Ninth Circuit Panel: Innocence, Schminnocence. We Have Rules, You Know.

Wednesday, July 7th, 2010

A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected an Oregon man’s petition for habeas corpus relief (PDF). This despite acknowledging that the man has established actual innocence for the crimes for which he’s being imprisoned (sexual abuse and sodomy of a four-year-old). The reason: He was late filing his petition. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

New York criminal defense attorney Scott Greenfield comments:

…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.

Digg it |  reddit | |  Fark

71 Responses to “Ninth Circuit Panel: Innocence, Schminnocence. We Have Rules, You Know.”

  1. #1 |  JS | 

    Keep piling up the injustices America…there’ll be a payday someday.

  2. #2 |  Michael Chaney | 

    The important thing to remember is that we still have the right invade backward countries and show them how the American system is the best system.

    The scary thing is that we actually do have one of the best systems (as separate from the stupid laws which make us the number one imprisoning nation). Most criminal justice systems are farcical, even in developed countries. Look at Italy, for example.

    That said, we’re nowhere close to where we should be. The least smelly turd is still a turd.

  3. #3 |  Paul | 


    It is ALL farcical. Once you are arrested in America, you are in BIG trouble. The process is the punishment itself, and can bankrupt you if you struggle too much. Prosecutors pile on the charges and then ask you to plea bargain. Almost everyone pleas out and gets multi-year sentences (for felony level crimes), and for the few who go to trial, prosecutors usually have win rates around 85%.

    So again, if you are arrested for anything serious, you are going to jail. If you are arrested for anything minor, you are going to take your punishment because defending yourself is more expensive than the punishment itself.

    Our court system has a pretty good image, I’ll grant you that, but forget the process and look at the results: More than 2 million people in jail right now, millions more who have been in jail or attacked by the system. Just on sheer numbers, the odds of going to jail in America are much higher than they are in any other country.

    Other countries may have more obviously unfair systems than ours, but they send far fewer people to jail. So just ignore all the legal blather and hymns sung about the Majesty of the Law, and look at the final results.

  4. #4 |  Cynical in CA | 

    The justice system is BIG business.

  5. #5 |  BSK | 

    “No it isn’t. Demonstrable innocence should always be a “get out of jail” card. It works only for those who are demonstrably innocent and not every jailhouse lawyer. Pretty freaking simple dude, stop bing an apologist for the State.”

    Steve Verndon-

    I am, in no way, being an apologist for the state. In this case, yes, the obvious answer is that he should be out. ASAP. I’m talking to the process in general. Demonstrable innocence still needs a proper venue for demonstration, namely, the court room. How does one get into the court room? An appeal. How do we sort through the valid appeals (like this one) and the invalid ones? Maybe the argument is that there is no such thing as an invalid appeal. Quite possibly. But then we can’t gripe at the lengthy appeals process and the tax payer burden and the grinding down of the justice system. It seems that there should be some reasonable limits on the appeals process. But how is “reasonable” defined? And who enforces it? THAT is the trickiness I was referring to. Not necessarily this specific case.

    I realize folks, as some already have, will point to bigger issues with the general being of state and such. My critique is based on the current system we have now and tweaks to it, rather than tearing it all down (which may be the “correct” approach but just isn’t really reasonable).

  6. #6 |  Cornellian | 

    “To be fair to the Ninth Circuit, they’re simply applying the law as written, which pretty clearly lists 3 exceptions to the time limit, none of which are “actual innocence.”

    “Which is a damned good argument in favor of some “judicial activism” striking down the statute. Or at least amending it.”

    As tempting as it may be to go down that road to correct an obvious injustice, the price is letting legislators and presidents off the hook for enacting such laws in the first place. The more easily they can evade responsibility for situations like this by blaming the courts for failing to ignore what they wrote, the easier it is for them to continue enacting such laws in the future.

  7. #7 |  Paul | 

    The law is both what the law says, and what makes sense. The courts followed the law as written, but failed the common sense test. As an equal branch of the government, they have the power to apply common sense in the pursuit of justice.

