When Procedure Must Matter Over Substance
As anyone who has read me the last 4 years on civil liberties issues can attest, I have a passion for the protection of the rights of the accused. In that vein, no one has done more to advance those protections in recent memory than Radley Balko.
Unfortunately, I think he’s barking up the wrong tree on this one. He writes:
A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected an Oregon man’s petition for habeas corpus relief (PDF). This despite acknowledging that the man has established actual innocence for the crimes for which he’s being imprisoned (sexual abuse and sodomy of a four-year-old). The reason: He was late filing his petition. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.
New York criminal defense attorney Scott Greenfield comments:
“…in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth. They don’t care. They just don’t care.”
Unfortunately, this both misstates the facts involved in this case and, in so doing, misses why adherence to the statute of limitations for habeas petitions is particularly necessary.
First, the factual misstatement – despite the suggestion above, this was not a case where the “information or evidence doesn’t manage to come into [the defendant’s] hands until more than a year after” the final denial of his appeal by the state courts. To the contrary, the basis for this defendant’s habeas petition was “ineffective assistance of counsel regarding the initial exclusion of evidence concerning another suspect, the appeal of the same issue, the failure to call an expert witness on the reliability of child testimony, and the calling of witnesses harmful to the defense.” (My emphasis).
In other words, the evidentiary basis for the defendant’s petition was entirely evidence of which the defendant was aware (or should have been aware) from the beginning. Indeed, the statute at issue (28 U.S.C. 2244(d)(1[/efn_note] contains an exception for after-acquired evidence, but the defendant himself apparently conceded that he had not acquired new evidence and the court’s decision does not affect that exception.
Nor, pace Balko, did the 9th Circuit make a finding that the Defendant was, in fact, innocent. Instead, it was presented with facts in which the district court ultimately found it “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” As the concurrence points out, there were strong reasons to question the district court’s conclusion even on this front, and the Defendant had already failed to convince three state courts that he received ineffective assistance of counsel preventing him from introducing exculpatory evidence.
These factual issues are critical to understanding why the 9th Circuit’s ruling was correct, regardless of whether the Defendant is actually guilty. Although it’s true that the one-year statute of limitations for filing a federal habeas petition is more or less arbitrary, in the absence of extenuating circumstances such as after-acquired evidence, there is a real need for a deadline of some sort for the filing of such petitions – otherwise, a prisoner could simply use habeas petitions as a way of gaming the system, using them to tie up the courts and prison administration even more than is already done or using them to earn a new trial after key witnesses against them have died or evidence against them is no longer available for some other reason.
Allowing an “actual innocence” exception to the statute of limitations would, in effect, render the statute of limitations meaningless. All that would be necessary to file a habeas petition would be an allegation that certain evidence presented at trial (or that could have been presented at trial) is exculpatory. Once such an allegation is made, the prisoner would be able to proceed with “the submission of exhibits, oral argument, evidentiary hearings, and [to obtain] numerous rulings,” essentially obtaining a mini re-trial in federal court of his state conviction. As the 9th Circuit pointed out, that is precisely what happened here. This is perfectly acceptable where a prisoner is able to make a credible allegation that he did not possess the exculpatory evidence until after his conviction was final (and could not have obtained it earlier even with due diligence), and the exception for after-acquired evidence exists for that reason.
But it is not acceptable where the allegedly exculpatory evidence was available to the defendant all along but he chose not to seek a court’s review until after the expiration of the statute of limitations. In such circumstances, there needs to be a strong excuse for the delay, and simply claiming actual innocence, without more, doesn’t provide such an excuse. To the contrary, one would expect that a prisoner with a credible claim of actual innocence would make sure to file a federal habeas petition particularly quickly.
The courts cannot and should not be expected to expend tremendous resources to conduct a mini-trial every time a convicted prisoner claims that they are actually innocent after having had the opportunity for an appeal and a substantial amount of time thereafter to file a habeas petition separately challenging the conviction.
