It’s hard to believe, at least for a fellow like me, that anyone would stand up and proudly proclaim that procedure must prevail over substance. Yet, a hero for procedure has appeared, supporting the 9th Circuit’s decision in Lee v. Lampert because procedure must prevail.
Mark Thompson at League of Ordinary Gentlemen has chosen to be King of the Grocery Clerks with Checklists (with apologies to grocery clerks without checklists).
Thompson’s initially establishes his bona fides by proclaiming himself a staunch defender of the rights of the accused. Not being a follower, I demur, though I would do the same if he proclaimed himself clairvoyant with particularly handsome ears. In other words, it doesn’t matter much either way. What does concern me is his exceptionally poor comprehension of the concept of precedent.
Thompson challenges my explanation of the ramification of the decision, but calling it a misstatement of the facts of the case. It can’t be a misstatement since it wasn’t a statement at all. Dangerous minds fail to see how the holding creates precedent that applies to all of those scenarios that fall within its purview. Dangerous minds lead ignorant minds down the path to misunderstanding and foolishness. Dangerous minds have a right to express themselves, no matter how terribly wrong they are. The burden then shift to others to attempt to blunt the harm dangerous minds can cause.
But this is where Thompson goes careening off the tracks.
Allowing an “actual innocence” exception to the statute of limitations would, in effect, render the statute of limitations meaningless. All that would be necessary to file a habeas petition would be an allegation that certain evidence presented at trial (or that could have been presented at trial) is exculpatory. Once such an allegation is made, the prisoner would be able to proceed with ”the submission of exhibits, oral argument, evidentiary hearings, and [to obtain] numerous rulings,” essentially obtaining a mini re-trial in federal court of his state conviction. As the 9th Circuit pointed out, that is precisely what happened here. This is perfectly acceptable where a prisoner is able to make a credible allegation that he did not possess the exculpatory evidence until after his conviction was final (and could not have obtained it earlier even with due diligence), and the exception for after-acquired evidence exists for that reason.
On the one hand, Thompson’s argument fails to reflect a grasp of legal process. The mere unsupported allegation of “actual innocence” is meaningless, and only by a well-supported, factually grounded position does the defendant stand any chance whatsoever.
But more importantly, the implicit view, that recognizing innocence would “render the statute of limitations meaningless” would somehow rend the fabric of society to shreds, is nonsensical. This was precisely how things worked before Congress decided to mess with the Great Writ in the AEDPA. The Nation survived long enough for Congress to muck it up.
So what’s the problem with giving a damn about innocent people remaining in prison? Here’s Thompson’s bottom line:
The courts cannot and should not be expected to expend tremendous resources to conduct a mini-trial every time a convicted prisoner claims that they are actually innocent after having had the opportunity for an appeal and a substantial amount of time thereafter to file a habeas petition separately challenging the conviction.
It’s just too darn tough on courts. We can’t expect courts to suffer the burden of preventing the imprisonment of innocent defendants. That would be hard work. Lots of hard work. Maybe even lots and lots of hard work. After all defendants would be coming out of the woodwork, claiming innocence, and courts would be required to do what courts do, make decisions. We couldn’t have that.
To a measure, I agree with Thompson that procedure keeps the system moving forward. Where he completely misses the point is that procedure serves an end, a goal, to prevent the imprisonment, and execution of the innocent. If that’s not the purpose of all this, then why do we bother? When the process becomes more important than the goal, it’s time to pack our bags and go back to the farm.
Let’s never forget why we engage in this crazy exercise called the legal system. Let’s never leave it in the hands of grocery clerks with checklists, who are so beloved of the rules that they can’t see why procedure must never trump substance. Let’s never rationalize why an innocent person must remain imprisoned lest our rules of procedure be “rendered meaningless.”
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What about the option of applying for a pardon from the governor when all legal remedies have been exhausted?
In 2006 there were 1.1 million state felony convictions and less than 20,000 state custody habeas corpus petitions in federal courts. In other words, the ratio of federal habeas petitions from state prisoners is running at less than 2% of the convictions.
Funny how nobody frets over the “tremendous resources” that went into obtaining the 1.1 million felony convictions; but the same year the total law enforcement expenditures in the US were about $214 billion.
We only fret about the use of resources when the disfavored litigants make a fuss. The government’s own (frequently frivolous) use of the court system is never seen as a waste of everyone’s time, although it often is.
Not to mention in the criminal context extremely destructive to the victims.
The number of habeas corpus petitions is in fact alarmingly low given the fallibility of the system. Same with the numbers of civil rights actions, which are also usually decried as a waste of “scarce judicial resources”. We need more of those, too.
