A Criminal Enterprise

Rational Responses to the Innocence Crisis Go Further Than Death Penalty Repeal

Posted in News by Bidish J. Sarma on January 22, 2011

In an exciting moment in the anti-death penalty movement, both houses of the Illinois legislature voted to repeal capital punishment. Now, the decision of whether to abolish the state’s death penalty resides in Governor Pat Quinn’s hands.

The Illinois Senate’s decision on the repeal bill came on the eight-year anniversary of former Governor George Ryan’s announcement that he would commute the sentence of 163 death row inmates and pardon another four. The Governor’s decision was motivated in large part by the concern that the State had wrongly convicted over half of the death row inmates whose cases had concluded with either execution or exoneration between 1978 and 2000. See Lawrence Marshall, The Innocence Revolution and the Death Penalty, 1 Ohio St. J. Crim. L. 573, 578 (2004). Those numbers, the Governor thought, were shocking and unacceptable.

Innocence has proven to be a driving force in the current effort to push legislatures to repeal the death penalty. After all, the question we must ask ourselves is: can we tolerate the risk – any risk – that we will use the power of the State to execute someone who is innocent of the crime for which they have been convicted? The question raises a powerful and unshakeable inference: a human institution – any human institution – is imperfect. Mistakes are a reality. For many, that reality is enough to win the argument that the death penalty is not a policy option to which we should dedicate precious resources to maintain.

But, as critical a tool as innocence has been to the anti-death penalty movement, I wonder why the alarming error rate has not yet inspired many other changes in the criminal justice system. After all, many innocent individuals who were sitting on death row are now sitting in prison, serving a life sentence without the possibility of parole. Innocence undermines the conviction, not just the punishment.

The elimination of the death penalty responds to the worry that an irreversible act, an execution, permanently prevents an inmate from bringing to light his innocence. But, that cannot be our only worry. How many people in prisons across the country will never be able to muster the immense resources it takes to be exonerated? How many inmates have died in prison without vindicating themselves and enjoying the freedom and opportunities they rightfully deserved? How many of those stories will remain unknown?

Surely, Illinois is attempting to take a step in the right direction. But, legislatures, judges, and lawyers must work greater changes in the criminal justice system to curtail the convictions of innocents. A serious look at the reliability of eyewitness identification and quasi-scientific evidence (like “bite-mark” analysis), legal and disciplinary actions against prosecutors who commit misconduct or fail to disclose exculpatory evidence, a commitment to confrontation and the presumption of innocence, and responsible consideration of evidentiary rules governing the admissibility of the other bad acts an individual has committed – these are just a handful of things that could make a meaningful impact upon the innocence crisis.

This is not to say that criminal justice reform advocates have not been pushing for these kinds of changes for years. But, it seems that innocence is most effectively and most often deployed in the battle against the death penalty. There is no doubt that the fight against the death penalty currently relies upon innocence arguments to gain traction. However, does innocence rely upon the death penalty as well?

“The Numbers Speak”

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

Jeff Gamso at “Gamso – For the Defense” put up a thoughtful post that is responsive to the question I posed in my entry on the Gallup poll numbers.  You can visit check out his insightful analysis here: http://gamso-forthedefense.blogspot.com/2009/11/numbers-speak.html.


Do People Actually Care If the State Executes Innocent Defendants?

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

In October, Gallup released figures regarding its most recent poll on the death penalty.  The report is available on the Death Penalty Information Center website here.

The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).”  While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.

According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’”  As the report points out:

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case.  Justice Scalia, joined by Justice Thomas dissented from the order.  In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).

But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large.  Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved.  Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless?  How could one simultaneously hold both beliefs?

Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma.  Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment.  The Gallup numbers undercut the force of this assumption.  Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty.  The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…

More Scrutiny Needed in Texas, Where Death Penalty Continues to Run Rampant

Posted in Cases, News by Bidish J. Sarma on November 6, 2009

Sorry for the radio silence the past few weeks.  Things have ramped up at work for all of the bloggers here, but we hope to reconnect with the blog more fully very soon.

