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.

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

  1. #1 |  J | 

    Claiming actual innocence and establishing it are two different things.

  2. #2 |  Radley Balko | 

    Except that opinion acknowledges the man established actual innocence.

  3. #3 |  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.” Blame the legislators who enacted the law and the president who signed it, not the courts that are compelled to adhere to it.

    The decision notes that state concealment is one of the exceptions, but the petitioner doesn’t appear to have claimed that that exception applies here.

  4. #4 |  SJE | 

    Here is the nub of the problem: in the old days of common law jurisprudence, the judges would come up with a clever way to say “screw the statutes” and pronounce him innocent. For example, that the statute of limitations does not apply to cases where their is prosecutorial misconduct.

    But, of course, that is now seen as “activist judges.” Especially coming from the 9th Circuit.

    Personally, I would tell the judges to have the balls to set the man free and to remind Oregon that they are a co-equal branch of the Fed government. I’d rather be overturned by the Supreme Court and let them, the prosecutors and law makers look like douchebags.

  5. #5 |  Chris K. | 

    Rope

  6. #6 |  Radley Balko | 

    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. The whole idea of judicial review is pretty much meaningless if it can’t overcome a law that would allow an provably innocent person to remain in prison.

  7. #7 |  ClubMedSux | 

    Where’s the governor? If I were him/her, I would have the pardon signed tomorrow. Actually, today.

  8. #8 |  Nick T | 

    Radley, do you have any more info on how this Defendant proved his innocence? The court seems to omit this information, and I’m wondering how exactly that was accomplished.

  9. #9 |  djm | 

    ClubMedSux,

    Are you soft on crime? The man is a convicted child rapist.

  10. #10 |  Charles | 

    The Supreme Court already handled this eighty years ago, in one of the Scottsboro cases (Patterson vs. Alabama). TO quote myself: “Chief Justice Hughes, writing for the majority, claimed that the court could not only address errors in legal judgment, but also see that justice was met. Implied in the ruling was the threat that, if the Alabama high court failed to overturn the verdict, the Supreme Court would review it again in the interest of justice.”

    http://encyclopediaofalabama.org/face/Article.jsp?id=h-1899

  11. #11 |  J sub D | 

    The term “justice system” is a misnomer. The system is not about justice, it never has been. Not in the US, not in Iran, not in Babylon. Sometimes justice happens in our legal system, but that is merely happenstance.

    Recognizing that reality alternately drives me to despaired resignation and impotent rage.

  12. #12 |  Al V | 

    Correct me if I am wrong here but the opinion shows Ineffective counsel, confusion of the child with a known molester and the defendent, and unreliable testimony of the victim.

    Reading the opinion, Lee is asserting actual innocence as the basis for his complaint, and the court responds in kind, but isn’t that different from acknowledging that the petitioner IS actually innocent? I think he is making the case that he wants a new trial to prove his innocence and the court is denying that trial.

    Taken together it is certainly possible that he is innocent, but I don’t see anything like a DNA test or other evidence (like a confession from the known molester) that says Lee really is innocent of the crime.

  13. #13 |  BSK | 

    So, apparently, in a court of law you can be found: guilty, not guilty, not guilty be reason of mental defect, and… innocent, but late.

  14. #14 |  ClubMedSux | 

    Al V-

    Here’s what the opinion says:

    “After conducting several evidentiary hearings over the fall and winter of 2008, [the trial court] granted the petition for a writ of habeas corpus on March 24, 2009, finding that Lee established actual innocence and ineffective assistance of counsel and ordering Oregon to release or to retry Lee.”

    (emphasis added). I think that sentence speaks for itself regarding Lee’s guilt or innocence.

  15. #15 |  Elemenope | 

    Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief.

    The court speaks for itself. For my part, I need to throw up after reading that case.

  16. #16 |  Outcomes Over Intentions | Whiskey and Car Keys | 

    [...] Around here we’ve certainly seen what happens when the veil of intentions get pulled back from education policy. Families get hurt, children get screwed, and vested interests get protected. If you thought this was a unique phenomenon surrounding teachers unions, you’re mistaken. Radley Balko explains: [...]

  17. #17 |  Charlie O | 

    This case is why you will see me in a morgue before you’ll ever see me in a criminal court in the United States again.

  18. #18 |  Marty | 

    he didn’t file his tps report…

    fucking bureaucrats are killing the republic.

  19. #19 |  Joe | 

    Scary stuff.

    First, you would think the government/prosecutors would just conceed the point and fold. Yet they are arguing against common sense. And Eric Holder is excercising discretion in lettting militant Black Panthers off the hook when they are intimidating voters.

    Second, the 9th Circuit pretending that they do not have authority to change this is dishonest. Obviously they are using this guy to make a point. Sorry that it will cost him a couple of more years, but it looks like his lawyer will be arguing to the Supreme Court.

  20. #20 |  Wesley | 

    I can’t really be too angry at the 9th Circuit — they are only applying the law they are given with the case before them. If anything, blame the STATE for appealing the district course with the argument “innocent, sure, but he filed it late!” The prosecutor actually has explicit discretion, much more so than the courts.

    I have to agree with the court that an “innocent showing” exception is not anywhere in a statute which details explicit exceptions. That being said, I am kind of surprised (and disappointed) that the 9th Circuit didn’t come up with an “equitable tolling” rational, which actually does have some precedent — especially if the defendant is arguing the delay in filing was due to ineffective assistance of counsel.

  21. #21 |  Robert | 

    This is why the pardon power was given to the executive branch. However, finding a politician that would pardon a convicted (even if innocent) sex offender would be almost impossible, especially if they are going for any other public office. Can you imagine the wille horton style ads that would result?

  22. #22 |  Waste93 | 

    Since he’s established ‘actual innocence’ and it is recognized by the court. Does he now also have a false imprisonment case against the state since he has been declared innocent by a court?

  23. #23 |  Dave Krueger | 

    My biggest fear is that we are all just characters in a Franz Kafka novel. While some may laugh at such a suggestion, the body of evidence supporting it becomes increasingly overwhelming with each passing day.

  24. #24 |  Aresen | 

    @ Elemenope | July 7th, 2010 at 11:50 am

    That is depressing.

    Aside from the usual IANAL qualifier, I would have assumed that punishing someone who is actually innocent of a crime would be the ultimate definitive case of “cruel and unusual”.

  25. #25 |  Dave Krueger | 

    So, if he were on death row, would they then just go ahead and execute him?

  26. #26 |  John M | 

    #21, a Habeas petition essentially IS a false imprisonment claim. It is civil in nature, but the remedy sought is release rather than damages.

    I share the frustration of most of the commenters, but I think there are more worthy targets of scorn than the Ninth Circuit about this state of affairs: the US Supreme Court, which has dramatically curtailed the usefulness of the Habeas process; the prosecutors, who seem intent on jailing a man who, per the District Court, has established actual innocence; the scores of gutless governors and presidents who will not use the pardon power, which is an essential check on the legislature and the judiciary. Finally, I think this one falls in the lap of the people. Most Americans have been so terrified by the sensationalist media that very few of us will care at all about the indefinite imprisonment of someone who might have been a child molester, regardless of how strong the evidence of his innocence is. Most Americans will never be facing a lengthy prison term and are uninclined to sympathize with those who are, even if they are imprisoned under suspicious circumstances.

    The Ninth Circuit is an intermediate appellate court that is bound by statute and by precedent. I wish they could have found a way to do the right thing here, but I’m going to focus my ire on those who made the law and won’t change it, not those who apply it.

  27. #27 |  Dave Krueger | 

    I’m particularly surprised by this given that it’s the ninth circuit which has a long history and makes no secret of its willingness to over-ride both precedent and statute. I would have been less surprised if they had ruled in the defendant’s favor even if they were sure they would be overruled by the Supremes.

  28. #28 |  David | 

    Should courts make illegal judgments to do justice? As I think one (former?) Supreme Court Justice noted, there are lots of things governments can do that are stupid but are still Constitutional.

    I am a lawyer, but I do think that in extreme cases (actual/factual innocence) that notwithstanding what the Supreme Court said, execution (or significant imprisonment especially with a record as a child molester) when one is provably innocent, is cruel and unusual punishment and should not be allowed for that reason. While obviously disagreeing with him on some things, I am in sympathy with the late Justice Thurgood Marshall about the courts being the “best” of the branches of government to get at least some kinds of justice.

    However, the contrary argument does make some sense: if one holds that actual innocence is an exception to time limits, then ANYONE arguing they are “actually innocent” can tie up courts and appeals for years with repeated motions and reopened motions and each time the evidence as to whether or not there is innocence has to be considered anew.

    Even if one doesn’t see that as a risk/problem (given that one circuit has an “actual innocence” exception and seems to be doing fine, I don’t think it’s that much of a problem), elected officials (for Federal habeas, Congress) could (and should) fix this with a quick amendment if they weren’t so busy earmarking/conducting inquiries into steroids in sports/whatever.

