Judge John Gleeson’s Moral Compass

Criminal defense lawyers don’t always have kind words for prosecutors.  But United States District Court Judge John Gleeson of the Eastern District of New York could make me eat my words.  Judge Gleeson, who went from Southern District superstar mob prosecutor straight to the bench, has proven to one the finest and most thoughtful judges around. 

His decision this week in McKithen v. Brown (via Volokh) demonstrates Judge Gleeson’s commitment to the integrity of the criminal justice system rather than slavish adherence to procedural rules that would leave innocent people imprisoned.  As Eugene Volokh notes (including his parenthetical), this is the bottom line:

The Petition Clause … secures a right of meaningful access to whatever avenues remain [after normal appeals have been exhausted, avenues that include a clemency petition -EV], and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of the trial.

Big deal, you say?  Why should I be fawning over a decision that allows a convicted defendant, years later and following exhaustion of the normal processes, access to physical evidence to perform DNA testing?  Because this decision stares down those habeas decisions that would deny an innocent person the opportunity to prove his innocence because of judicial inconvenience.  There are a long line of judicial excuses/explanations to justify depriving a defendant who claims actual innocence the ability to prove it, and even the ability to get before a judge to make the pitch. 

The courts have elevated their procedural niceties over the actual innocence of human beings to keep the cases flowing smoothly.  While this is how one keeps the trains running on time, it does little to fulfill the promise of justice that permeates our legal platitudes. 

John Gleeson has a moral compass.  He has shown it many times  before and now he shows it again.  Like the judge whose seat he filled, Jack Weinstein, he has shown no fear when it comes to fulfilling our highest expectations of the judiciary. 


An overriding concern for innocence is a central preoccupation of our constitutional tradition. See, e.g., Winship, 397 U.S. at 363 (“The standard [of proof beyond a reasonable doubt] provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” (internal quotation marks omitted)); id. at 372 (Harlan, J., concurring) (“[I]t is far worse to convict an innocent man than to let a guilty man go free.”); McKithen VII, 481 F.3d at 91-92 (“‘[O]ur procedure has been always haunted by the ghost of the innocent man convicted . . . .’” (quoting United States v. Garson, 291 F. 646, 649 (S.D.N.Y. 1923) (Hand, J.))). Furthermore, “‘[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Youngberg, 457 U.S. at 316). It might then seem natural that inmates retain a liberty interest in being released from custody, conditioned on their innocence.

For many, it will come as a bit of a surprise that a judge is constrained to explain why actual innocence matters.  To you, I say welcome to criminal law, especially in the federal courts.  Not only does John Gleeson write that innocence matters, but he backs it up with his ruling.  That doesn’t happen often.

By way of explanation as to why this particular decision matters, since it addresses 11th hour efforts to prove innocence and hence comes at the very back end of the system that most people believe already provides a defendant with huge (even excessive) opportunity to prevail, here’s why.  The assemblage of rules and rights that constitute the myth of criminal law simply don’t happen the way most people think.  While all the right words are uttered, rarely does the process happen in a way that fulfills the rhetoric. 

The result is that we continually find, many years later, that our beloved system made a mistake and that an innocent person spent the better (worse?) part of their life in prison for a crime they did not commit.  Judge John Gleeson ruled that due process trumps the grocery clerk’s list of rules.  And that’s why this decision matters.

2 thoughts on “Judge John Gleeson’s Moral Compass

  1. Joe

    If there were more logical and level headed judges and justices such as this, the criminal justice system would not only run better, but would inspire much more confidence than it does at this point in time.

  2. Mark

    ^ You totally took the words from my mouth…. We need more logical and level headed judges like this. People have vey little faith in the justice system these days.

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