Finally, it must be noted that the issue for the 9th Circuit in this case was not whether an innocent person should be permitted to rot in jail if he fails to abide by a statute of limitations. Instead, the question was to determine the circumstances under which a prisoner may present evidence of actual innocence in a habeas petition. It is not unreasonable to provide a prisoner with a full year to do so and an infinite amount of time to do so if that evidence was after-acquired.
While the district court judge in this case ultimately determined that the evidence put forth by the prisoner was likely sufficient to make his conviction unreasonable, the question for the 9th Circuit was whether the district court should have heard that evidence in the first place. As discussed above, there is a very real need for limitations on when a prisoner should be entitled to a full habeas hearing. Unfortunately, because of the way appeals work, the main circumstance in which the 9th Circuit was going to be able to establish those limitations was where the district court ultimately granted the habeas petition by determining that a prisoner had established something approaching “actual innocence.” An appeal by a prisoner will obviously not call into question whether the habeas hearing should have been granted, but rather whether the judge was correct in refusing to grant the writ.
If this particular prisoner is, in fact, innocent (and I grant that he may well be), then his gripe is not with the 9th Circuit but rather with the prosecution and the State of Oregon that has failed to pardon him and/or has pursued and protected the conviction in spite of his innocence. His failure to comply with reasonable – and essential – procedural requirements, however, is his own responsibility.
Shorter Mark Thompson:
The guy might be innocent, but who cares! Procedure must be upheld, and you can’t make an omllet without falsely imprisoning a few niggers.Report
@JakeCollins,
I would like to dissociate myself from this reprehensible comment.Report
@JakeCollins, Thank you for extremely valuable contribution.Report
Longer Jake Collins: I am far more interested in smug superiority than I am in actually reading – much less considering – what others have to say if it might make my simplistic, black-and-white world just a little too complicated.Report
It seems to me that there are at least two mechanisms to catch mistakes of this type, one current, and one relatively defunct.
The current one, of course, is the executive pardon.
The relatively defunct one, though very important in the history of the common law, is an appeal to a court at equity, which back in the good old days was charged with correcting any gross or obvious mistakes that came of closely abiding by legal procedure.
No society is simple or predictable enough that the letter of the written law can always, everywhere contain it, and that the mechanical following of procedure will always do justice. A couple of well-placed institutions that can grant exceptions — generally in the direction of clemency, and not in the direction of greater punishment — seem like a prudent concession to human fallibility. Especially here.Report
@Jason Kuznicki, I’m not sure that the abolition of courts of equity has had that much impact (though, as someone who practices in one of the few remaining places where they exist, I’m willing to be convinced). But even then, a court of equity is still going to have limited resources and it will need to formulate some sort of rule to triage cases and separate the cases worth hearing on the merits from the ones not worth hearing on the merits. Statutes of limitations still apply in courts of equity for a reason. And the greater the backlog, the tougher that rule is going to have to be.
Honestly, I think the rule we have is probably close to the best we can do – the after-acquired evidence exception gives a reasonable opportunity to collaterally attack a judgment ad infinitum, and a year is a reasonable amount of time for someone with a legitimate claim of actual innocence to come forward with a habeas petition, although I would probably support increasing it by a year or two more. I’d also be very open to liberalizing the after-acquired evidence rule (although I don’t know how much room there is to do that), although that was not an issue in this case.
The big problem I have here is that you’ve got a defendant who essentially acknowledges that he possessed or had ready access to the supposedly exculpatory evidence, but then waited a year and a half to try to get that evidence before a judge – and then only before a state judge. After that attempt in state court gets a final denial – and despite being represented by counsel at this point, so far as I can tell – he not only doesn’t appeal the state court decision to the 9th Circuit, but then waits an additional 6 months before filing a separate habeas petition in federal court but, despite the statute of limitations, is nonetheless entitled to a comprehensive hearing – more than a decade after his actual trial – simply because he put in his petition that he was innocent.
