The Innocence Project

November 26, 2018

BYU Law’s chapter of the American Constitution Society invited the Honorable Judge Phillip Pennypacker to speak on the Innocence Project. Judge Pennypacker’s comments were entitled, “Protecting the Innocent through Thoughtful Advocacy.”

Judge Pennypacker’s remarks offered an overview of what thoughtful advocacy means and things students and practitioners can focus on as they move forward in their careers. Judge Pennypacker said, “Advocacy that is thoughtful is going to make a difference in the process of guaranteeing rights to the innocent and rights to those who are guilty.”

Judge Pennypacker offered his insights on the need for careful advocacy. He said, “The state and federal trends toward guidelines for sentencing puts a huge advantage in the hands of the prosecution to resolve cases; it becomes more like risk analysis and deciding outcomes because you may face X amount of years versus if you take a deal you get this amount of years. And that process really does undercut the presumption of innocence.”

Judge Pennypacker added, “The other thing that happens—and it is much more dramatic in our state of California—is that there are huge financial aspects in the correctional process of our state. Nationally, we’re spending over $60 billion a year to incarcerate people. That is where the money that was used on better prosecution, investigations, and better defenses is placed.”

“What is this process of thoughtful advocacy?” Judge Pennypacker asked. “I want to suggest that it is a commitment to what you are doing, a curiosity and a creativity.”

Judge Pennypacker suggested that commitment, curiosity, and creativity are necessary for thoughtful advocacy. “What kind of lawyer do you want to be?” he said. “Do you want to be a lawyer who is satisfied doing a minimal job protecting the record and just doing what is necessary so that you’re not going to be found incompetent  but not having your heart in it? If your heart is not in this process, if you’re not committed, you’re going to have a problem.”

Regarding curiosity, Judge Pennypacker suggested, “When you start practice, you learn that the prosecution is to provide all evidence in a case. You need to understand that you’re not going to get all the evidence. You’ve got to be the question asker. You’ve got to go out and get every type of evidence and witness together.”

“One of the best things you can have as a lawyer is a group of stand-by lawyers you can default to when the going gets tough. These are people you can trust because they’re going to give you honest answers,” Judge Pennypacker stated. “Creativity is combining curiosity with believability.”

He added, “Trial work is a commitment to excellence in lifelong education and learning.”