Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice

58 Pages Posted: 15 Dec 2009 Last revised: 3 Dec 2010

See all articles by Robert P. Mosteller

Robert P. Mosteller

University of North Carolina School of Law


In this article I examine the importance of the role that defenders play in protecting the innocent to invigorate the drive for adequate indigent defense funding during a time of increased societal concern with unjust convictions. I also recognize the inherent dangers and difficulties in harnessing that societal concern.

In Part I, I argue that for many defendants, including the most problematic types as demonstrated by DNA exonerations, innocence is not actually knowable to anyone in the system, even defense attorneys. These problematic cases in which the defendants are in fact innocent do not generally present themselves as innocence cases but instead only suggest possible weakness in the prosecution’s evidence, and the defense usually only attempts to raise reasonable doubts in the jury’s mind. Tried by well by adequately funded defense counsel, a percentage of these cases will still result in erroneous convictions of the innocent, but fewer of them. Moreover, innocent defendants will have received all society can actually guarantee in a system where humans decision-makers deal with uncertainty, which is a fair proceeding.

In Part II, I examine a proposed partial solution to inadequate funding, which is a specific application of a rationing system, specifically examining a proposal that attempts to give priority to representing the likely innocent. I conclude that this proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, it could undermine the arguments for adequate defense funding by suggesting that the priority cases of the likely innocent can be defended well if defenders would simply focus their efforts on observable pretrial indicators.

In Part III, I highlight one of what I believe is one of the most realistic and workable proposals to improve indigent defense, which is the creation of a federally supported center to evaluate and finance improvements and reform in state indigent defense. This proposal would have significant impact, and it is politically viable. This reform effort would greatly benefit from the support of the innocence movement. I also address another recent proposal that supports the effort to improve indigent defense through federal support that goes awry with an apparent quid pro quo that would further restrict federal habeas. It promises to protect the innocent, but does so only for those rare cases where innocence is clear, and it would eliminate review of ineffective assistance of counsel and Brady claims, which present substantial reasons to doubt guilt when meritorious and constitute the best showing that innocent defendants can usually ever make.

In Part IV, I explore preliminary strategies for the use of innocence by those leading the battle for increased defense funding. The argument has its challenges and pitfalls, but it is substantially completely valid. Defender leadership must develop the supporting facts and examples and present them effectively.

Keywords: Innocence, Indigent Defense Funding, Criminal Justice, Defense Attorneys

Suggested Citation

Mosteller, Robert P., Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice. Missouri Law Review, Forthcoming, UNC Legal Studies Research Paper No. 1522052, Available at SSRN:

Robert P. Mosteller (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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