Finality or Innocence

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.”

On its face, this hardly seems a controversial proposition.  Certainly no one wants innocent people punished, which of course means that the guilty go unpunished.  So what’s the issue?


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.

While on its surface, the fear of “myriad frivolous claims” hardly seems sufficient to counterbalance the imprisonment of the innocent, but it’s not as inconsequential as some might think.  New York, like elsewhere, has an awful lot of people in prison for many, many years.  They have an enormous amount of time on their hands and access to a law library.  There is nothing to lose by trying to argue, reargue, and reargue again, the proposition that they are innocent.

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  justice
    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.
It’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.

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.



5 thoughts on “Finality or Innocence

  1. John R.

    It so happens I’ve been devoting a lot of thought in the last few days to a similar issue, pertaining to two ancient “writs”: habeas corpus and coram nobis.

    These writs have been largely codified. I’m not sure they should ever be. It seems to me a separation of powers problem. The argument is that these two writs go to the “essential function” of courts and the legislature can’t venture into that territory.

    In NY, coram nobis in the trial courts was codified by Crim Proc Law Article 440. But the net result of letting the legislature mess with these things is that they always limit it. The big thing CPL 440 did was to limit the number of times you could ask for relief.

    It was a peculiarity of both habeas corpus and coram nobis that res judicata did not apply to either. You could bring a petition, and if the judge said no you could bring it again. You could go to another judge and tell him you think the other one screwed up and see if the new one will grant it. The test was whether you were “abusing the writ”.

    Which pretty much solves your concern. Frivolous petitions are an abuse of the writ, and that’s how you sort them out.

    On federal habeas petitions the law has really been entirely gutted. Not only are there serious limits on “successive petitions”, but there’s actually a statute of limitations of one year. Both of these restrictions change the very nature of the remedy.

    The two writs were like a safety valve on the system to correct serious error. As originally practiced, for oh, say a thousand years, they were a tool for any lawyer that believed strongly that a serious injustice had occurred. They were also a recognition that the system can screw up, and that “finality” was a subordinate concern to correcting serious injustices.

    An “actual innocence” statute wouldn’t make much sense if we still had the ancient writs the way we used to. It might not make any sense anyway: isn’t it inherent in the nature of the courts to yield to actual innocence? What does it say about us that we would have to codify such a thing? Is it the legislature’s understanding that the courts cannot free innocent people on their own authority? Isn’t that what courts are for?

  2. SHG

    Very interesting points.  The 440.10 motion has been here as long as I’ve practiced, despite the inclination of prisoners to use the old coram nobis language.  What troubles me is that defendants (and defense lawyers) often rush to make the 440.10 motion long before “conclusive” proof becomes available, which can be years or decades after the conviction.  There must be a backdoor to allow for a court to hear this, and I fully agree that it should be part of the court’s inherent powers as being a foundational aspect of the existence of any judicial system.  If they can’t recognize and respond to innocence, no matter what the procedural status, then they aren’t really a court.

  3. John R.

    Yes and what happens when you actually have conclusive proof and the judge won’t recognize it? In the old days, go to another judge.

    It’s hard to believe that lawyers representing some powerless, imprisoned person once had such a powerful mechanism available to them.

    Personally, I think this is all of a piece: the increasing denigration of criminal defense attorneys within the system itself.

    I was reading that Warney opinion from the 2nd circuit you linked to. It bothered me so much. You see an appellate court go on and on about how it has to protect the “public confidence” in the office of the prosecutor.

    Well, sure, if your main concern is that there is a high conviction rate. After all, it is the “public” that will provide the jury members.

    But that whole attitude, so universally shared by the judiciary, is practically un-American. We are supposed to be skeptical, even suspicious, of those who wield governmental power. This should be especially true with respect to prosecutors.

    Is any court ever so solicitous of “public confidence” in defense attorneys? Shouldn’t they have the public’s confidence too? It’s probably even more important.

    Lawyers have been emasculated. They are regarded as lower than court clerks. They certainly have less power and influence.

    Time to fight back, I think.

  4. Thomas R. Griffith

    Sir, is it strange that this Senator (and others not named) proposed this bill so closely on the heels of Mr. Bermudez’s release?

    At first glance a non-lawyer would think that such a bill would go in favor of the not guilty person. But with yours & Mr. R’s. input, it seems that it would also harm CDL’s. How would it contribute to the denigration & emasculation of an entire section of a profession? Thanks.

  5. SHG

    The bill isn’t a response to the Bermudez decision, but one that was pending before.  The decision, however, raises the profile of the bill and makes it a timely issue, which will likely help somewhat.

    The question isn’t whether it helps or harms CDLs, but whether it’s an effective solultion to a diffcult problem.  As for lawyers, it’s not clear what impact, if any, it will really have.

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