Wednesday, August 26, 2009

What if the Evidence of Actual Innocence isn’t New?

In my latest FindLaw column (here), I ask whether the Supreme Court’s order in the Troy Davis case recognizes a constitutional right of an innocent person---whose trial was not infected by a constitutional error---not to be executed. My conclusion: Maybe, depending on what the Court does if and when the case comes back. Here I’ll address an issue I don’t cover in the column: Why, exactly, does the Supreme Court’s order of an evidentiary hearing focus on “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence?”

First, we need to understand what even counts as new evidence. In Davis, the core argument is that the government’s case relied on witnesses who, under pressure from the police and prosecutors, said that they saw Davis commit the murder but in fact did not. Now, in some sense that evidence could have been obtained at the time of Davis’s trial: The witnesses could have said at that time that they were lying. But presumably the fact that the witnesses were lying about what they saw (or didn’t see) was not the sort of fact that Davis or his lawyers could have reasonably uncovered at the time of trial. Justice Scalia says in dissent that the evidence Davis is proffering is not in fact new, but even he doesn’t appear to think that it was available at TRIAL. He means it’s not new in the sense that it was previously offered as a ground for post-conviction relief. (It was not, however, evaluated by a judge hearing live testimony.) And Justice Stevens, and presumably the Court as a whole, reject even the narrower characterization of the evidence as nothing new.

Second, there is a peculiarity in the wording of the Supreme Court’s order. It says that the district judge should conduct a hearing to determine whether the new evidence itself establishes Davis’s innocence. The most straightforward reading of that language would suggest that the new evidence, STANDING ALONE, must establish innocence. That can’t be what the Court means, or at least I HOPE that’s not what the Court means. After all, in a typical case, the new evidence will need to be weighed along with the evidence that was produced at trial.

Here's a somewhat silly example: Suppose that at trial, defendant says he couldn't have committed the murder because he has an alibi placing him thousands of miles away. However, eyewitnesses and DNA evidence place the defendant at the crime scene, and the alibi is the defendant's girlfriend, who could be disbelieved as biased. Years later, it is discovered that the defendant has an identical twin (from whom he was separated at birth and whose existence was unknown to him). The twin, it turns out, has a long rap sheet. Does the new evidence--of the twin's existence--by itself establish the defendant's innocence? No, but in combination with the defendant's alibi evidence, it should. Accordingly, I think the order in Davis is best read to permit this sort of combination of the new evidence with the trial evidence.

Third, and finally, suppose that the evidence of innocence COULD have been obtained at the time of the trial, but simply WASN'T obtained then. Can the state execute an innocent person then? Once again, I sure hope not, but I think it will depend on whether the failure to obtain the evidence of innocence for trial was due to ineffective assistance of counsel. If such neglect was ineffective assistance, then the prisoner has a valid constitutional claim. Prima facie, he may be barred by AEDPA from presenting that evidence because his petition is successive or the claim has been procedurally defaulted, but a showing of "actual innocence" lifts those bars. So, if the evidence COULD have been obtained at trial but wasn't, the prisoner can use his innocence evidence to get his ineffectiveness claim heard; while if the evidence COULD NOT have been obtained at trial, then the innocence evidence can be presented as a freestanding innocence claim under Herrera and now Davis.

At least that's how it ought to work. There remains the macabre possibility that evidence COULD have been obtained at trial, and so there is no Davis/Herrera claim, but that the failure to obtain the evidence at trial was not so egregious as to rise to the level of ineffective assistance of counsel. If there is any room between the two standards, then the law would allow the execution of a certainly innocent person. I very much doubt that there are 5 votes for THAT proposition, at least once Justice Sotomayor starts participating. Stay tuned!

Posted by Mike Dorf

21 comments:

Paul Scott said...

How important is death?

If this case were in California and the claim was actual innocence bars a sentence of life in prison without the possibility of parole, does that change your view on the case?

Can the Governor of GA end the case by commuting Davis' sentence from death to life w/o parole?

If the District Court finds he is innocent, what is the appropriate order? Release or permanent stay of execution?

Richard Potter said...

