March 25, 2010
Legal Department
So What If You Might Be Innocent?
I was reading Mark Bennett's account of the long and winding road that lead to the U.S. Supreme Court granting a stay of execution for Hank Skinner, a Texas man who's claiming that some untested DNA evidence might prove him innocent. It's a fascinating procedural tale, if you're into that sort of thing, which I'm not.
But one thing Bennett wrote really sticks out:
If the State is ordered to provide the evidence for testing and that ruling is upheld, the DNA gets tested. If it is exculpatory, it's not entirely clear what Skinner's remedy is. As I previously noted, factual innocence is not itself grounds for reversal of a death sentence. It has to be coupled with a constitutional violation like ineffective assistance of counsel (but here Skinner's trial counsel has blocked an IAC claim by saying that the decision not to seek testing of the DNA was a strategic one) or prosecutorial misconduct.
I've noticed this sort of thing before. Some new test becomes available, or the victim recants, or someone else makes a credible confession to the crime, and suddenly the lawyers are hard at work. But it's a funny kind of work...
You'd think the lawyers would just go into court and file some sort of "motion to examine new evidence" or a "writ of errorneous fact finding" or something like that, but there's no such thing. Only the original trial court can examine the facts of the case, and once it has determined that the facts point to guilt, no other court can change that determination. The only way to get the courts to examine new evidence or reconsider a factual decision is to find some legal basis for throwing out the entire original trial.
So the defense lawyers end up casting about for some legal hook that will get them a retrial. Maybe they accuse the defendant's previous lawyer of being legally ineffective, or maybe they accuse the prosecutor of misconduct. Quite often they try to find some ruling by the original trial judge which they can appeal. In any case, the legal basis for the appeal is essentially a pretext to get the factual issue back before the court.
This is an ridiculous situation. Our court system apparently has no simple, honest method of dealing with the possibility that a criminal court followed all the correct procedures and -- perhaps due to facts unavailable at the time -- still reached an erroneous conclusion.
So the lawyers end up hoping to find either an actual error by the original court (which has not already been denied during an earlier appeal) or at least something that looks enough like an error that a sympathetic judge who knows the real situation will throw out the original case. Or if that doesn't happen, maybe the governor will step in with a pardon and relieve the court of the embarassment of going through this charade.
I'm sure I'm oversimplifying, but isn't this an absurd way to run a justice system? Someone please correct me if I'm wrong, but if I'm convicted of murder, and one day later the victim turns up alive and well ("Huh? What? I was just in my mountain cabin writing my novel...") won't my lawyers be scrambling to find a legal basis for an appeal instead simply confronting the court with the fact that the crime never happened?
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Most of the DNA exonerees are getting out via habeas writs. I'm not a lawyer, but isn't that the equivalent of a "motion to examine new evidence"?