The "Who Cares if You're Innocent" Project on the Right

At the close of Nina Morrison’s confirmation hearing, Democratic Senator Sheldon Whitehouse of Rhode Island had a question. “Does ‘tough on crime’ include convicting the innocent?”

“No, Senator, it does not,” replied Morrison, who has been nominated for a judgeship on the U.S. District Court for the Eastern District of New York.

The rest of the hearing prior to Whitehouse’s query indicated otherwise. Morrison, who has dedicated her career to the Innocence Project, and helped free dozens of people who were wrongly convicted, found herself being blamed by Republican senators for a rise in crime that began when Donald Trump was still in office. The fact that the Innocence Project’s work is exonerating those who did not commit the crime they were convicted of didn’t matter.

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The 2019 case Garza v. Idaho, which involved a defendant whose attorney did not file an appeal despite his request, because the defendant had earlier signed a waiver agreeing not to appeal, offers an illustration of this position. In that case, a majority found that the defendant’s Sixth Amendment rights had been violated. Three justices—Clarence Thomas, Neil Gorsuch, and Samuel Alito—dissented, with Gorsuch joining part of Thomas’s dissent suggesting that the 1963 case Gideon v. Wainwright, which guaranteed a right to counsel for those who could not afford to pay, should be overturned. “The Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel,” Thomas complained, adding that “the right to counsel is not an assurance of an error-free trial or even a reliable result … Our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments.”

On the one hand, it is true that human fallibility means that a mistake might be made at trial that does not compromise the integrity of the entire process. But on the other hand, the idea that a “reliable result” in a criminal trial is less important than “the finality of criminal judgments” turns Thomas’s argument into a long-winded paraphrase of Stephen Colbert’s quip that “due process is just a process that you do.”

The core of this assertion is that at the time of the nation’s founding, lawyers were not as regularly a part of the process as they are now, and that the Sixth Amendment guarantees a right to pay an attorney to represent you, not to have one in the first place. Public defenders today are popularly understood as an essential part of the legal system, and the Gideon decision was unanimous, but the idea of a right to counsel was once incredibly unpopular, and remains so among some conservative elites. Not until 1932 did the Supreme Court begin interpreting the Sixth and Fourteenth Amendments as requiring states to provide defense counsel in cases involving the death penalty, and not until 1963, in Gideon, did the Court find a right to an attorney in other cases. Before then, as the Vanderbilt law professor Sara Mayeux writes in Free Justice, many attorneys thought that the idea of public defenders “smacked of communism and would lead to the socialization of the legal profession.”

Thomas’s lengthy explication of the history of the right to counsel begins with a recitation of English common law and then grows thin when he gets to 1932. That’s when the Supreme Court overturned the wrongful convictions of the nine Black “Scottsboro Boys,” who were falsely accused of raping two white women. The case, Powell v. Alabama, was the first to establish a right to counsel in death-penalty prosecutions. By the time of Gideon, the necessity of representation in criminal trials, given the evolution of the legal system, was clear to all of the justices, in part because what passed for trials in the Jim Crow South illustrated how the system worked in practice, and not just in the abstract. As Mayeux writes, both the evils of segregation and a Cold War–era politics that wanted to contrast American due process with the arbitrary nature of Soviet show trials created the political climate in which the public-defender system emerged.