‟”). Tovar thus aligns a guilty plea proceeding closer to
Patterson-like post-indictment questioning than to a Faretta-like trial. In the process of
making these alignments, Tovar goes so far as to say that even if the defendant waiving
counsel at his plea lacks “full and complete appreciation of all of the consequences flowing
from his waiver,” 541 U.S. at 92 (citing Patterson, 487 U.S. at 294), the waiver can still
satisfy the constitutional minimum.
208
See Faretta, 422 U.S. at 835 (clarifying that in order to “competently and intelligently . .
. choose self-representation,” the defendant should be “made aware of the dangers and
disadvantages of self-representation, so that the record will establish that „he knows what
he is doing and his choice is made with eyes open.‟”).
209
See, e.g., Faretta v. California, 422 U.S. at 835.
210
541 U.S. at 93.
211
See, e.g., Chief Justice Thomas J. Moyer, Commission on the 21st Century Judiciary, 38
AKRON L. REV. 555, 558 (2005) (discussing report that noted, inter alia, “a trend towards
pro se litigation and its impact on the role of the trial judge”).

35

Innocence Unmodified

even when an attorney represents a defendant, it is arguably more judicially
efficient with an attorney at the helm than with a pro se defendant.212
In addition to discouraging defendants from representing themselves at
trial because of efficiency interests, the colloquy preceding a pro se trial is more
extensive because courts accord defendants the full safeguards of an unmodified
presumption of innocence during trials. The significance of the clipped colloquy at
pleas reveals the Court‟s willingness to devalue a pro se defendant‟s presumption
of unmodified innocence during the plea process. Because a person who is
pleading guilty effectively loses an unmodified presumption of innocence by virtue
of choosing to plead guilty, the Court is not concerned that the defendant knows he
may be overlooking a legal defense in pleading pro se.213
While saving time and money through judicial expediency is not an
inherently unsound goal, it becomes unsound when it compromises the Court‟s
ability to concomitantly safeguard individual rights, such as the presumption of
unmodified innocence. The Court‟s self-interest in maintaining judicial efficiency
trivializes counsel‟s role at a plea proceeding214 and devalues the presumption of
innocence, thereby conflicting with the Court‟s duty to safeguard a defendant‟s
constitutional right to due process.215
The Court‟s willingness to devalue the unmodified innocence of pro se
defendants pleading guilty may ultimately rest on a deeper assumption: the
assumption that guilty people plead guilty and that innocent people go to trial. If
this is indeed an undercurrent in the Court‟s rationale, a motivating force behind
the Tovar reasoning is that the rights afforded to defendants pleading guilty
without counsel do not have to be as stringently safeguarded as the rights afforded
to defendants representing themselves at trial, because the chance of making a
mistake—of taking an “actually” innocent person‟s freedom—is less likely to be at
issue if the person is already willing to admit to the facts surrounding the crime.
While such a risk may in fact be less likely, this reasoning is still flawed
because innocent people—in the strongest, unmodified sense of the word—do in
fact plead guilty.216 It is also flawed because even if a defendant who is pleading

212

See, e.g., Moyer, supra note 211, at 558.
541 U.S. at 94.
214
See, e.g., Brief of Amicus Curie National Association of Criminal Defense Lawyers,
Tover (No. 02-1541) (discussing role of attorney).
215
The Tovar Court disagreed that the Sixth Amendment requires a court to inform a pro se
defendant that an attorney may provide an independent opinion whether it is wise to plead
guilty or that without an attorney, the defendant risks overlooking a defense. Some may
assert that these admonitions were too specific and narrow to have had a chance of passing
constitutional muster. Perhaps if the admonitions had been framed in more Faretta-like
terms—such as employing the “dangers and disadvantages” of self-representation
language—the Court may have divided on Tovar rather than unanimously disposing of it.
216
See discussion supra, Introduction.
213