“No society is simple or predictable enough that the letter of the written law can always, everywhere contain it, and that the mechanical following of procedure will always do justice. A couple of well-placed institutions that can grant exceptions — generally in the direction of clemency, and not in the direction of greater punishment — seem like a prudent concession to human fallibility. Especially here.”
Except for those last two words, I fully agree with this, and if the exculpatory evidence is indeed as strong as the district court concluded (and I have no basis to think one way or the other on that), then I also fully agree with the last two words. The trouble is, as I say above, that even institutions set up for leniency will have limited resources and will ultimately need to establish necessarily imperfect rules for determining when to act.
That said, the main institution we have for extraprocedural clemency – the pardon – is restricted by means that have nothing to do with limited resources, to wit: “tough on crime” politics. There are absolutely things that can be done to correct that problem.Report
This is a good post, and I largely agree with it. Procedure is meaningful and should not be discarded. An “innocence exception” to the habeas statute of limitations would be a disaster, as you explain, and there should be a statute of limitations.
That said, given the district court found what it found–that this guy was wrongfully convicted–wouldn’t the right thing to do to somehow not apply that holding retrospectively? In your post you make it sound like the district court really shouldn’t have found that, or that such a finding was questionable. Hypothetically though, pretend it wasn’t. Pretend he was railroaded by the system. If that were the case, would this be the right outcome for the 9th Circuit? Did they simply have ‘no choice’?Report
@Wilson, Thank you for your thoughts. Re: retroactivity – I thought about that after I posted this. That is definitely one element of the decision that bugs me, although it should be noted that the concurring opinion casts plenty of doubt on the basis for the district court’s decision on the merits.
But hypothetically speaking, if we were talking about a situation where something blatantly exculpatory was kept from the jury due to an idiotic attorney, and for whatever reason the appeals went nowhere and the prisoner missed the deadline for a habeas review….it would be really tough to justify applying the decision retroactively.Report
This is one of the things that drives me crazy about the “justice” system.
The point of the justice system is to right wrongs.
Person A gets shot by Person B.
Law enforcement, ideally, moves from a position where they know only that Person A got shot to a position where they have proof that Person B did it. Person B then goes to jail.
All is right in the world.
The problem comes when the prosecutors and judges and DAs and what have you take, instead, the attitude that getting the conviction is the most important thing.
Let’s say that Person C gets arrested instead of Person B. Taken to trial. Convicted. All too often, when prosecutors find out that they may have arrested the wrong guy or, in extreme cases, that they withheld exculpatory evidence (!), I ask “WHAT IS THE FRICKING POINT?”
We want to take the murderer off the street, yes? Make sure he never kills anybody else, right?
Well, if Person B did it and you arrested Person C and are arguing that Person C’s innocence isn’t necessarily germane to his continuing incarceration, I’d have to ask:
WHAT ABOUT PERSON B???
WHY IN THE HELL DO WE HAVE A JUSTICE SYSTEM???Report
@Jaybird, That issue is worth about a billion posts and there’s not many reforms to fight prosecutorial misconduct that I wouldn’t sign on to. Alas, so much of it is cultural – how often, when someone gets acquitted or successfully blocks the admission of incriminating evidence, do we hear the popular refrain about letting criminals walk on technicalities? Culturally we seem to think that anyone who is arrested is guilty until proven otherwise (and even then, they’re still probably guilty). Heck, I’ve even seen it argued quite often that virtually anyone who gets arrested was probably asking for it, guilty of the charged offense or not.Report
@Mark Thompson, that’s probably the attitude that they take. Maybe Person C didn’t kill person A.
But you know what? He probably shot somebody else a while back and we overlooked it. Well, we got him now.
Don’t worry about Person B. We’ll pick him up next week in the wake of some other fool getting shot.
