Overturning Wrongful Convictions Research Paper

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DNA has provided incontrovertible proof that individuals can be convicted for crimes they did not commit. The DNA exonerations now stand at 302, with 18 released from death row. Since DNA evidence is estimated to be present in only a small fraction of cases, at best 10–20 %, it is likely that the major systemic issues that are responsible for those wrongful convictions (mistaken eyewitness testimony, faulty forensic evidence, false confessions, lying informants, government misconduct, and ineffective defense counsel) also infect at least some of the cases for which proof of innocence is confined to more traditional sources such as confessions by actual perpetrators, recantation of witnesses, and newly discovered evidence. For example, one study found that 196 non-DNA exonerations occurred from 1989 to 2003 (Gross et al. 2006), and the Death Penalty Information Center’s website indicates that since 1973 a total of 140 people sentenced to death have been released from death row with evidence of their innocence (Innocence and the Death Penalty, accessed February 5, 2012, http://www.deathpenaltyinfo. org/innocence-and-death-penalty). The most recent report in June 2012 of all exonerations based on innocence since 1989 identified the number as 891 (Gross and Shaffer 2012). However, this excludes an estimated 1170 defendants whose convictions were dismissed in 13 “group exonerations” resulting from major police scandals. For example, the police scandals in such places as Los Angeles (California) and Tulia (Texas) produced more than 200 exonerations, with the vast majority of overturned convictions resulting from guilty pleas, rather than trials. Wrongful convictions cast doubt on the reliability and fairness of the criminal justice system and expose public safety failures because perpetrators, who include serial rapists and murderers, remain at large to pursue new victims. Thus, all of us, not just wrongfully convicted defendants, are harmed by these systemic breakdowns. Yet, because the criminal justice system depends on finality of judgment, it was exceedingly rare to obtain postconviction relief on the grounds of innocence prior to the advent of DNA testing.

While statutes now afford more opportunity to challenge convictions based on DNA testing, old attitudes die hard, and Chief Justice Roberts pointed out in District Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), that the mere existence of new technology cannot mean that no case is final. Moreover, for cases without biological evidence, the ability to obtain relief has changed little. This research paper will present an overview of postconviction remedies involving claims of innocence (Raeder 2009) and the requirements that must be satisfied to receive compensation for being wrongfully incarcerated (Raeder 2008).

Postconviction Requests For DNA Testing To Establish Innocence

Appellate remedies in the American criminal justice system are designed to ensure that defendants receive a fair trial, not to second-guess jury verdicts in the absence of insufficient evidence supporting a conviction. Finality concerns have long dictated very short time windows for new trial motions. Such statutes of limitations often expire less than 1 year from conviction, standing in stark contrast to 13.5 years, which is the average length of time served by DNA exonerees. With the advent of forensic DNA testing came the recognition of the inequity of a criminal justice system that had no apparent remedy to free individuals who were clearly factually innocent. To remedy this problem, the Innocence Protection Act (IPA), 18 U.S.C. } 3600, was passed in 2004 to permit DNA testing for federal inmates who assert their innocence under penalty of perjury and meet a number of detailed criteria, including:

The evidence was not previously tested, and the applicant did not knowingly or voluntarily waive the right to request testing.
The evidence was tested, but current methods are substantially more probative.
The evidence to be tested is in the possession of the government, has been subject to a chain of custody, and retained under conditions sufficient to ensure that it has not been substituted, contaminated, tampered with, replaced, or altered.
The evidence supports a theory that is not inconsistent with any affirmative defense at trial.
The proposed testing would provide new material evidence that would raise a reasonable probability that the applicant did not commit the offense.
Identity was an issue at trial.
The applicant has provided a DNA sample for purposes of comparison with profiles in the FBI database.
The request is timely, with detailed criteria for determining rebuttal presumptions of timeliness and untimeliness.