    Or on the state level, this is the classic situation – actual/likely innocence – where a pardon would be appropriate. But of course, no-one actually wants opponents to be able to say “Governor pardons convicted child molester” so no-one does anything.

    So this is an example where both state and federal elected officials are “guilty” by inaction.

  29. #29 |  SJE | 

    Not trying to contradict my earlier posting, but we ALSO need to be careful of judicial activism, which can lead to the same unintended consequences as activist politicians. It also lets politicians off the hook: e.g. most western countries permit abortions, but got there through the ballot box, and without the lingering resentment.

    The current “judicial restraint” model of the Supreme Court grew out of concern that the Warren and Burger Courts of 60s and 70s would make up any law as long as they liked the result, and that the Court overstepped its judicial bounds. At least with Scalia’s “originalism” you have a middle path of resorting to the plain text of the constitution, as much as possible: see the recent affirmation of the Second Amendment.

  30. #30 |  Dave Krueger | 

    Ok, I read more of the opinion, so I can see it’s all about expediency. If every innocent Tom, Dick, and Harry got a retrial, the system wouldn’t be able to handle it. These cut-offs permit the justice system to relieve themselves of dealing with actual innocence after a certain time frame so they are free to prosecute low level non-violent drug users and maintain the U.S. lead in the great race to lock up more people than any other country.

  31. #31 |  Dave Krueger | 

    I think this is the “Let God Sort ‘em Out” system of justice.

  32. #32 |  John M | 

    #27: that’s generally true about the Ninth Circuit, but it does depend on the panel. I don’t practice in the Ninth Circuit and don’t know much about these three judges, but O’Scannlain and Wolle are Reagan appointees and Smith is a GWB appointee. A different panel or an en banc review might yield a different result.

  33. #33 |  t1 | 

    Actually, there is no ruling of innnocence. The opinion states: “After conducting several evidentiary hearings over the fall and winter of 2008,
    it granted the petition for a writ of habeas corpus on March
    24, 2009, finding that Lee established actual innocence and
    ineffective assistance of counsel and ordering Oregon to
    release or to retry Lee. Lee v. Lampert, 607 F. Supp. 2d 1204,
    1221-22, 1226 (D. Or. 2009).”

    This isn’t a trial and a finding of innocence, or more accurately, “not guilty.” If he had been found “innocent” it would be impossible to retry him b/c of double jeopardy. What this actually means, I suspect, is that the district court believed there was sufficiently credible evidence of actual innocence to warrant release or retrial.

    Without deadlines, out legal system would grind to a halt.

  34. #34 |  Mattocracy | 

    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. USA! USA! USA!

  35. #35 |  EH | 

    More evidence that a mere accusation of child molestation can ruin someone’s life.

  36. #36 |  BSK | 

    This is ultimately a tricky situation. If there were no limits on appeals, we’d decry the endless exhaustion of them as a gleeful waste of taxpayer money that ought to be halted. Then a situation like this arises where clearly the limits are working against the interests of justice (and sanity and logic and a general preference for not fucking up). Obviously, the solution is to use appropriate discretion, and to limit appeals where they become extraneous and illegitimate and let the real ones unfold whenever they are filed. But who do we give that discretion to?

    Damned if we do, damned if we don’t.

  37. #37 |  Edmund Dantes | 

    I know. How much it would suck for us to have to take the time, effort, and money to establish someone’s guilt. It’s better off we just go with “good enough for government work. Throw away the key already”. I mean if we really had to face the cost, effort, and time needed in enforcing all these stupid laws we might actually realize how ineffective and stupid some of them are. We might even realize how stupid it is to tie up all our time and effort in stupid low level drug cases, etc.

    It’s taken time, but they’ve finally scared the crap out of enough people with the War on Drugs, terror, etc to reverse the idea in the axiom of (paraphrased) it’s better to let 9 guilty men go free then deprive one innocent person of their freedom.

  38. #38 |  Steve Verdon | 

    Where’s the governor? If I were him/her, I would have the pardon signed tomorrow. Actually, today.

    Clubmedsux,

    Yeah, but see he is a child rapist and the children never lie and the government never screws up. So, pardoning him means you are effectively pro-child rapist and we can’t have that.

    Jesus our country is pretty fucked up.

  39. #39 |  Steve Verdon | 

    BSK,

    This is ultimately a tricky situation.

    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.