    Alan Dershowitz, in criticizing a supreme court ruling in favor of “finality” gave an argument (I paraphrase) “A man is convicted of murdering his wife, and exhausts all his appeals. Some time later she is found alive, and the man returns to the court with his wife and says, here, see! Here she is, alive and well! I am innocent, you must release me. But this supreme court is saying, yes, we see her, but the fact remains you were still convicted of murder, and you exhausted all your appeals. So you must complete your sentence.”

    And that is exactly what we have here.

  8. #8 |  Z | 

    Hey Radley you liked that one? Check out this 9th Circuit gem:

    At least this one had a dissent that read, in part:

    “Today we become the only court in the country to hold that a state court may adjudicate a constitutional claim ‘on the merits’ by overlooking it, and then have its carelessness rewarded with AEDPA’s presumption that its adjudication was good enough for government work. We defer to a decision the state courts never made to reach a result that the state’s highest court disagrees with. We fail to give effect to the plain meaning of the Confrontation Clause—one of the best-established principles of Anglo-American law—on the ground that it isn’t ‘clearly established.’ Any one of these errors would be remarkable, but their combination produces a truly spectacular miscarriage of justice.

    The purpose of AEDPA is to allow state courts to operate in good faith. So, in the ordinary case, when a defendant has an unbiased judge and the state courts take his constitutional claims seriously, we must defer even if we disagree on the merits. But this isn’t an ordinary case. The state trial judge coerced a key witness into testifying and the state appellate judges never addressed the key claim on appeal. Cases like this are the reason federal habeas exists. When a federal constitutional claim falls through the cracks of a state’s criminal justice system, federal courts must be there to catch it. No one else can. Charles Murdoch certainly deserved better from the California courts. Ultimately, though, it is we who surely did let him fall.”

  9. #9 |  Foobs | 

    This is the obvious outcome of seeing the role of judges as “calling balls and strikes”. By the balls and strikes analogy, the court made the right decision (which, as Balko notes, says all that needs to be said about that view of judges).

    This case is also the next logical step after undermining the right of jury nullification (which is the right both of jurors and defendants). First, the jurors are to call balls and strikes without respect to the claims of justice, now the judges are, too. It is the Milgram experiment: you can create a context in which people convince themselves that the obviously wrong thing to do is the right thing.

  10. #10 |  Foobs | 


    The problem isn’t that you need to think like a politician, the problem is that you need to think like a voter. When the US collapses, the American peoples’ willingness to blame politicians for their own choices will be the #1 cause.

  11. #11 |  Dave Krueger | 

    #59 Foobs

    This is the obvious outcome of seeing the role of judges as “calling balls and strikes”. By the balls and strikes analogy, the court made the right decision (which, as Balko notes, says all that needs to be said about that view of judges).

    This case is also the next logical step after undermining the right of jury nullification (which is the right both of jurors and defendants). First, the jurors are to call balls and strikes without respect to the claims of justice, now the judges are, too. It is the Milgram experiment: you can create a context in which people convince themselves that the obviously wrong thing to do is the right thing.

    That may be the most astute observation of all.

  12. #12 |  JRM | 

    I think actual innocence should be an exception, but the Greenfield quote misreads the opinion and the law.

    The court explicitly talks about governmental interference in filing (tolls the statute of limitations) and of finding new information through due diligence (permits filing late.) The court explicitly says that Lee *does not make those claims.*

    Thus, Greenfield’s quote and your quoting of it seem misguided.

  13. #13 |  albatross | 

    Michael Chaney:

    How do you know whether the US or Italian justice system is more accurate? Are there some kind of repeatable studies that can determine this? It doesn’t seem like the sort of thing argument by anecdote can determine.

    We know the US locks lots of people up, as a policy decision. What’s not clear to me is how we’d know what fraction of those people are actually not guilty of the stuff they plead guilty to or were convicted of. And it seems like plea bargaining introduces a bunch of added variability to this–it might make sense for you to plead guilty to (say) drug possession, even when you didn’t have any drugs on you, to get out of the stiffer sentence for the armed robbery you were actually involved in when you were arrested. Does that count as the justice system getting it right or wrong? A criminal defense attorney I know has told me that, as best she can tell, nearly all her clients are lifelong criminals–sometimes not guilty of the specific crime for which they’re charged, often (arguably) inappopriately charged, often mistreated by the cops, but almost always actual criminals, engaged in some level of crime (beyond casual drug use) as a way of life. When you convict a car thief, but get the details wrong (he stole a different car than you think he stole on that night), is it a good or bad conviction?

    The best window on this we have, as far as I know, is DNA evidence occasionally getting someone off death row and basically proving them innocent. I think, in order to get a first cut estimate on how accurate those trials are, you’d need to look at a randomly-selected set of cases (like rape/murder) where evidence was collected that allows DNA testing, and where DNA testing would pretty conclusively say whether the person was guilty or innocent. And then, you’ d need to run the test on every one of those cases, and see what fraction of convicts were proven innocent vs guilty. That would give you a first cut estimate of how accurate conviction was in these cases. Has anyone ever done this?

    Simply pointing out that there have been many such cases doesn’t give us a good estimate of the fraction of innocent people falsely convicted, because you’re probably more likely to do all the work of appeals and DNA tests if there’s strong reason to think the guy is innocent. It gives us a lower bound on the innocent fraction, but not a very good one.

    It seems like someone should be investigating this in depth, because it’s really important. If we can’t tell how accurate our criminal justice system is, how can we work out whether it needs improvement, what rules work best, etc.?

  14. #14 |  lunchstealer | 

    Why the hell hasn’t this guy been pardoned? Why didn’t the prosecutor’s office offer a settlement in which it does not accede to any demands, but just drops all charges and compensates him for wrongful arrest?

    These people have discretion, why do they never use it?

  15. #15 |  Erin | 

    I don’t know. On the one hand, you’re saying that when the legislature abdicates its responsibility to enact good laws, unelected, co-equal judges who aren’t answerable to the people and have their own defined role should sweep in and fix the legislature’s mistakes, despite having taken an oath to uphold the laws enacted by the legislature. On the other hand, the guy is f—ing innocent.

    I think the right thing for a judge to do in this circumstance would be to vote to overturn the verdict, and then immediately resign his judgeship for violating his oath ruling contrary to the law. Good luck finding a judge who’d actually do that.

  16. #16 |  Dave Krueger | 

    While it sounds nice in theory, the fact is that one branch of government (the judiciary) is never going to be a serious defense against the abuse of power by another branch of government.

  17. #17 |  Cyto | 

    On further reading – the lower court does not appear to find that he is “actually innocent”, rather that he has enough evidence to warrant another trial. The appellate decision does not make this clear, but it appears that he has things which might call a conviction into question. The lower court decision lists evidence which taken at face value seriously calls into question the notion that “he didn’t do it”. Maybe he could have gotten off with better defense and some additional evidence supporting that defense, but it doesn’t look like he actually, really didn’t do it (which is what most of us understood from the first reading).

  18. #18 |  TheLastBrainLeft | 

    Patterico does a good job at explaining why Balko is dead wrong here:

    Seems pretty straightforward. Let’s not start acting like Olbermann here and stick to positions the facts do not support.

  19. #19 |  shipwreckedcrew | 

    So far as I can tell, Balko has decided that this guy is innocent because an 86 year old senior status federal district judge, who did not preside over the trial, has determined more than a decade after the fact, that the evidence upon which the jury convicted the guy, is not sufficient to satisfy his tastes.

    Notwithstanding the fact that 12 jurors who actually heard the evidence and evaluated the witnesses, and the judge who presided over the actual trial, convicted the guy.

    Nor the fact that his conviction was upheld on appeal in state court, and he didn’t even pursue an appeal to the Oregon Supreme Court.

    Yet, one octogenarian judge says the evidence — not new evidence mind you, but evidence that was heard by the jury at the trial of the case — suggests the guy is “innocent” so Balko proclaims here that the guy is INNOCENT, yet the 9th Circuit is perfectly willing to allow him to remain in jail.

    Radley — Abu Mumia Jamal’s legal team has an opening for you.

  20. #20 |  Innocence « David Knights’ Weblog | 

    […] There ought to always be an actual innocence exception to an bar on challenging a conviction.  The Ninth Circuit says otherwise. Leave a […]

  21. #21 |  Innocent? 9th Circuit doesn’t care. | Miscellaneous Heathen | 

    […] Radley has more, but it should be noted that the most prominent booster of the “we don’t care if you’re innocent as long as you had a trial” view is, of course, Scalia: […]