The Least Dangerous Branch

Alexander Hamilton wrote in The Federalist that the judiciary would be the least dangerous branch of government.  He based this on the third branch lacking “the power of the executive branch and the political passions of the legislature.”  The judicial branch has no army to enforce its rulings and no bully pulpit to enrage the citizenry. 

The judiciary has only one weapon at its disposal.  Integrity.  And it’s given its only weapon away.

Via Mike at Crime & Federalism, the 9th Circuit has ruled in Lee v. Lampert that process trumps substance.  They know an innocent man to be convicted and imprisoned, but they just don’t care enough to do something about it. 

We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

The use of the phrase “actual innocence” has always been deeply troubling.  It suggests that the person who cannot prove his innocence cannot be, in fact, truly, actually, innocent.  The dilemma can just as well be the absence of a way to prove a negative fact rather than the fact of innocence.  And it flies in the face of the presumption of innocence in the face of an improper conviction, which has been turned upside down by failure to preserve and harmless error analysis.

But in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth.  They don’t care.  They just don’t care.

In contrast, the 11th Circuit boldly held that this was a step too unpalatable for them to accept in Gilbert v. U.S.  But not the 9th.  Time ran out and that’s that.  Like the grocery clerk with a checklist, the rules say one year and one year it is. 

That Congress, in its zeal to curtail defendants from destroying the fabric of society, decided to use a statutory trick to undermine the fundamental purpose of the Great Writ as the final safety valve for an imperfect system, gives rise to the problematic issues raised by Lee v. Lampert.  That Judge Diarmuid Fionntain O’Scannlain decided that a procedural rule was more important than the bottom line, innocence, is a curtsy to Congress, an abdication of the only role the least dangerous branch has in the scheme of government.

One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety.  The public’s trust, and the integrity of the judiciary, depend on it.  Without it, the courts are nothing, worthless.  When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons.  Our founding fathers were ingenius to provide the citizenry with an alternative to insurrection. 

The judiciary are the stewards of this public trust in their integrity.  They try to protect it fiercely, though mostly from assault by lawyers who call judges mean names.  They are less fierce when it comes to their own actions.

The public will view this decision, one that demonstrates that innocence comes in a distant second to some grocery clerk’s rule, as affirmative proof that the courts are just a part of an omnipotent machine designed to subjugate the public. It’s an overwrought characterization, but it’s about public perception.  Nuanced explanations don’t work well with citizens marching with torches and pitchforks.  They’ve usually got their mind made up already.

Whether the decision makes perfect legal sense or not isn’t important.  The decision gives up the basic integrity of the judicial system, that there are things that matter so much that no rule, no law, no bunch of old men, can ever give them away and still hold our trust.  This is such a decision.

There is a circuit split on the issue.  There is hope that it can be resolved in a way that puts innocent people ahead of the grocery clerk’s rules.  Will the Supreme Court take up such a dangerous cause?  And if it does, will the justices reveal themselves to be lovers of the People and the safeguard of the Great Writ, or lovers of grocery clerks?

8 thoughts on “The Least Dangerous Branch

  1. Brandon

    What the hell, man? Why are you being so hard on grocery clerks? They don’t deserve to be compared to the pricks who value procedure over innocence.

  2. David Tarrell

    Congrats on making Memeorandum as this post is the first time I’ve seen your blog linked there, which indicates a large number of hits.

  3. SHG

    I don’t like grocery clerks, but they can’t do nearly as much harm.  My apologies.

  4. SHG

    Hey David.  I don’t even know what Memeorandum is.  But whatever it is, thanks for letting me know.

  5. RT

    It’s this sort of thing that the pardon power exists for. Now, if you can find a politician willing to use it for a convicted (even if innocent) sex offender is another story. Can you imagine the willie horton ads that would result in the next election cycle?

  6. Dave W.

    When you read the opinions it becomes clear that the real problem in this case was that the prosecution far outspent the defense, and this lead to a grossly unfair trial.

    I think this is the problem in many, many US criminal trials.

    There should be enforced spending parity* between prosecution and defense for every criminal case and this should be enshrined as a due process right. It is high time for a Brown v. BOE for criminal defendants.


    * caveat re “enforced parity”: the defense should be allowed to outspend the prosecution

  7. SHG

    The defendant sought to argue “actual innocence” and was refused for failure to meet the one year deadline.  He was not found to be innocent, which is what he would have tried to do had he been given the chance, and as should be clear from the post, he remains in prison.

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