The court can appoint counsel for the applicant, issue a preservation order to the government, and direct the government to pay the cost of testing for indigent applicants. Inculpatory results have a number of potentially negative consequences for the applicant who may be held in contempt, receive a sentence of 3 years consecutive to the current sentence if convicted of making false assertions in a proceeding, be required to pay for the testing, lose good time, be denied parole, and if relevant have the results sent to state officials.

In contrast, exculpatory results excuse any time bar that would otherwise preclude a new trial or resentencing motion. The new trial motion is granted if the DNA test results, considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), establish by compelling evidence that a new trial would result in an acquittal. The statute also indicates it is not an exclusive remedy and does not count as a habeas corpus motion for purposes of evaluating the existence of successive motions. A writ of habeas corpus is the typical way that prisoners challenge the lawfulness of their detention when they have exhausted the right to directly appeal from their conviction. Beyond being a model for states, the IPA also actively encouraged states to follow its dictates by providing DNA grants to law enforcement in states that adopt “comparable” postconviction DNA testing statutes (118 Stat. 2285).

By 2011, 48 states had adopted such statutes (Brooks and Simpson 2011). However, some states have enacted restrictions that hinder applicants from obtaining testing, such as prohibiting applications by individuals who plead guilty, who admit guilt to obtain parole, or whose attorneys did not request testing; limiting the crimes for which relief can be sought; applying only to individuals sentenced to death; requiring applicants to establish a “likelihood” rather than a “possibility” that the testing will be exculpatory, or clear and convincing evidence that the new results would be significantly more discriminating than the results of previous testing; and failing to provide adequate safeguards to preserve biological evidence. A few states even retain a statute of limitations in their DNA testing statutes.

Even the federal statute is limited to cases in which identification was an issue at trial and contains chain-of-custody requirements that if interpreted literally may be virtually impossible to meet. Judge Higginbotham reversed a district court’s denial of testing that was based on a claim of insufficient chain of custody, explaining “we cannot place upon the defendant the burden of proving history while it is held in government custody. To do so would create an entrance gate so difficult to enter as to frustrate the core objective of the statute” (United States v. Fasano, 577F.3d 572, 577 (5th Cir. 2009)). In addition, Garrett (2008a, b) found that 20 % of exonerees did not obtain DNA testing because of the failure of defense counsel to request it. Although this failure could bar an applicant from obtaining testing, it may not meet the test established in Strickland v. Washington, 466 U.S. 668 (1984), for incompetent counsel, if a strategic reason for the failure can be articulated.

In District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court refused to recognize a constitutional right to obtain postconviction DNA. Osborne recognized that “DNA testing can provide powerful newevidence unlike anything known before” (129S. Ct. at 2916) and noted the dual role of DNA in exonerating wrongly convicted people while confirming the convictions of “many others” (Garrett 2008a, b). However, the court could not overcome its apprehension about the effect of DNA on finality. The Osborne majority ceded DNA postconviction relief to state and federal legislators, claiming for the most part that these legislators had already enacted statutes with varying requirements to provide relief. In addition to finding no procedural due process claim, Osborne also rejected an invitation to create an “untethered” substantive due process right to DNA evidence for purposes of testing. Both finality concerns and a “reluctan[ce] to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA” (Garrett 2008a, b) doomed the plea for a specific right to obtain DNA testing. The court cited the prompt response by states to the “challenge” to the criminal justice system posed by DNA technology as reason to reject the court’s preempting the field and forestalling public debate about appropriate remedies.

While Osborne recognized that DNA has confirmed that the system “cannot be perfect” (Garrett 2008a, b at 2323), it was not ready to craft a judicial remedy for the systemic flaws exposed by DNA. More recently, in Skinner v. Switzer, 131S. Ct. 1289 (2011), the court held that a convicted state prisoner seeking DNA testing of crime-scene evidence could assert a procedural due process claim in a civil rights action under 42 U.S.C. } 1983 challenging the Texas postconviction DNA statute. Success in his suit for DNA testing would not “necessarily imply” the invalidity of his conviction since results might prove inconclusive or they might further incriminate Skinner. Therefore, the court found that he did not have to proceed by habeas corpus action, which had significant barriers to relief, though constraints imposed by the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, still apply.

