A Criminal Enterprise

Is There A Free-Standing Actual Innocence Claim?

Posted in Uncategorized by Robert Smith on October 18, 2009

See Previous Post: The Next Round for Troy Davis (discussing background of SCOTUS action on Troy Davis’ Original Writ Application)

On August 29, Judge William Moore of the United District Court for the Southern District of Georgia (who is on the receiving end of the Supreme Court’s transfer of Troy Davis’ Original Writ Petition) ordered Georgia to respond first (within 45 days) and Davis to respond (within 45 days of notice of Georgia’s filing). Among the issues to be addressed:

In his Petition for a Writ of Habeas Corpus, Petitioner has asserted a free-standing actual innocence claim. (Doc. 2 at 28-32.) The Supreme Court has never explicitly held that such a claim is cognizable under the Constitution, much less explicitly determined the appropriate burden of proof in such a case. See House v. Bell, 547 U.S. 518, 554-55 (2006), Herrera v. Collins, 506 U.S. 390, 417 (1993) . Accordingly, Petitioner and Respondent should be mindful to address not only the merits of this claim, but also whether such a claim is constitutionally cognizable and, if so, the appropriate burden of proof.

Georgia filed its response on Oct 9th. The State breaks into three categories its argument that there is no such thing as an actual innocence claim on federal habeas review:

1. The Court has not recognized such a right (which falls easily into the “no shit, Sherlock” category)

2. The parole board heard Davis’ claim and did a thorough job of considering it (including hearing from witnesses, etc)

3. Georgia has an independent process for evaluating actual innocence claims (unlike in Herrera) and Davis was able to avail himself of that process–the Extraordinary Motion for a New Trial– at any time.


This seems a wholly insufficient response. The first and second points are facially unpersuasive (I doubt that even the State is convinced by its argument that a parole board hearing is equal to a judicial hearing). The third point is more interesting. If a state were to provide co-extensive process, then I think there is a good argument to be made that federal courts would owe the same level of deference as under AEDPA. But the Extraordinary Motion for a New Trial employs procedural defaults (strict definition and timing requirements based on availability  of “new evidence”, an unfavorable view of recantation evidence, and, in this case, the possibility that an evidentiary hearing is not granted despite what has to meet any threshold for evaluation of new evidence).  But none of this answers the question of whether an “actual innocence” claim exists under the 8th Amendment.

I would love discussion on this issue (as it is necessarily amorphous and inevitably encompasses several competing considerations (individual fairness, finality, federalism, systemic integrity, etc.). Here are some knee-jerk preliminary thoughts:

1. Maybe there should be two standards. If a defendant can demonstrate his guilt phase innocence based on new reliable evidence by showing that no reasonable juror could find him guilty then he gets a new trial (this is the Jackson standard in habeas, but there is room to play with the would/could distinction. Would might be more accurate as it is closer to Strickland and Brady than to the Jackson insufficiency standard).

But, since death is different in kind than any other punishment and the possibility of future exonerating evidence is irrelevant once the person is executed(think Willingham), a showing of innocence (innocence of guilty, not innocence of the death penalty) by  clear and convincing evidence (as opposed to the more probable than not under Schlup or the “no reasonable juror” standard that should get you a new trial) then he cannot be executed.

It seems to me that this compromise balances the tensions between 1. finality 2. the difficulty in re-trying old cases with stale evidence 3. the individual’s liberty interest and 4. society’s confidence in the legitimacy and accuracy of the criminal justice system.

The language in House demonstrates that the Court believed House to be far away from any possible Herrara claim, but it might be that the best standard for not being executed (as opposed to getting a new trial) is  the “probably innocent” standard.

2. I like Souter’s argument in his dissent in Kansas v. Marsh, as I think it helps to rebut the argument that innocence has never been an independent 8th Amendment issue.

We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and Stevens, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.

3. My guess is that the historical landscape is distorted because of (1) the short time between conviction and execution and (2) the lack of the science, etc, to determine innocence after the fact. But if we look to the purpose animating the “better to let 10 guilty go free” or the “beyond a reasonable doubt standard” we find that the Framer’s had an abiding interest in not letting an innocent person be executed…. but they felt that (as we did until recently) any error came from imperfect process and so cementing solid constitutional procedures and protections would eliminate risk. But we know now that isn’t true. So if we abstract from the purpose of protecting the innocent we likely would find that executing the innocent (even those who have had a perfect trial) would defy original intent.

4. All that said, I wonder if there were cases at Common Law or in England where someone confessed to the crime after the trial and conviction of someone else. Perhaps there is some authority that contradicts the historical arguments made by Rehnquist, etc..

5. The most appealing counter-argument is the “serious disruption to the federal courts” that freestanding innocence claims will have. But I doubt it pans out. First, in the death penalty context, there are only roughly  3,200 death row inmates in the state and federal system combined. Out of these inmates, a sizeable percentage have (1) (small percent) plead guilty, but received death by 3 judge panel or penalty jury or (2) (big percent) admit guilt at trial and ask for remorse. So really..what rush to the courthouse. And if the Court adopts Schlup as the threshold for even hearing the claim, then are we really to expect more of an outpouring of petitions to federal courts than we see now under Schlup? And won’t most of them be easily disposed of anyway? Schlup discusses the minimal disruption in actual innocence cases. Also finality claims are at a low in those context and individual rights claims at a high.

I’ll end with these words from the Herrera dissent:

The execution of a person who can show that he is innocent comes perilously close to simple murder.” The dissent also talks about how Courts cannot complain about only having affidavit evidence when they truncate review by not holding an evidentiary hearing. I think this is from Schlup, but could be important in terms of casting doubt on the remaining testimony (based on physical impossibility evidence, etc, not presented at trial but that could be presented at an evidentiary hearing now that the science exists):  “In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.

Four questions:

(1) Is “innocence” mentioned anywhere in the AEDPA legislative history?

(2) Do any other questions recognize free-standing innocence claims?

(3) How many states have recognized an actual innocence claim based on the federal (or their respective State) constitution?

(4) Is there reliable polling data on how the public feels about allowing actual innocence claim without procedure defaults, etc?

2 Responses

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  1. Joshua Lott said, on November 22, 2009 at 7:18 am

    I came across your blog while updating research. I’m a 2L at GSU and am finishing up a law review note about ‘actual innocence’ and troy davis. I am enthused by the fact that your questions are similar to my own (lets me know I’m on the right track). Not sure if you saw, but U.S. Rep. Hank Johnson (GA) just submitted a bill in the House Judiciary Committee proposing language amending the AEDPA to include an actual innocence exception to be proven by a probable standard very similar to Blackmun’s dissent in Herrera. Not sure if there is all too much practical difference between it and the Schlup standard (other than its procedural purpose). Check it out!

  2. Leonard Martinez said, on February 5, 2011 at 12:47 am

    The notiion that a free standing claim of innocence without an accompanying Constitutional violation is not cognizible is an a priori value decision that goes against the Blackstonian ideal that it is better to free 100 guilty people than convict one innocent person. If we truly believed in the Blackstonian ideal, it would not matter whether a reassessment of innocence goes against finality of judgment, or stale evidence, or witness inconvenience, if there is in fact good reason to believe someone is innocent. What is a perfect trial anyway. The Supreme Court has never posited such a thing as a perfect trial, only a Constitutionally fair trial. So unless you can show ineffective assistance of counsel, prosecutorial misconduct, or some egregious deviation from a fair proceeding, innocence in an of itself does not matter. And that troubles me. Truth and actual innocence are not supreme values and should be.

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