As a lawyer of some 40+ years' standing, I very much enjoyed the complexity and the flow of your analysis but, as a Canadian, I also marvel at the massive expenditure of time and effort devoted to these questions in a jurisdiction that retains capital punishment. Perhaps the strongest vindication for our having abolished the death penalty decades ago is the plethora of wrongful conviction cases that have emerged, thanks in part to DNA analysis. While I understand intellectually the argument of the minority in the USSC case, I find it hard to express how disgusting I also find it.

Neil H. Buchanan said...

Richard Potter's comments are eloquent and, in my opinion, dispositive.

egarber said...

Referring to your article, it seems absurd that any reading of the bill of rights could possibly conclude that actual innocence is not a substantive defense against a death sentence. To do so is to put procedure and form over principle and substance.

So it seems to me the court should assess this issue directly against the constitution's substantive (and supreme) guarantees -- vs. getting caught up in a battle over statutory law. I suppose, given AEDPA, that this woould also implicate the question of whether Congress can constitutionally control habeas jurisdiction, but that might just mean that the two (actual innocence and court independence) are related in this case.

As an aside, is it not possible that the AEDPA's "clearly established federal law" is time in-sensitive? In other words, if the law only means past constitutional rulings, is that not an example of Congress essentially trumping future judiciary findings in favor of individual rights? Why can't the court say, "ok, we're clearly establishing it right now, because it's our call"?

This again brings me back to the question of what exactly is inherent (beyond the reach of Congress) within habeas. As always, I may be misreading something.

Thanks for giving me another headache :)

egarber said...

I think you answer part of my question here:

"He also proposes that if the AEDPA limits apply to bar proof that a person sentenced to death is actually innocent, then those limits are themselves unconstitutional--at least in cases in which the state courts are unable or unwilling to hear new evidence of innocence. Although Justice Stevens does not explain what constitutional provision would be violated, there are two likely candidates.

One possibility is the Due Process Clause of the Fourteenth Amendment. Justice Stevens (and the Court) might be suggesting that it violates due process to deny an evidentiary hearing to a condemned prisoner who, if given such a hearing, could demonstrate his innocence."

Paul Scott said...

Being very clear that I am categorically against the Death Penalty - even for the fictional case where guilt is 100% certain - I would still ask Mike and now Richard, Neil and egarber - how important is death to your reasoning?

How would you answer the questions I asked in my first post?

egarber said...

Paul, on the first question (if I understand what you mean), I *think* I'm prepared to say that actual innocence should be a defense against any criminal sentence - as a substantive constitutional protection. After all, the BoR exists to protect life, liberty and property, not just "life."

It needs to be defined narrowly enough so the floodgates don't open, but I think that's doable within the framework of habeas / due process.

Michael C. Dorf said...

Paul raises an important question that we might think is the trailing edge of the double-edged sword of the Supreme Court's "death is different" jurisprudence. It surely must be a constitutional violation to imprison an innocent person for even 10 minutes, much less life without parole. So, would a holding that it's never too late for a truly persuasive showing of innocence to vitiate a death sentence imply the same for a prison sentence? As a prediction, I'll say no. (A related issue is before the Supreme Court this Term. Having held it unconstitutional to execute a person for a crime committed as a juvenile, the Court will decide whether the prohibition applies to a juvenile sentenced to life without parole for a non-capital offense. Sherry addressed this in her column last week, at
http://tinyurl.com/n4eg3f ).

As for Richard Potter's comment, I would agree. However, I would note that death penalty proponents would say that the complexity arises from the squeamishness of us anti's. If we were to just permit swift executions after a single appeal, the system would not use so many resources or take so long. I take it Mr. Potter's response (and my own) is that without the additional procedures, swift justice would not be justice at all, as it would result in an unacceptably high number of wrongful executions.

dgipson said...
This comment has been removed by the author.
dgipson said...

Would it not be cruel and unusual punishment to execute an innocent man, to put a person through the terror of execution when that person knows that they are innocent and undeserving of execution?

Or, in other words, isn't execution an excessive punishment for an innocent person?

dgipson said...