In the meantime, I wanted to bring attention to this AlterNet piece.  Most importantly, it points out something about the Willingham saga worth repeating here:

Perry’s role in this continuing injustice should be cause for a national uproar at least as big as the one that attended Mark Sanford’s dalliance in Argentina or Elliot Spitzer’s patronage of prostitutes. What could be more sordid than hushing up an illegitimate state-sanctioned killing? What more obvious abuse of power exists? Yet one can easily read the country’s major papers and faithfully watch TV news and barely hear a word about what’s happening in Texas.

Why this is not an issue of national importance is a question that frustrates me every day.  But, the death machine keeps working in Texas.  Our friend at StandDown notes that:

Texas carried out its 20th execution of 2009, tonight in Huntsville.  It was the state’s 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation’s post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

For more on the Willingham/Perry issue, check out our prior post here.

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?

The Governor of Texas, the Execution of an Innocent Man, and the Incomplete Search for Public Accountability

Posted in News by Bidish J. Sarma on October 2, 2009

It is relatively rare for an American politician seeking office or re-election in a State that has retained the death penalty to make a strong statement against capital punishment.  (Ohio’s Jennifer Brunner is a refreshing exception).  However, one might expect a State’s leader to respond to compelling evidence that his government executed an innocent man with measured concern and a desire to uncover the truth.  Not in Texas.

Nearly one month ago, the New Yorker published David Grann’s riveting and alarming piece that suggests that Texas wrongfully executed Cameron Todd Willingham in 2004.  Despite the compelling expert evidence available in 2004 that indicated Mr. Willingham was convicted on the basis of ‘junk science,’ Texas moved brazenly forward with his execution.  After Grann’s article rocked the nation in September, the Texas Forensic Science Commission prepared to make an official state-sponsored inquiry into Willingham’s conviction and the testimony that led to his death by lethal injection.  Yet, two days before the inquiry was set to begin, Texas Governor Rick Perry sabotaged the effort.  According to this Dallas Morning News article, “The hearing of the Texas Forensic Science Commission, scheduled for Friday in Irving, was abruptly canceled by the new chairman the governor chose, Williamson County District Attorney John Bradley. He is considered one of the most conservative, hard-line prosecutors in Texas.”

Though Perry defends his decision to appoint Bradley and railroad the commission as nothing more than a “typical” use of his appointment power and executive prerogative, nobody is buying his line.  There is no such thing as ‘business as usual’ when the State uses its coercive power to execute an innocent man.

For anti-death penalty activists, Perry’s actions represent a mixed blessing.  On the one hand, Perry has exploded the long-held hope that a State would officially recognize that it had mistakenly executed someone who was actually innocent.  On the other hand, Perry has only drawn more attention to the issue.  I find myself a little surprised he didn’t let the hearings proceed as scheduled and then strong-arm the Commission’s members (behind closed doors) to publish an equivocal report that did not firmly accept responsibility for wrongdoing.  Instead, Perry has made a naked attempt to undermine the Commission’s work.  His move seems to emanate from a deep fear that what most of us think is true: Cameron Todd Willingham was an innocent man.

Maybe anti-death penalty advocates have been unrealistic to hope that a State would acknowledge such a tragic mistake.  Maybe we already have all the evidence we need.  Who really needs Rick Perry’s stamp of disapproval, after all?

But, I wonder if other government officials can take action in Texas.  Can the legislature rebuke Perry?  Or, more importantly, can the legislature create a non-executive commission to undertake the task originally charged to the Texas Forensic Science Commission?  If that is too much to hope for, perhaps the judiciary should step in.  Judges and Justices concerned with the fair operation and administration of the Texas criminal justice system are not powerless people.  Why can’t the judiciary establish its own commission to investigate whether any innocent individuals have been executed in Texas?  The judicial branch is certainly empowered to ensure that it is working effectively, efficiently, and, above all, justly.  The appearance of impropriety and injustice can sap the judiciary of its public legitimacy, and undermine people’s faith in the criminal justice system.  The judiciary has an obligation to protect itself.

As advocates, we need not focus only on the Governor, deplorable as his actions may be.  Let us hold the entire government responsible, until someone steps up.  Inaction here is as contemptible as Perry’s bad action.  Once again, who needs Rick Perry?