All of that makes me say “I wonder if we’d be substantially worse off if we didn’t do the law enforcement thing but instead had a really expansive reading of the 2nd and gun vending machines on every other corner.”Report
@Jaybird, There are plenty of times when I wonder the same thing. Then I decide that the one thing worse than the authorities drawing dubious conclusions about who is and is not worthy of locking up and/or shooting is 300 million plus Americans (of whom a majority seem to take the aforementioned attitude) drawing dubious conclusions about who is and is not worth shooting.
I’ve increasingly come to the conclusion that, sympathetic as I am to anarchists, anarchism is ultimately indistinguishable from a society where everything is in a black market.Report
@Jaybird, One more thing – in the one criminal case I’ve ever had, “probably guilty of something else” was pretty much exactly the attitude the prosecutor’s office seemed to take. Not explicitly, of course. More in the vein of “We have nothing to convict your client on this charge, but you should try to get your client to take the deal anyway.” Never mind that my client was clearly, blatantly innocent of the charge, while the evidence they had showed that the CW was clearly, blatantly guilty of the charge 1000 times over.Report
@Mark Thompson, as a society, we seem to have abandoned the idea that it is better that 10 criminals go free than 1 innocent person goes to jail.
We, as a society, now ask “innocent of what?”
We sow the wind.Report
@Jaybird,
You’re less cynical than I am. I think it’s less “C is probably guilty of something” and more “I get promotions based on my conviction rate.”Report
@Jaybird,
I no doe-eyed defender of cop behavior but I am fairly certain I don’t want that scenario.
I’d rather deal with our system and its many warts than try my luck with the local warlord.Report
@ThatPirateGuy, if Mike Schilling is right and we are dealing with folks who say “I get promotions based on my conviction rate”, then I submit to you that you are, in fact, trying your luck with the local warlord.Report
@Jaybird,
I’d still rather face the prosecutor as he has to convince 12 people to do me in. The warlord only has to convince one.
Even worse replacing a warlord is significantly more difficult and much more dangerous to everyone involved.
I’m willing to hear ideas for improvement but I like non-warlord based society. It makes me happy that I don’t have to worry about shooting someone or getting shot on a daily basis.
Note: I live in memphis tn. http://www.commercialappeal.com/news/2007/sep/27/memphis-leads-us-in-violent-crime/Report
@ThatPirateGuy, “We have nothing to convict your client on this charge, but you should try to get your client to take the deal anyway.”Report
@Jaybird,
Your right it is damned awful but I can say no to a plea deal, I can’t say no to a bullet.Report
@Jaybird,
To expand, you and I feel safe to criticize this prosecutor. We might even get involved in a campaign to get him fired. If this was a honest to goodness warlord then we would both have reason to fear what he or his goons might do to us or our loved ones.
I know your probably engaged in some hyperbole but I don’t want people to forget the very real benefits we get from actually having a government system to handle this. It has a real and frankly too large ugly side but it has benefits too.Report
@Jaybird, Just to add some context to that quote (which was a paraphrase, not a direct quote from the ADA), my client refused the deal (with my support, of course) and the judge (it was a bench trial) threw the case out at the close of the prosecution’s case and then proceeded to read the trial prosecutor (who, FWIW, was not responsible for pressing the case that far) the riot act.Report
I think the problem comes long before any issue of procedural law. What do you think prison is actually for? I’m having trouble seeing the suitability of prison for an innocent person, it’s really that simple. In fact the only procedural question that comes to mind for me is why there isn’t a way to get out of jail when it turns out you didn’t actually do it.Report
@Stephen Rice, Prison is not suitable for an innocent person, period, and if the additional evidence is as strong as the district court seemed to think, then this man should be pardoned, stat. The question for the courts, though, is once convicted, under what circumstances do you get the opportunity to – in effect – retry your case and thereby have a chance to persuade someone that you are, in fact, innocent.Report