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Innocence Unmodified

guilty is not innocent, that defendant must still be presumed innocent until his plea
is accepted by the court.217
The Court‟s refusal to warn pro se defendants that they risk overlooking a
viable defense by proceeding without the aid of an attorney is driven by the
Court‟s interest in preserving judicial efficiency. But it also rests on the Court‟s
willingness to assume that a defendant who wants to plead guilty is no longer
entitled to an unmodified presumption of innocence, simply by virtue of the fact
that the person has announced the intent to plead guilty. Because district courts
find a factual basis for the plea in order to ensure the defendant is factually guilty,
the minimal admonishments courts give pro se defendants pleading guilty might be
enough to catch those defendants who are “actually” innocent, but they are not
enough to safeguard innocence unmodified.
By not requiring district courts to advise defendants that they risk
overlooking a viable defense by proceeding without the counsel, the Court signals
that it does not matter if a pro se defendant has viable legal claims that may
ultimately defeat the charges; all that matters is whether the person is “actually”
innocent. In so doing, the Court deprives pro se defendants pleading guilty of a
full presumption of innocence unmodified. Because the enforcement of the
presumption of innocence “lies at the foundation of the administration of our
criminal law,”218 the deprivation of the presumption of innocence unmodified at
pro se guilty pleas denies pro se defendants due process of law.219
Conclusion
This Article has argued that scholars, courts, and the media must reclaim
an understanding of innocence unmodified by terms such as “actual” and “legal” in
order to ensure that defendants who plead guilty receive due process of law—
whether an attorney represents them or whether they are pro se. But safeguarding
the constitutional rights of people who plead guilty or commit crimes is not the
only reason to reclaim a robust understanding of innocence. As Troy Davis‟s case
217

To this end, the National Association of Criminal Defense Lawyers filed an amicus
curiae brief on behalf of Tovar in which it explained the complex legal judgments involved
during this stage of representation. NACDL Brief at 11. In their brief, the NACDL
acknowledged that “[t]he plea decision appears deceptively simple.” The brief went on to
explain that “[i]n most cases, however, [the plea decision] involves, or should involve,
several judgments requiring legal expertise. What defenses are potentially available?
What evidence might be subject to suppression? What mental state is required and how
will the state prove it? How are the witnesses and circumstances of the case likely to be
viewed by the jury? What is the likely sentence under any applicable guidelines, and is
that sentence low enough to justify forgoing a defendant‟s right to trial? What are the
collateral consequences of conviction?” See also Cook, supra note 157.
218
156 U.S. at 453.
219
See supra note 207, discussing Powell v. Alabama, 287 U.S. 45, 67 (1932) (“[T]he right
involved is of such character that it cannot be denied without violating „those fundamental
principles of liberty and justice which lie at the base of all our civil and political
institutions.‟”).

37

Innocence Unmodified

reveals, reclaiming innocence has broader implications than protecting people who
do not have “actual” innocence claims. Because the Court has not yet recognized a
substantive freestanding innocence claim, the most effective way to assert an
“actual” innocence claim based on newly discovered evidence is to use it as a door
through which a court can reach otherwise defaulted constitutional claims.
“Actual” innocence is what allows a court to look at underlying constitutional
claims, and the robustness of these underlying constitutional claims could
ultimately amount to a wrongful conviction. In addition, the fact that the Court has
not yet decided whether a trial was constitutionally “full and fair” if it resulted in
the conviction of an “actually” innocent person is yet another reason to reclaim
innocence unmodified.
Finally, even if the Court were to recognize a freestanding “actual”
innocence claim, reclaiming innocence unmodified will remain critical to protect
the constitutional rights of all people, whether they were convicted through trial or
plea, whether they had an attorney or represented themselves, and whether they are
innocent or guilty. A robust understanding of the full breadth of innocence is
necessary to ensure that the Troy Davises of the world—just as the Felipe Tovars
of the world—receive justice. We must reclaim innocence unmodified to
safeguard the fundamental rights that protect us all.

38