1. Assuming the district court’s finding of actual innocence was warranted on the merits, then this is absolutely a case that demands a pardon.
2. To the extent the 9th Circuit was willing to accept the district court’s finding of actual innocence on the merits, it should have made its decision prospective only, if possible.
3. The statute of limitations for habeas petitions is too short by far.
4. You wrote in your original post: “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.”
This is, so far as I can tell, factually inaccurate – the decision explicitly emphasizes that the prisoner conceded that he had access to the evidence at the time of trial, and that he was not proceeding under the after-acquired evidence exception. The after-acquired evidence exception is unaffected by this decision.
5. The procedural question remains, though – when should a petitioner be entitled to a hearing? Is an assertion in the petition, after the expiration of the statute of limitations, that he was actually innocent, in and of itself, enough to warrant a hearing (with all that entails) to determine whether he was, in fact, actually innocent? It’s one thing if he can say that he has actually new proof of his innocence. But what if his petition simply asserts actual innocence, that he was convicted only because of his lawyer’s awfulness, without any claim of after-acquired evidence? This may be my lack of experience with habeas petitions showing, but what makes this any different from the average habeas petition?
The fallacy in Thompson’s argument is that he is “gilding the lily” when it comes to procedural justice. What he appears to be arguing is what John Rawls’, in A Theory of Justice called
“Pure procedural justice”, which describes an idyllic world where there is no criterion for what constitutes a just outcome other than the procedure itself. I defer to the CDLs on whether the criminal justice system fits this definition.
Because I have been a “dirt lawyer” for most of my career, I have had to get a writ of habeas corpus only once. That was for a client who was jailed for criminal contempt during a landlord-tenant case. So I don’t have a lot of experience, but I do know that when someone is locked up for something he didn’t do, it affects us all.
It’s outrageous to suggest that a statute of limitations is more important than a right that goes back to the Magna Carta. As you pointed out, the goal of the system is to prevent people from being imprisoned and executed for things they didn’t do.
On the other hand, I think you are being unfair to grocery clerks. I have never seen a grocery clerk with a checklist. All the checklists are in the hands of clerks who work for banks, insurance companies and the government.
The only part that Thompson is correct about, that in some cases it’s mathematically impossible to maximize two functions (i.e., certainty and finality), is actually one of the best reasons against the DP in the first place.
I hate it when someone has a valid point and then adds a bunch of nonsense and mucks up the conclusion. They always get stuck on the part they’re right about, and it can be very difficult to convince them they have gone so far off track.
Of course, it would be nice if the courts didn’t have to go begging to a different branch of government to fix their problems…
I keep meaning to blog about this, but I’m pretty convinced that due process is always free. At over $20,000/year/inmate, knocking just a few years off a sentence is a huge net gain to the state budget. Hire more judges, close a few prisons. It’s win-win.
I agree with Catherine’s last point. Grocery clerks are usually reliable, often courteous, and always blazingly fast. This is metaphor fail.
A statute of limitations is completely inconsistent with the tradition of habeas corpus. Habeas corpus has always been applicable when someone is in custody. And when they are no longer in custody, it is moot.
Res judicata never applied to habeas petitions either. You could have a petition denied and bring the same petition to a different judge, although this practice was “not favored”, and you’d get tossed out if you were “abusing the writ”.
AEDPA was a revolution in habeas law in favor of the government and against prisoners. Which is revealing in that habeas corpus was always seen as a guard against government tyranny.
It’s generally against my policy to explain cultural metaphors to anyone who uses the words “metaphor fail.” But since I like you and don’t want you to go through life with a metaphor range limited to Sesame Street and Teletubbies, please note Marlon Brando in Apocalypse Now:
Don’t make me have to do this again.
Oh, yes, that out-of-context quote from a crazy character played by an oddball actor in a meandering and disjointed 30-year-old movie completely explains what you meant to say. God, I hope you aren’t like this in front of a jury…
I’m with WindyPundit on this one. Kurtz’ grocery clerks had errand boys, not checklists. Besides, I worked as a grocery clerk once, and they never gave me a checklist the entire day I had the job, so there.
Sorry that my choice of metaphor displeases you. Some of us like 30-year-old meandering and disjointed movies. You should feel free to substitute your own metaphor. In the meantime, I will continue to use grocery clerks (combined with another of my favs, monkeys with checklists) to become grocery clerks with checklists. To all former grocery clerks out there who are offended (Catherine), tough nuggies.