Other than by enacting new statutory remedies, the best way to avoid the barriers to DNA testing may lie with prosecutors, not the courts, even though some prosecutors refuse to admit that they could have been responsible for convicting an innocent person (Orenstein 2011). A 2008 amendment to the ABA Model Rules of Professional Responsibility 3.8(g) provides that in cases where there is “a reasonable likelihood” that a convicted defendant did not commit the offense, prosecutors should (1) promptly disclose that evidence to an appropriate court or authority and, unless a court authorizes delay, promptly disclose that evidence to the defendant and (2) undertake such further inquiry or investigation as may be necessary to determine whether the defendant was convicted of an offense that the defendant did not commit. Rule 3.8(h) was added to apply when a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted of an offense that the defendant did not commit. In that case, the prosecutor shall seek to remedy the conviction.

These rules may be key in cases where testing has taken place or other evidence establishing innocence is present, such as credible recantations and/or third-party confessions. However, they leave open how prosecutors should react before testing. In this regard, Comment 1 added to 3.8(g) lends support for proactive action even in nonDNA cases by explicitly referencing the prosecutor’s role as a minister of justice that carries obligations to see “that special precautions are taken to prevent and to rectify the conviction of innocent persons.” At a minimum, this comment cautions against objecting to testing requests without good cause.

However, the practical difficulty with testing requests is determining whether evidence has been preserved that can lead to establishing innocence. While the existence of such evidence is particularly problematic in older cases, even new preservation statutes may be limited to evidence in only certain crimes, permit disposal of evidence prematurely, or do not have adequate penalties for unauthorized destruction of evidence. The ABA has urged legislation be drafted to generally ensure the preservation of material evidence for postconviction review (Resolution 111 F, approved August 2004), and the ABA Standards on DNA Evidence, Standard 2.6(b), provides for the preservation of DNA evidence until the convicted defendant has completed the sentence.

Obtaining Habeas Release Based On Innocence

AEDPA Restrictions

Because collateral attacks on convictions typically depend on evidence not presented at trial, they often are raised in petitions for habeas corpus. While statutory remedies concerning DNA testing and reliance on } 1983 eliminate some of the need for habeas, when relief is sought for a wrongful conviction, habeas will still be the likely remedy. In addition, new trial motions are not usually very helpful in non-DNA cases, because of their strict statutes of limitations, limited access to discovery, and high legal and evidentiary thresholds (Medwed 2005). For example, Farrar v. People, 208 P.3d 702 (Colo. 2009), held that a complaining witness’s postconviction recantation of testimony that raises a reasonable doubt about the defendant’s guilt is not enough to justify a new trial unless the court finds the recantation credible and would probably have led to an acquittal. As a result, a teenager’s recantation of her uncorroborated accusations of sexual abuse by her stepfather was not enough to justify a new trial for the stepfather.

The complexities of habeas corpus practice are beyond the scope of this research paper. However, timeliness and exhaustion questions often arise in the context of innocence claims. Title 28 U.S.C. } 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 created a 1-year limitation period for petitions for writ of habeas corpus brought pursuant to 28 U.S.C. } 2254 by state prisoners. While the time during which a properly filed application for state postconviction or other collateral review is pending does not count toward any period of limitation (28 U.S.C. } 2244(d)(2)), AEDPA effectively blocks many claims.

The law concerning an innocence exception to the timeliness requirement of AEDPA is in complete disarray, with some federal circuits recognizing the exception, some rejecting it, and a few refusing to reach the issue because the petitioner had not met the high burden of proof needed to establish the innocence claim. Most recently, Lee v. Lampert, 653F.3d 929 (9th Cir. 2011) (en banc), adopted an equitable exception to AEDPA based on a credible showing of actual innocence. To the extent that courts permit equitable tolling of AEDPA’s statute of limitations, Lawrence v. Florida, 549 U.S. 327 (2007), provides that the petitioner must establish both due diligence and that extraordinary circumstances prevented timely filing. However, Martinez v. Ryan, 132S. Ct. 1309 (2012), clarified that inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial and that AEDPA did not bar a prisoner from using ineffectiveness of his postconviction attorney to establish “cause” for his procedural default.