In fact, wouldn't any punishment of an innocent person be excessive?

George Lowrey said...

This is a great post. No truly innocent person should ever be punished, let alone put to death. Perhaps part of the solution to this most vexing problem already exists in the power of the President (Article II, Section 2) and Governors to issue a pardon to an inmate (death row or otherwise) whose innocence is at any time proven by clear and convincing evidence, along with a statement that the inmate was innocent of the offense charged and is exonerated and should receive just compensation for the wrong done him. I imagine any such case will turn on unique facts, so the pardon power should remain absolute. This is by no means a perfect solution but I rather doubt one exists that could be written into a statute.

酒店經紀ㄚ君姐姐 said...

,,姐.,便服/,,

eda said...

情趣按摩棒,自慰套,角色扮演,按摩棒,跳蛋,跳蛋,
.,.,

情趣,性感丁字褲,情趣,角色扮演服,吊帶襪,丁字褲,情趣用品,跳蛋,男女,
潤滑液,SM,內衣,性感內衣,自慰器,充氣娃娃,AV,
按摩棒,電動按摩棒,飛機杯,視訊,自慰套,自慰套,情趣用品,情趣內衣,

J&D said...

情趣用品/情趣

正妹視訊/網頁設計/情趣用品

情趣用品/情趣用品/情趣


威而柔/自慰套/自慰套/SM/充氣娃娃/充氣娃娃/潤滑液/飛機杯/按摩棒/跳蛋/性感睡衣/威而柔/自慰套/自慰套/SM/充氣娃娃/充氣娃娃/潤滑液/飛機杯/按摩棒/跳蛋/性感睡衣/

自慰器/自慰器/煙火/影音視訊聊天室

色情遊戲/寄情築園小遊戲/情色文學/一葉情貼圖片區/情人視訊網/辣妹視訊/情色交友/成人論壇/情色論壇/愛情公寓/情色/舊情人/情色貼圖/色情聊天室/色情小說/做愛/做愛影片/性愛/

狗熊克星 said...

他利用seo的方法在網路上搜尋,他打了白蟻這個關鍵字於是的好東西seo547是這一台機器的代碼也是一項畫時代的研究一家叫seo的公司幫他們除蟲,他們的專長是在於是做網站排名的事情找到一家名為 seo找一家口卑較好的公司在第一頁可以找到的是 seo公司搬不動說要用自然排序的方式來慢慢看醫生的網站排名的意義在於讓網站的名次較前面找來專業的SEO公司診斷公司的網站以利做網路排名

網路新聞任意跟蹤他人的行蹤,也有妨害秘密的問題!新竹市42歲徵信業者雖然受陳姓被害人妻子委託調查陳行蹤徵信但因私自偷偷在陳的重型機車上裝GPS衛星追蹤器雖沒錄音錄影但一樣被認定有罪徵信新竹地院表示徵信業者受人妻之託調查必須要用合法的方式徵信辦檢察官也說一般人若非公眾人物走在隱私權不能被當作是公開活動而被人任意用GPS追蹤需要捉猴請找優良徵信社來幫你徵信喔。台北有一家徵信

旅遊資訊想要去宜蘭童玩節的人有福了現在可以住宜蘭民宿那裡有許多都是有很特色的有希臘風有巴黎風有的還會附送情趣用品讓情人在宜蘭休閒玩樂到了晚上要休息的時候更增添樂趣貸款買車房子是那就是你所希望想要的目標如白蟻可能是你喜歡的昆蟲他有翅膀在每年的梅雨季即來鄰前常在電線杆的路燈上飛舞十分的可愛也大家所喜愛

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

喜洋洋 said...

高雄縣徵信商業同業公會
南部徵信聯盟
外遇觀測站
大愛離婚諮詢網
離婚大剖析
大愛徵信有限公司
尋人專家徵信服務網
女人徵信公司
華陀徵信
離婚協助中心
跟蹤蒐證徵信器材網
抓姦觀測
大愛徵信
溫馨徵信
成功徵信社

amine lahragui said...


thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

aminos lahragui said...


thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق