July 7, 2010
Legal Department
What To Do About Innocence?
There's been round-the-blawgosphere turmoil about Lee v. Lampert, in which the 9th Circuit basically said that the AEDPA's time limits for filing a habeas petition still apply even though pretty much everyone agrees that the defendant is actually innocent. That is, Lee is innocent, but he just didn't submit the paperwork on time. There's plenty of coverage by Gideon, C&F, Gamso, and Greenfield.
I think that unless the U.S. Supreme court overturns this ruling or the Governor steps in and moots the case with a pardon, this case is probably headed for some crazy legal shenanigans, as the defense tries to find a judge who will go along with some sort of pretextual constitutional issue that will allow the facts to be reconsidered so that justice can be done.
This tends to support my observation that the machinery of justice is missing an important part:
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.
The closest we come to such a method is probably a habeas petition, which is going to be a problem...
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A friend of mine sent me this rebuttal of sorts to the way this is being covered in the blogs you link to. http://www.ordinary-gentlemen.com/2010/07/in-which-i-disagree-with-radley-balko/
This is not a rebuttal, it is repeat of what the 9th circuit is saying. How does one actually say an actual innocence exception would be a disaster? But for the grace of God go each and every one of us. You think it can't happen to you, but when it does, where will you turn? I'm sure they will all think an actual innocence exception would be a divinely wonderful thing.
What Mirriam said.
I understand why there's an administrative need for finality, and I understand that convicted criminals would file frivolous appeals that would burden the court system, and I understand the need to follow rules and procedures...but, man, we're talking about someone who seems to be innocent here. It's got to be wrong to refuse to even look at the evidence, doesn't it?
"It's got to be wrong to refuse to even look at the evidence, doesn't it?"
But that's just the issue here - when should a court be willing to take another look at the evidence in a habeas petition? Just the act of taking another look at the evidence requires a substantial investment of resources. I'm increasingly convinced that the 9th Circuit erred in making its decision retroactive (although I'm not totally sold), but I don't see much of an alternative to what they did in terms of proactively setting forth the circumstances under which it will be willing to take another look at the evidence.
Regarding retroactivity, though, an important thing to keep in mind is that we're not talking about after-acquired evidence of innocence but instead evidence that the prisoner conceded was available all along. We're also talking about a determination of innocence well over a decade after the original trial, without (AFAIK) video thereof, and where the purportedly exculpatory evidence merely bolsters evidence that was presented at trial, rather than something like DNA evidence. That leaves an awful lot of inferences that have to be made - more than a decade after the original trial, no less - to reach the conclusion that, had the additional evidence been introduced, it is more likely than not that no reasonable juror would have voted to convict (being the standard for a finding of "actual innocence"). As I say above, I'm largely persuaded that the 9th Circuit shouldn't have applied its decision retroactively against this prisoner; however, I also don't think it's wise to fall into the trap of treating the district court's determination on the merits as unassailable proof of innocence.
Just the act of taking another look at the evidence requires a substantial investment of resources.
I'm guessing far fewer resources than expended keeping the person in the system.
I'm not an attorney, so it was a real shock to learn that 'Due Process' seems to be more important than justice, i.e. actually getting the decision correct. It's difficult to accept that innocent people can be punished and have virtually no recourse if the court deems that the 'rules have been followed'. It's a tough one for us civilians to digest!