In light of Judge John Cataldo’s decision in the dismissal of murder charges against Fernando Bermudez’s based upon “actual innocence,” State Senator Eric Schneiderman has proposed a bill that would allow judges to ignore procedural roadblocks that would inhibit a defendant from presenting belated evidence of innocence. From the New York Times :
Mr. Schneiderman is one of the sponsors of a bill introduced in the Senate last month that would add a provision to state law allowing judges to overlook procedural errors in a defendant’s case and overturn a conviction when the evidence before them “conclusively establishes” innocence.
An “actual innocence” statute, experts said, would give judges the leeway to excuse procedural violations, missed deadlines and other mistakes if the evidence is strong enough.
“It elevates substance over form,” said Glenn A. Garber, a Manhattan defense lawyer and founder of the Exoneration Initiative, an organization that focuses on innocence claims that lack DNA evidence. “If they know they’re required to engage in actual innocence analysis, it sends a message to courts that they have to do more when they’re confronted with compelling evidence of innocence.”
Opponents of the actual innocence doctrine, however, have stressed the importance of finality in the justice system and fear that these statutes could lead to myriad frivolous claims by desperate prisoners.
The burden that this could place on the system isn’t just a problem for judges with enough to do, but could crowd out legitimate claims of actual innocence, not to mention those cases that are otherwise winding their way through the courts. If you’re a fellow in jail awaiting trial, would you be thrilled by the prospect of your trial being delayed by months because the judge is busily reviewing a pile of actual innocence petitions from inmates, most of which are utterly frivolous?
Though “actual innocence,” a phrase that is disturbing to many as it suggests that everyone who can’t prove “actual Innocence” must be actually guilty, is possibly the case far more frequently than most would acknowledge based upon DNA reversals and the odd decision like Judge Cataldo’s, they still remain a very small percentage of the cases that go through the system and the defendants who find a new home courtesy of the state. Even if the wrongfully convicted comprise 10% of the prison population, that leaves 90% with too much time on their hands. That’s a problem.
But the answer isn’t to turn a cold shoulder toward the innocent, or elevate the importance of finality over freeing the innocent. Nor should judges toss the pro se petitions in the circular file and concentrate only on those few defendants who are fortunate enough to have captured the pro bono attention of a lawyer.
The proposed amendment, on the other hand, is hardly a panacea. The bar for consideration of an actual innocence petition is almost insurmountable:
1 Section 1. This act shall be known as the “actual innocence justiceIt’s not easy to “conclusively establish” much of anything, no less innocence. In fact, it’s nearly impossible, and likely means that the vast majority of innocent prisoners will have no recourse under this bill. It won’t stop anyone from trying, but it will mean that few will have even the slightest chance of prevailing. The bill thus offers the worst of all possible worlds, too high a bar for the truly innocent and an open door for every frivolous claim that find its way to paper, thus sucking up the limited time and attention of the courts.
2 act of 2009″.
3 S 2. Subdivision 1 of section 440.10 of the criminal procedure law is
4 amended by adding a new paragraph (i) to read as follows:
5 (I) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
6 HE OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS
7 ACTUALLY INNOCENT WHERE THERE EXIST SUFFICIENT EVIDENTIARY FACTS AND
8 INFERENCES, PRESENTED BY SWORN AFFIDAVIT OR OTHER RELIABLE AND RELEVANT
9 PROOF, THAT, WHEN VIEWED IN LIGHT OF THE RECORD AS A WHOLE, CONCLUSIVELY
10 ESTABLISH THE DEFENDANT DID NOT COMMIT SUCH CRIME OR CRIMES.
As much as I have no answer to the conundrum, the problems recognized by this bill, and its opponents, could be significantly reduced if judges were to take their responsibility far more seriously prior to conviction. My preferred resolution to the problem of innocent people in prison is to stop convicting innocent people. While this is hardly a complete solution, it’s a good start. And it won’t even require passage of a new law.