Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

mental capacity required by the law to commit the crime—then forcing the defendant to prove his own insanity (and thereby his innocence) is a direct violation of the presumption of innocence, which is supposed to permeate our entire justice system. While the Supreme Court in 1895 stated that in a federal prosecution the burden would be on the prosecution to prove that the defendant belongs “to a class capable of committing crime,”12 some courts still allow the presumption of sanity, and therefore guilt, to stand unless the defendant affirmatively proves his insanity and therefore his innocence.

Such conduct was upheld by the Supreme Court in 1952, in the case of Leland v. Oregon. The Court held that an Oregon law requiring that the defendant prove his insanity beyond a reasonable doubt was not a violation of the Fourteenth Amendment, even though it essentially required him to prove his innocence.13 This is especially shocking considering that, unlike other states that only required the defendant to prove this by a preponderance of the evidence, Oregon required proof beyond a reasonable doubt. This is the same burden, the same obligation of coming forward with evidence, the same level and quality of proof as the government must meet in its case-in-chief in order to obtain a conviction. This is also an utter rejection of the presumption of innocence.

What is most shocking about such a requirement is that it shifts the burden of proof from the prosecution to the defense. In every criminal trial, the prosecution has the burden of proving every element of the charged crime—every component of guilt—beyond a reasonable doubt. The defendant does not have to examine any witnesses or present any evidence. The defendant does not have any burden; he is not required to prove anything at all. This is the meaning of “innocent until proven guilty,” that the defendant is presumed innocent and the prosecution must prove to the jury that he is guilty beyond a reasonable doubt.

Therefore, when the courts enforce a requirement that the defendant prove his insanity, this means that they are presuming him sane, thereby also presuming an element of guilt. If the jury takes as a given any element of guilt, and the defendant needs to prove to the jury that that element is not so, that is a perversion of our system of justice. The courts should never sanction such a requirement. Yet some do, and the Supreme Court has allowed them that discretion. And still we believe that the presumption of innocence is holding strong?

Discarding Actual Innocence

Sadly, the Supreme Court has also held that once an innocent man is found guilty by a jury, he cannot appeal on the basis that he has proof of his actual innocence. The court held that the Due Process Clause did not require that “every conceivable step is taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”14 So while the basic premise of our system is preached to be that no innocent man be jailed, no matter how many guilty go free, apparently this does not apply when the cost of ensuring this gets too high.

The idea of a cost-benefit analysis applied to innocents in the justice system is not the most heartwarming of thoughts. Leonel Torres Herrera, who was convicted of killing a police officer and once convicted of that death, pled guilty to the death of another, is the example of where such a path will lead. After being sentenced to death, Herrera appealed based on “actual innocence.” In effect, he provided proof that he had not committed the crime, including the affidavits of a lawyer, a former classmate, and a former cellmate of his brother’s, all three of whom swore that Herrera’s brother had confessed to them of committing the crime. He also had a statement from his nephew attesting that he had witnessed his own father kill the police officers. This was the evidence that Herrera presented in order to argue that he should not be executed. None of the five people had reason to lie. Yet the Supreme Court decided that this was not important and that “actual innocence” was not a matter for appeal, since the defendant could instead work to get a pardon.

Imagine being jailed, about to be executed for a crime you did not commit, and having to depend on an elected official to take mercy on you, even when this will ensure that he is portrayed as “soft on crime.” This is what happened to Herrera. Though he appealed to the governor, he was denied and the heartless, lawless future President who denied an innocent man his life was then-Governor George W. Bush of Texas. Only four months after the Supreme Court ruled that actual innocence does not matter, Leonel Torres Herrera was executed. His last statement was, “I am innocent, innocent, innocent. Make no mistake about this; I owe society nothing. Continue the struggle for human rights, helping those who are innocent . . . I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”

How can we say that the idea that “it is better for guilty men to go free than for one innocent man to be punished” is still a mantra of our justice system, if a man who has definite proof of his innocence cannot be saved by the highest court in the land? The justices of the Supreme Court did not seem to have much of a problem permitting the execution of a man, even when confronted with proof of his actual innocence, justifying their actions by stating that the courts would be too busy if they were forced to review every case. But this is not every case: Herrera brought forward more than doubt about his guilt; he brought actual evidence of innocence. And if that is the case, how can anyone tell him that he deserves to die? Of course the court also noted that assuming