The Next Round for Troy Davis

Posted in Uncategorized by Bidish J. Sarma on August 20, 2009

At long last, a court has provided Troy Davis with some relief on his claim of actual innocence.  On August 17, the United States Supreme Court ordered a federal judge in the Southern District of Georgia to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.”  The Court’s order and a concurring statement written by Justice Stevens and joined by Justices Ginsburg and Breyer are located here on the SCOTUSblog website.  Justice Scalia, joined by Justice Thomas, dissented from the order.  His dissenting opinion is also on the SCOTUSblog website, here.

The Supreme Court took action on Davis’s original petition for habeas corpus.  This extraordinarily rare exercise of jurisdiction raises many interesting questions.  Professor Berman has asked several of these questions on his Sentencing Law and Policy blog, including: “will SCOTUS immediately review the ‘findings of fact’ it has ordered or will the Eleventh Circuit take the first ‘appeal’ in this ‘original’ habeas matter?”  Professor Berman’s post can be read in full here.  Kent Scheidegger also raised a number of other interesting questions here on the Crime & Consequences blog.

The Court’s order came on a hail-mary pass from Davis’s lawyers.  It seemed as he had exhausted almost all of this options.  As David Von Drehle’s Time article explains, “Numerous times since the 1996 [Antiterrorism and Effective Death Penalty Act] law was passed, the high court has ruled that the limits imposed by the [Act] are valid — when they restrict the lower courts.  But the Justices held open their own prerogative to issue a writ of habeas corpus if so moved. In other words, the lower federal courts had no power to hear another word from Davis. But he could make his pitch directly to the Supreme Court.”  Even with the doors to the highest court technically open, the odds certainly still looked long.  Adam Liptak of the New York Times pointed out “The court has granted such petitions just a handful of times in the last century, and Justice Scalia said the court had not taken the ‘extraordinary step’ of ordering a federal trial court to adjudicate such a petition from a state prisoner in nearly 50 years.”

As federal jurisdiction experts discuss and debate the Davis order’s implications, Davis’s lawyers must prepare to present the facts to the district court.  It is well-known that seven of the nine eyewitnesses who testified against Davis have recanted their testimony.  However, another interesting aspect of the evidentiary hearing may concern the testimony of a key witness who has not recanted: Stephen Sanders.

(The other non-recanting eyewitness is Red Coles – the other main suspect in the case – who pointed the finger at Davis.  As this post on the new Snitching blog explains, another “important aspect of the Davis case that commonly occurs in informant cases is the ‘first-in-the-door’ phenomenon, in which the first suspect to cooperate with police not only gets to direct attention away from himself but can fundamentally shape the official investigation.”)

During the investigation immediately after the shooting, Sanders – the front-seat passenger in a van at the drive-thru window – told the police unequivocally that he “wouldn’t recognize [the shooter] again except for his clothes.”  A month later, long after the police arrested Davis, the police asked Sanders if he had any newfound confidence in his ability to identify the shooter.  He did not.

Two years later, Sanders testified against Davis . . . and, astoundingly, expressed no doubt.

Although individuals reviewing the new evidence may doubt the veracity of witness’s recantations, they should not hang their hats on the non-recanted testimony provided by Sanders.  Several factors – above and beyond his own damning initial admission that he could not identify the shooter – indicate that Sanders’s testimony is unreliable.  First, the conditions were far from optimal for a trustworthy identification: Sanders had an obstructed view across the driver’s side passenger; the lighting was poor; and he only had a brief opportunity to see the shooter.  Second, now-familiar concerns with cross-racial identification further weaken confidence in Sanders’s ability to make an accurate identification two years after the crime. Third, memory does not improve over time.   In fact, the scientific literature indicates that memory fades sharply very soon after an event occurs and then levels off (in a phenomenon sometimes called “the forgetting curve”).  Finally, in-court identifications – like the one Sanders made at Davis’s trial – are the most suggestive.

Will Davis be able to undermine the credibility of evidence presented at his original trial?  Will the defense lawyers be able to successfully frame credibility concerns as “evidence that could not have been obtained at the time of trial?”  Will that depend on whether they can convince the judge that advancements in the study of memory or newfound wisdom about witness identification have changed expert opinions of the quality of Sanders’s identification?  The answers to these questions could prove critical to the outcome of Troy Davis’s next evidentiary hearing.