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A new look at innocence claims

Greg Taylor was convicted in 1993 of murdering Jacquetta Thomas in Raleigh, North Carolina.  After spending 17 years in prison, he was freed last week when the North Carolina Innocence Inquiry Commission determined that he had been wrongfully convicted.

The what?

It's hard to understate the impact that DNA testing has had, not only on crime investigation, but on our perceptions of crime and innocence.  While we talk about a system in which it  is "better to let ten guilty men go free than to convict one innocent man," everybody realizes that's an aspiration, not reality.  No system is infallible; mistakes will be made.

What DNA testing has done is put on a human face on those mistakes, like those of Robert McClendon and Joseph Fears, Ohio inmates who were released after DNA cleared them; McClendon had served 18 years, and Fears 25.  In a single county in Texas -- Dallas -- DNA evidence has resulted in the exoneration of 18 people.  While the Supreme Court ruled last year that DNA testing of inmates proclaiming their innocence is not constitutionally required, 44 states now have laws permitting such testing, and Ohio, which adopted its law in 2003, is considering amending it to allow parolees, not just inmates, to obtain testing. 

This may have had an unintended side effect, however:  the belief that DNA evidence is the only proof capable of establishing innocence.  The utility of DNA is limited by the fact that it is not obtainable in many crimes; of the 91 cases since 1993 where people were freed from death row because their innocence was established, only 17 of them resulted from DNA testing.  DNA has no effect on the causes of wrongful conviction, and where DNA testing is not applicable, it is left to law, not science, to correct the problem.

That's a difficult task for the law to perform.  Up to the point where the defendant is tried, the legal system -- theoretically -- does its best to ensure that innocent people will not be convicted:  the defendant gets the full panoply of due process protections, and those seeking to convict him must meet the highest burden of proof known in law.  But the moment a jury returns a conviction, the question is no longer the defendant's guilt or innocence, but whether his trial was fair.  The accuracy of the outcome is subordinated to the fairness of the procedure. 

Indeed, there's some argument whether actual innocence should even be considered on appeal.  Last year, after the Supreme Court granted a post-conviction hearing to Troy Davis, a South Carolina man condemned to die for murdering a policeman, Justice Scalia engendered heated discussion with his dissent:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

Scalia was not the first to voice that sentiment.  In 1993, the Supreme Court rejected a habeas petition based on a claim that newly discovered evidence established the defendant's innocence, with Rehnquist writing that such claims were not cognizable in habeas.  That provoked a bitter dissent from Blackmun, who called the result "perilously close to simple murder." 

But regardless of the validity of Scalia's view, in practice it is quite often true.  Everyone knows that mistaken eyewitness identification is the single biggest cause of wrongful convictions, yet appellate courts will almost never reverse on that ground.  Studies show that as many as 20% of confessions are false or coerced, yet courts will rarely venture beyond the issue of whether  Miranda warnings were given. 

That's what prompted the passage in 2006 of a law creating the North Carolina Innocence Inquiry Commission.  The Commission consists of eight members -- a prosecutor, a defense attorney, a victim advocate, an appellate judge, a sheriff, among others -- and its purpose is to review claims "for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief."  The panel conducts an inquiry, at which it can subpoena witnesses and take evidence, and if five of the eight commission members (all eight if the defendant pled guilty) agree that there's "sufficient evidence of factual innocence to merit review," the Supreme Court Chief Justice appoints a three-judge panel to conduct a hearing.  If after the hearing the panel unanimously concludes that the defendant has proven his innocence "by clear and convincing evidence," the charges against him are dismissed.

There are some nits to pick here.  Although he does have the right to counsel, and to appointed counsel if indigent, the defendant has to waive all other procedural safeguards, like the right against self-incrimination, for both the initial inquiry and the hearing.   The evidence won't be considered if it's been presented at some previous judicial hearing.  And the "clear and convincing" standard is daunting; it's much greater than reversal, say, for failure of the state to disclose exculpatory evidence, which only requires sufficient proof that would "undermine confidence in the verdict." 

But those are mighty small nits.  By the time a defendant has gotten to the Innocence Inquiry, he's pretty much shot his wad in the courts, so worrying that something he says might be used against him in some further proceeding is not at the top of his Worry List.  The time limits on presenting newly-discovered evidence in post-trial proceedings are severe, because not only must the defendant show that the evidence wasn't known at the time of trial, he has to show that it could not reasonably have been discovered at that point, either.  And, yes, the standard is daunting, but maybe it should be:  again, we're at the end of the road here, where Brady and similar claims should have been exhausted.  Plus, we're not talking about a retrial; if the defendant makes his case, the charges are dismissed.

Overall, the North Carolina commission is a welcome and inventive approach to a difficult problem, and one that lies at the core of our criminal justice system.  It will be interesting to see if other states follow the lead.

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