Lately there has been a lot of talk about not letting "them" have access to our courts through the writ of habeas corpus. In fact the New York Times published an article by Professor Joseph Hoffman and Nancy King last week suggesting that we need less access to habeas because there are a lot of petitions and very few positive results for prisoners. They suggest that "Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence." Really? And how, and with what resources will prisoners be able to show they are innocent? A defendant has no right to a lawyer past one appeal, or an investigator, or money for testing of physical evidence, so how can this be accomplished? I wonder if either Mr. Hoffman or Ms. King have ever actually seen what really happens in courts, and how often the rights of the accused are trampled with little regard for the accuracy of the trial. In fact, the Times published a number of letters to the editor (all critical of Hoffman and King's position) and one from retired Judge Fortunato said it all: "The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither."
That is my experience as well; that while in broad strokes the system gets it right more often than not, but the system tramples on "the little guy" far more often than the movies or television tell us, and that fixing a wrong is really difficult now, even for those everyone would agree deserve justice.
Let me talk to you about what has happened to the great writ -- about how those much vaunted "technicalities" that are supposed to let guilty guys walk free don't exist and it is technicalities that keep the innocent in. If an incarcerated person doesn't say everything at the right time and in the right way and follow every single technical rule of the state he is in, the odds are no federal court will help him or her. Unfortunately that person, perhaps innocent of the crime, will spend literally years litigating whether the federal court will even hear his case at all.
For a bit of background, habeas corpus has a long and detailed history, possibly dating as far back as the Roman Empire. The "Great Writ" came to our country by way of English Common Law, and is given explicit recognition in the United States Constitution. The reach and power of the writ in American courts coincided with two great events in U.S. history. The first was in 1867, immediately following the Civil War, when the writ was extended to state court defendants. This allowed Federal Courts to monitor State Court proceedings for the first time, thus insuring that the Constitutional rights of defendants were not violated. The second event was a series of decisions handed down by the Warren Court during the 1960's extending the protections of the Bill of Rights to defendants in state courts.
Don't worry -- that's all I am going to tell you about history, except to tell you that in 1996 a bill was signed by President Bill Clinton called the Anti-Terrorism and Effective Death Penalty Act (AEDPA) which made it much more difficult for anyone to win in federal court, so for example if a fact or a claim could have been presented and preserved at the trial level and wasn't, it's waived -- and you can't talk about it. If it could have been raised on direct appeal, and wasn't, it's waived -- and you can't talk about it.
You see someone charged with a crime only has a right to a lawyer for his trial and for one appeal. At that "direct" appeal, the lawyer is limited to talking about what happened in court during the original trial: was the judge correct when he admitted or refused to admit certain evidence? Were exhibits admitted that should not have been? Or a motion denied that should have been granted?
This is a problem though, if the defense lawyer is bad and does no work, no investigation or files no motions, or the state hides evidence -- which happens a lot more than you might think -- there will be little or nothing to appeal. Most appeals fail anyway because there is a presumption of correctness in favor of the way the trial was conducted. When a direct appeal is unsuccessful, the defendant may file post-conviction appeals -- or habeas corpus petitions -- based on constitutional issues. Those issues could include, for example, ineffective assistance of counsel, as well as the withholding of evidence by the prosecution. The defendant has no right to a public defender for these subsequent actions. That's why so many prison inmates draft their own habeas petitions, most of which fail. And that's why law school clinics are besieged with requests for free legal assistance. My clinic gets nearly a letter a day asking for help, help we can't give them. Part of the reason is that we don't have the resources to take on very many cases, but another big reason is that most if not all of these cases will fail because of technical matters, the lawyer's failure to object at the right time at trial, or filing papers late or not raising the issue -- for example the prosecution failing to turn over exculpatory evidence, but not every fact that sports this claim because the facts are in the possession of the police. Technicalities like these can literally get a defendant killed.
When one takes on a case at this stage, after the trial has been lost, as well as the direct appeal, you have to investigate the case as it should have been investigated in the first place. You have to get all of the trial transcripts, the former attorney's files, and the police reports. When launching work of this kind, you have to mentally juggle two opposing suppositions. You must assume everything the prosecution says is true while asking yourself what it means, in legal and factual terms. Simultaneously, you must assume that everything they say is a lie while asking yourself how can I prove it false? This is difficult and time-intensive work -- literally hundreds of hours -- and there are almost no agencies to do it, no public funds to support it, and very few people who can volunteer their time in this way.
I have written about one of these cases, a case where form triumphed over substance, in my book Angel Death Row. In it I call my client Deirdre Jennings. She was convicted and sentenced to life without parole for killing her boyfriend, purely on circumstantial evidence, and it became clear as we investigated she was in fact innocent. Her trial lawyer had done no work, and so didn't uncover the evidence of innocence that I and my students did, the detective who pursued her ignored other leads, and withheld nearly 500 pages of police reports including the fact that Deirdre's former boyfriend -- who had stalked and threatened her -- had taken and failed a polygraph about the murder. But the problem was that I didn't anticipate a change in the law in her case -- and so hadn't raised an issue in the lower courts that wasn't the law at the time. I am not kidding. So since I hadn't guessed the law would change, our successful grant of habeas corpus was overturned and I had to walk an innocent woman back into prison after four years of freedom during which she had become a counselor at a faith-based homeless shelter and finished her college degree in counseling. I took this loss hard. Deirdre's case spun endlessly through my mind. First, I would defend myself: how could I have known that we would draw the political panel that we did or that they would change the law? Then I would answer myself: I should have seen it coming. Then I would rail against the law: why have our courts elevated form over substance? I acknowledge the need for rules. Cases must end at some point, and a defendant shouldn't be allowed to hold issues in his back pocket and continue to bring claim after claim. The rules, however, have become byzantine to the point of irrationality. Contrary to popular belief, there are no "technicalities" that free a guilty defendant (unless one thinks that disallowing a confession beaten out of a suspect is a technicality) but there are many that imprison the innocent. Eventually I found a way to free Deirdre -- but not through the courts, which failed her and justice miserably, rather though a commutation of her sentence. She still remains a convicted killer on parole, even though she is innocent, and the real killer is still free.
That is why we need reform in habeas -- we need to go back to more rational rules, ones that allow a judge to look at the merits of the case and act accordingly. We need to return the writ to its former greatness and repeal the technicalities that bar the door to justice.