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Actual Innocence and Freestanding Claims for Relief

By Ken Strutin, Published on November 25, 2010

False confessions, bad eyewitness identifications, and faulty forensics, among other problems, have shown that seemingly iron clad adjudications can reach the wrong result.1 "[A] 'guilty' verdict only indicates that the government has proven beyond a reasonable doubt that the defendant committed each and every element of the crime, and not that the defendant actually committed the crime."2 A freestanding claim of actual innocence3 is a potentially powerful tool to assail a verdict that points to the wrong person. Still, courts4 and legislatures5 have made only small gains in recognizing actual innocence generally6 as a basis for contesting a wrongful conviction.

The right to overturn a verdict based on proof of actual innocence has not been openly embraced by the U.S. Supreme Court, and only assumed for the sake of argument.7 In 2009, a capital defendant in Georgia, Troy Anthony Davis, filed an original writ of habeas corpus in the U.S. Supreme Court in which he raised an actual innocence claim.8 The majority of the Justices decided to transfer the matter to a federal court in Georgia for an evidentiary hearing.9 After reviewing the matter and ultimately rejecting petitioner's claim,10 the District Court judge nonetheless declared: "[E]xecuting an innocent person would violate the Eighth Amendment of the United States Constitution."11 Whether this position will be adopted by the U.S. Supreme Court remains to be seen.12

This article collects selected scholarship on "actual innocence" and litigating post-conviction claims that go beyond the procedural metrics of the trial process.

SCHOLARLY LITERATURE

SECONDARY SOURCES



1 See 250 Exonerated, Too Many Wrongfully Convicted (Innocence Project 2010). See generally Ken Strutin, Wrongful Conviction and Innocence Resources on the Internet, LLRX, June 10, 2006.

2 People v. Cole, 1 Misc. 3d 531, 532 (Sup. Ct. N.Y. Kings Co. 2003)(citation omitted)("The issue in this case is what is a court's role when a claim is made in a motion to vacate a judgment that the defendant did not commit the crime, although the defendant's conviction was constitutionally and properly obtained (free-standing claim of innocence)."). See generally, Aileen R. Kavanagh, People v. Cole: Is the Incarceration of an "Actually Innocent" Person Constitutional?, 19 Touro L. Rev. 475 (2003).

3 See Glenn A. Garber & Angharad Vaughan, Actual-Innocence Policy, Non-DNA Innocence Claims, N.Y. L.J., April 4, 2008, at 4 ("A claim of actual innocence is premised on the notion that the imprisonment of an innocent person violates due process of law and the protection against cruel and unusual punishment embodied in the federal and state constitutions. Unlike most post-conviction claims, which must be based either on constitutional error or on newly discovered evidence advanced with due diligence, an actual innocence claim can stand alone irrespective of antecedent constitutional error; this type of claim is referred to as a 'freestanding actual innocence claim.' Moreover, unlike a newly discovered evidence claim, a claim of actual innocence can be raised at any time, and can be founded on 'any reliable evidence,' including hearsay and other evidence that may be inadmissible at trial." (footnotes omitted))

4 See, e.g., Montoya v. Ulibarri, 142 N.M. 89, 91 (2007)("[T]he continued incarceration of an innocent person is contrary to both due process protections and the constitutional prohibition against cruel and unusual punishment within the New Mexico Constitution. Therefore, we hold that a habeas petitioner may obtain relief if he can establish by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence."). See generally James R. Acker and Catherine L. Bonventre, Protecting the Innocent in New York: Moving Beyond Changing Only Their Names, 73 Alb. L. Rev. 1245, 1349 (2010)("Notably, some trial courts in New York have recognized actual innocence as a ground for post-conviction relief under the state's criminal procedure law. This is so notwithstanding the fact that no appellate court in New York has expressly decided that such a ground for relief exists.")(footnote omitted).

5 See, e.g., N.Y.A. 9736B, 233rd Sess. (2010); N.Y.S. 6234C 233rd Sess. (2010)("Establishes the actual innocence justice act of 2010; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so. Establishes the actual innocence justice act of 2010; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.")

6 But see, e.g., Justice for All Act of 2004 (18 U.S.C. S 3600) (provides an opportunity for "post-conviction testing of DNA evidence to exonerate the innocent").

7 See DA's Office v. Osborne, 129 S. Ct. 2308, 2321-2322 (2009)("As a fallback, Osborne also obliquely relies on an asserted federal constitutional right to be released upon proof of 'actual innocence.' Whether such a federal right exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet. House, 547 U.S., at 554-555, 126 S. Ct. 2064, 165 L. Ed. 2d 1; Herrera, 506 U.S., at 398-417, 113 S. Ct. 853, 122 L. Ed. 2d 203; see also id., at 419-421, 113 S. Ct. 853, 122 L. Ed. 2d 203 (O'Connor, J., concurring); see also id., at 427-428, 113 S. Ct. 853, 122 L. Ed. 2d 203 (Scalia, J., concurring); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 159, n. 87 (1970). In this case too we can assume without deciding that such a claim exists, because even if so there is no due process problem. Osborne does not dispute that a federal actual innocence claim (as opposed to a DNA access claim) would be brought in habeas.")

8 See In re Davis, 565 F.3d 810, 827 (11th Cir. 2009)("Since Davis has failed to meet either of the statutory requirements found in AEDPA, 28 U.S.C. S 2244(b)(2)(B), we are constrained to deny him leave to file a second or successive petition. But because Davis still may file a habeas corpus petition in the Supreme Court, pursuant to its original jurisdiction, we shall continue the stay of execution for 30 days from the date of the filing of this opinion.")

9 See In re Davis, 130 S. Ct. 1 (2009)("The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination. The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence.")

10 See Davis v. Terry, No. 10-14534 (11th Cir. Nov. 5, 2010) (Only avenue of appeal open to Davis is directly to the U.S. Supreme Court). See also Lyle Denniston, Troy Davis Appeal Right Clarified, SCOTUSblog, Nov. 6, 2010.

11 In re Davis, 2010 U.S. Dist. LEXIS 87340, at 217 (S.D. Ga. Aug. 24, 2010) (Slip op. pp 1-62; pp 63-174).

12 See House v. Bell, 547 U.S. 518, 554 (2006) ("In addition to his gateway claim under Schlup, House argues that he has shown freestanding innocence and that as a result his imprisonment and planned execution are unconstitutional. In Herrera, decided three years before Schlup, the Court assumed without deciding that 'in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.' 506 U.S., at 417, 113 S. Ct. 853, 122 L. Ed. 2d 203; see also id., at 419, 113 S. Ct. 853, 122 L. Ed. 2d 203 (O'Connor, J., concurring) ('I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution').")