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Mourer on Actual Innocence & Criminal Procedure

By Lawrence Solum

Sarah Anne Mourer (University of Miami School of Law) has posted Gateway to Justice: Constitutional Claims to Actual Innocence on SSRN. Here is the abstract:

This article examines the extent of wrongful convictions and the procedural paradox that complicates any actual innocence claim. Specifically, statutes attempting to insulate petitioners from constitutional errors or the misappropriation of law fail to provide adequate safeguards against wrongful convictions. DNA evidence and new technologies are exposing more and more wrongful convictions every day, revealing innocent individuals who have had fair and impartial trials. The article then reviews Troy Davis?s case. Davis is a compelling example of a case in which all constitutional errors (other than his actual innocence) have been resolved and what is left is the glaring conclusion that he very well might be innocent and on his way to execution. This article considers how the state and appellate courts may have resolved Davis?s motions as well as Davis?s second or successive writs under AEDPA, and explains why AEDPA presents obstacles to petitioners asserting actual innocence. This article also recommends to the federal district court mechanisms under AEDPA that will provide Davis with relief. Specifically, assuming it finds Davis?s claim of innocence convincing, the federal district court may: (1) find pursuant to section 2254(d)(2) of AEDPA that the Georgia Supreme Court?s decision was based on an unreasonable determination of facts because it failed to provide Davis with an evidentiary hearing despite volumes of new evidence; or (2) find that to deny Davis a remedy in the face of a persuasive claim to innocence would constitute an unconstitutional suspension of the writ of habeas corpus; or (3) find that the Georgia Supreme Court?s decision was contrary to clearly established federal law, as determined by the Supreme Court of the United States under section 2254(d)(2) of AEDPA. Particularly, to execute an innocent person would violate clearly established federal law. The right to be free from wrongful execution pervades the justice system, the Constitution, and the individual rights on which the whole of criminal law rests. The prohibition against executing the innocent is also found more definitively in the Eighth Amendment?s right against cruel and unusual punishment. To execute a person with a compelling claim to innocence would also shock the conscience sufficiently to violate substantive due process.

Will the federal court interpret the law (AEDPA) as denying Davis relief because Davis is not claiming that the state court made an unreasonable application of federal law other than interpreting his claim to innocence as not sufficiently credible to warrant relief? Under AEDPA, can a person be executed based on a subjective but unreasonable state court assessment of facts regarding guilt or innocence when a federal court, even the Supreme Court, disagrees with that assessment? Federal review of state court factual findings is not prohibited under AEDPA. Federal courts may find themselves positioned to reconsider the longstanding practice of hesitating to review state court factual findings. The consequences of such hesitation become apparent with the federal courts? refusal to review state courts? factual findings (in the name of federalism and finality) resulting in the incarceration and even execution of innocent individuals.

Full post as published by Legal Theory Blog on May 20, 2010 (boomark / email).