Beginnings of the 'Innocence Revolution'

My generation has lived through two revolutions in criminal law: the Procedure Revolution and the Innocence Revolution. Both revolutions are superbly documented in two new books: Jim Newton's ''Justice for All: Earl Warren and the Nation He Made'' (Riverhead, 2006) and John Grisham's ''The Innocent Man'' (Doubleday, 2006).

The Innocence Revolution is the subject of a new symposium in the Wisconsin Law Review that is focused on one concept: ''the acknowledgment that we convict innocent people.'' Richard A. Rosen, Reflections on Innocence, 2006 Wisconsin Law Review 237. This realization took some lawyers and judges by surprise. As recently as 1982, Alan Dershowitz wrote that ''almost all criminal defendants … are factually guilty of the crimes they have been charged with. The criminal lawyer's job, for the most part, is to represent the guilty.'' Alan Dershowitz, The Best Defense, 117-8 (1982).

Yet developments during the last two decades have challenged this assumption. We have witnessed an interdisciplinary explosion — of work in DNA, of criticism of eyewitness testimony, of the debunking of ''junk science,'' of the realizations that the innocent sometimes ''confess'' and that eyewitnesses are sometimes dead wrong — that has shaken the faith of even the staunchest prosecutor. Since 1992, the work of the Innocence Project run by Barry Scheck and Peter Neufeld has resulted in the exoneration of 187 wrongfully convicted people. See The Innocence Project, www.innocenceproject.org.

A case study of a wrongful conviction is the subject of John Grisham's first work of nonfiction, ''The Innocent Man'' (2006). Grisham relates the story of Ron Williamson, a baseball player talented enough to have played for years in the Oakland A's minor league organization. Williamson served 11 years on Oklahoma's Death Row for a murder he did not commit. What makes the Williamson case so compelling is that it brings together so many of the strands that created the Innocence Revolution in America. The junk science (here ''hair analysis''), the jailhouse snitches, the false confessions, the prosecutorial tunnel-vision, the defense attorney who believes that clients are ''innocent until proven broke'' — it's all here in chilling detail.

The book also includes a disturbing vignette that provides an ironic answer to the question of why an innocent person would ever confess. Grisham describes a suspect who, after hours of brow-beating, was willing to give a phony ''dream'' confession that was used to convict him of a murder he did not commit. When asked why he did it, he said he had no fear because ''The truth would quickly be discovered.… Good police work [would] find the truth.''

The Grisham book immediately shot to No. 1 on the New York Times nonfiction Best Seller list. Its popular success is an encouraging sign that members of the general public — who are also potential jurors — are becoming aware of some troubling realities of the criminal justice system.

What started this intense national interest in criminal law? You could argue that it began a little over a half-century ago with one event: Earl Warren's becoming the fourteenth Chief Justice of the United States.

In certain respects, Warren resembled another twentieth-century Chief Justice — Charles Evans Hughes. Like Hughes, he had been a governor of a large state (Hughes in New York, Warren in California). Like Hughes, he had been on a losing Republican national republican ticket (Hughes for President in 1916, Warren for Vice-President in 1948). And their political skills aided both in presiding over courts filled with strong justices of wildly divergent ideologies.

What made Warren unique was his strong background in criminal law. Most of his career as a practicing lawyer was spent in Oakland as district attorney of Alameda County. And his strong views on prosecutorial integrity suggest one reason he became so interested in the rights of criminal defendants.

Interestingly, it was a relatively obscure case from 1954 that may have fueled Warren's passion for criminal justice reform.

Frederick Irvine was a gambler known to the Long Beach police. Irvine v California, 347 U.S. 128 (1954). The police made four warrantless break-ins at his house. They installed hidden microphones throughout the home, including his bedroom. They eavesdropped for over a month and accumulated evidence that he was a bookmaker. He was then charged and convicted under California state law.

Since 1949, the U.S. Supreme Court had held that the Fourth Amendment applied against individual states, but, unlike the federal system, states were free to reject the exclusionary rule as the remedy for violations. Wolf v Colorado, 338 U.S. 25 (1949). The Irvine plurality opinion (written by Justice Robert Jackson and joined by Warren) was appalled by the behavior of the Long Beach police. The plurality bluntly stated that ''Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated … the Fourth Amendment.'' Nevertheless, it accepted the fact that California courts were within their rights in not using the exclusionary rule. Additionally, the plurality refused to exclude the evidence under the Fourteenth Amendment's Due Process Clause because the police behavior did not quite reach the level of the warrantless stomach-pumping in Rochinv California, 342 U.S. 165 (1952). Reluctantly, the court affirmed Irvine's conviction.

Yet Jackson and Warren still sought a remedy. These two justices standing alone suggested that the Long Beach police had violated federal criminal law by intentionally flouting Irvine's constitutional rights. Thus, they directed the Supreme Court Clerk to forward a copy of the opinion to the U.S. Attorney General for criminal prosecution.

If you believe this suggestion carried all the sting of a warning by a referee on TV wrestling, you are right. The Eisenhower Department of Justice and J. Edgar Hoover's FBI had no interest in pursuing a prosecution against municipal police.

And Warren neither forgave nor forgot. He later called Irvine his worst mistake on the Supreme Court. And the lesson he learned was that the court could not rely on the other branches of government to enforce the rights of criminal defendants.

Thus, seven years later the court reversed Wolf and made the exclusionary rule the constitutional remedy for state, as well as federal, violations of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). In quick order the court extended the right to counsel to state defendants (Gideon v Wainwright, 372 U.S. 335 (1963)); established warnings for suspects in custodial interrogation ( Miranda v Arizona, 384 U.S. 439 (1966)); and extended Fourth Amendment protection to expectations of privacy, rather than merely the boundaries of property (Katz v. United States, 389 U.S. 347 (1967)).

Newton makes no argument that Warren was a legal scholar. Instead, Newton says that the best description of Warren was someone, consistent with his political background, who was interested in ''nontechnical justice.'' More interested in ends than means, he skillfully navigated between the legal Scylla, composed of justices such as Felix Frankfurter, John Marshall Harlan, and Robert H. Jackson, and the Charybdis of William O. Douglas and William J. Brennan.

A former clerk of Warren's makes the most astute comment in the book. He said that no Supreme Court could function with nine Earl Warrens; it would be too interested in individual justice to the detriment of broader issues involving the structure of law. But he also said that no Supreme Court should be without at least one Earl Warren: Someone on the court ''needs to look after the law … to see not only that it is faithful to its principles but also that it is effective in action, that it serves society and does not merely bind it, that it delivers not just abstract justice but actual fairness.''

The book also reminds us of the extraordinarily diverse backgrounds of the justices who made up the Warren Court. A significant number had no prior federal judicial experience. Some came from the executive branch (Justices White, Goldberg, and Douglas); some from the legislative (Justices Black and Minton); one straight from teaching at Harvard Law School (Justice Frankfurter); one was the mayor of a large city (Justice Burton); and one came directly from private practice (Justice Fortas).

Compare this to the current Supreme Court. For the first time in history, each justice has come to the Court from exactly the same job: a judgeship on the U.S. Court of Appeals. Moreover, with the retirement of Justice O'Connor we now have a court without a single justice who has ever held an elective office of any kind, state or federal.

The current court does not lack professionalism, but it certainly lacks heterogeneity.

In the final analysis, these two books remind us how fortunate veteran criminal lawyers are to have experienced two such profound revolutions during their professional lives.