  40. #40 |  Cynical in CA | 

    The solution to “our country is pretty fucked up” is to admit that “our country” is too damn big and break it up into tiny little pieces.

    Then I wouldn’t have to give a shit what happens in Oregon, because Oregon probably wouldn’t exist anymore. I’d be living in the little independent republic of Orange County or whatever and I wouldn’t have to be dragged into this “America” bullshit anymore.

    Frankly, things are rather calm and peaceful and orderly in my little city of Tustin. The Republic of Tustin has a nice ring to it. Nothing ever really goes wrong there, certainly nothing like demonstrably innocent people being railroaded into jail.

  41. #41 |  Waste93 | 

    “The Ninth Circuit is an intermediate appellate court that is bound by statute and by precedent.”

    Considering the number of slap downs from SCOTUS I’m not sure that is accurate.

  42. #42 |  In Which I Disagree With Radley Balko | The League of Ordinary Gentlemen | 

    [...] I think he’s barking up the wrong tree on this one.  He writes: A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected [...]

  43. #43 |  Dakota | 

    @33

    “Without deadlines, out legal system would grind to a halt.”

    Good then maybe they’d be forced to stop arresting 800,000 people a year for possetion of a plant.

  44. #44 |  hamburglar007 | 

    I have no apologizes for this thread jack.

    http://www.reuters.com/article/idUSTRE6622I420100703

  45. #45 |  Lior | 

    Radley: I think you are barking at the wrong tree here.

    Richard Lee is being held in prison by the State of Oregon, despite his innocence. We should therefore be outraged by the actions of that state, and the courts thereof should grant his habeas request.

    Since the state of Oregon is denying him justice, Mr. Lee has asked the Federal Government to intervene and rescue him. When Congress amended the current federal Habeas law (by a draconian measure known as AEDPA) it said that such rescues are only available for those who ask for them within a year. Innocence or not doesn’t matter.

    The Feds are the latest to not help this guy, so you are mad at them (especially since AEDPA is draconian). But still the real evil is being perpetrated by the State of Oregon. It simply shouldn’t be necessary to appeal to a federal court in order to get this kind of relief.

    One should also consider the notion jailing an innocent man per se deprives him of his Due Process rights. In that case he might have a §1981 case?

  46. #46 |  ClubMedSux | 

    #9 | djm | July 7th, 2010 at 10:55 am

    ClubMedSux,

    Are you soft on crime? The man is a convicted child rapist.

    #38 | Steve Verdon | July 7th, 2010 at 1:41 pm

    Clubmedsux,

    Yeah, but see he is a child rapist and the children never lie and the government never screws up. So, pardoning him means you are effectively pro-child rapist and we can’t have that.

    My apologies, guys. It’s hard for me to stop thinking like a human being and start thinking like a politician.

  47. #47 |  Kevin3% | 

    “they don’t care.”

    they don’t have to care…until one day karma comes along.

  48. #48 |  MadRocketScientist | 

    A rebuttal
    http://www.ordinary-gentlemen.com/2010/07/in-which-i-disagree-with-radley-balko/

  49. #49 |  Nick | 

    But who do we give that discretion to?

    More relevant: should anyone have a monopoly on “that discretion”? The answer should be obvious.

  50. #50 |  Procedure v. Innocence (ctd.) | The League of Ordinary Gentlemen | 

    [...] innocence” on the grounds that the statutory language the 9th Circuit upheld is clear, Radley Balko writes: Which is a damned good argument in favor of some “judicial activism” striking down the [...]

  51. #51 |  JS | 

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

  52. #52 |  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.

  53. #53 |  Paul | 

    Michael,

    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.

  54. #54 |  Cynical in CA | 

    The justice system is BIG business.

  55. #55 |  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).

  56. #56 |  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.

  57. #57 |  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.

  58. #58 |  Z | 

    Hey Radley you liked that one? Check out this 9th Circuit gem: http://www.ca9.uscourts.gov/datastore/opinions/2010/06/21/05-55665.pdf

    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.”

  59. #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.

  60. #60 |  Foobs | 

    ClubMedSux:

    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.

  61. #61 |  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.

  62. #62 |  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.

  63. #63 |  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.?

  64. #64 |  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?

  65. #65 |  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.

  66. #66 |  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.

  67. #67 |  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).

  68. #68 |  TheLastBrainLeft | 

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

    http://patterico.com/2010/07/10/radley-balko-mischaracterizes-court-decision/

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

  69. #69 |  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.

  70. #70 |  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 [...]

  71. #71 |  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: [...]

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