About two weeks ago I wrote about Cory Maples who is facing execution because the mail wasn't delivered to his lawyers on time. (A Technical Death). Perhaps some readers thought I was exaggerating about the black hole into which a prisoner, even one who is innocent, can fall and never escape. As I explained, the concept is called procedural default in the law. The idea is that the defendant should have to follow the rules of the state he is in, file things on time, and present every claim and fact to every state court before he can present it to a federal court, or to a higher court in the state. There are good public policy reasons for this - the laws should be respected, rules followed and state courts given the opportunity to correct their own mistakes. However, the rigid rules adopted in 1996 which made it exceedingly difficult for a federal court to even consider the merits of a case -- even of someone who may be innocent -- keep coming up with absurd results.
Here is another one. In Friedman v. Rehal, decided by the United States Court of Appeals for the Second Circuit on August 16th , that court held that because Mr. Friedman did not present his claim within the prescribed one year limitation -- believing incorrectly that by trying to have his case heard by the new York Court of Appeals he was still within time -- they couldn't help him, even though evidence showing that detectives forced children to make false accusations against the then nineteen year old Mr. Friedman was withheld by the state, the trial judge threatened him to get him to plead guilty and said she believed him guilty before there had been one piece of evidence presented, his trial lawyer was unaware that he could enter a no-contest plea, and there was not one piece of corroboration that the alleged sexual abuse ever happened. The case was made famous by the documentary Capturing the Friedmans, released in 2003, which had taped interviews with alleged victims who told horrific stories of being forced to accede to the police insistence that abuse had occurred. These facts were withheld by the state -- which is against the law.
The Court expressed its frustration with the rules and said "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner's conviction was obtained. The magnitude of the allegations against petitioner must be viewed in the context of the late-1980's and early-1990's, a period in which allegations of outrageously bizarre and often ritualistic child abuse spread like wildfire across the country and garnered world-wide media attention. Vast moral panic fueled a series of highly-questionable child sex abuse prosecutions." The Court then goes through the facts of the flawed investigation. From their opinion, you will see the lack of corroboration, lynch-mob mentality of the community and inappropriate biases exhibited openly by the supposedly neutral trial judge which should make any rational reader shudder that an investigation of this sort could result in thirteen years (so far) of incarceration of someone almost certainly innocent. The Court ends the opinion by suggesting that the state prosecutors do the right thing for Mr. Friedman, because, they say they cannot and then the Court denies him any relief.
Yes, you heard me, they deny relief. Did you know that the United States Supreme Court has said it is not unconstitutional to execute someone who is innocent but doesn't have any other legal claims? Well they have -- with a caveat from former Justice O'Connor that if there was a "truly" innocent person, they would do something. What that might be isn't clear.
Three judges of the United States Court of Appeals all agree that Mr. Friedman did not get justice. It appears not only did he not get justice, but there may never have been a crime at all. Since Mr. Friedman has fallen into the web of technical rules, the courts can't reach him, or justice. The technicalities of habeas law prevent it. Reform of these laws needs to happen, for Mr. Friedman and the other possibly innocent persons thrashing about in this terrible technical web.