In October 2012, the Supreme Court granted certiorari in McQuiggin v. Perkins to determine two questions: (1) whether there is an actual innocence exception to AEDPA’s requirement that a habeas petitioner must show an extraordinary circumstance that prevented timely filing from its 1-year limitation period and (2), if so, whether there is an additional actual innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

While this should resolve those discrete issues, it will not end the disarray fueled by the Supreme Court’s continued refusal to explicitly recognize a federal constitutional right to be released upon proof of “actual innocence.” As Chief Justice Roberts admitted in Osborne “[w]e 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…. In this case too we can assume without deciding that such a claim exists, because even if so there is no due process problem” (Garrett 2008a, b at 2321–22).

The rejection of his second habeas petition in In re Davis, 565F.3d 810 (11th Cir. 2009), led Troy Davis, a death row inmate, to file an original petition for habeas corpus in the Supreme Court claiming actual innocence to excuse his untimely filing. This route was taken because the Supreme Court had agreed in Felker v. Turpin, 518 U.S. 651(1996), that one of AEDPA’s provisions prevented it from reviewing a Court of Appeals’ order denying leave to file a second habeas petition. Felker held, however, that the Supreme Court was not deprived of appellate jurisdiction because AEDPA did not remove the court’s authority to entertain an original petition for habeas corpus. As a result, in In re Davis, 130S. Ct. 1 (2009), the court took what Justice Scalia characterized as “the extraordinary step-one not taken in nearly 50 years-of instructing a district court to adjudicate” a claim of innocence (id. at *2). The court’s unsigned one-paragraph decision ordered the district court to “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” (Garrett 2008a, b at 1). In contrast, the dissent of Justice Scalia, which is joined by Justice Thomas, would appear to allow an innocent petitioner to be put to death so long as that individual had received a fair trial.

Davis was convicted of the 1989 murder of an off-duty Savannah police officer, but claimed he was not the shooter. Seven key witnesses later recanted, and several people identified the main prosecution witness as the shooter. Davis’ request for a pardon had been denied before he petitioned the Supreme Court. Ultimately, the trial court held a hearing and concluded that his evidence of innocence consisted largely of “smoke and mirrors” (In re Davis, No. CV 409–130, 2010 WL 3385081 *59 (S.D.Ga. Aug. 24, 2010)). The court also denied a certificate of appealability (COA) on the grounds that any appeal must be directed to the Supreme Court, a decision affirmed by the Eleventh Circuit in Davis v. Terry, 625F.3d 716 (11th Cir. 2010), cert. denied sub nom, Davis v. Humphrey, 131S. Ct. 1787 (2011). Finally, in Davis v. Humphrey, 131S. Ct. 1788 (2011), the Supreme Court denied both Davis’ direct appeal and request for certiorari from the district court’s decision. Thus, the Supreme Court was ultimately unwilling to reach the merits of Davis’ innocence claim. After this, Davis was again denied a pardon and was executed in September of 2011.

Gateway Claims That Excuse Procedural Defaults

Generally, a procedural default may be excused in habeas if the petitioner can show that failure to address the claim on the merits would lead to a fundamental miscarriage of justice, often referred to as the “actual innocence” exception (Wainwright v. Sykes, 433 U.S. 72, 90 (1977)). Pre-AEDPA, in Schlup v. Delo, 513 U.S. 298 (1995), the court discussed these so-called gateway claims of innocence, which simply permit the federal court to hear a constitutional claim brought by a federal habeas petition that was procedurally defaulted in state court.

Schlup held that to state a claim of actual innocence sufficient to excuse procedural default, a defendant must show that, in light of all the evidence, “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence” (Garrett 2008a, b at 314). Schlup requires the petitioner to establish factual innocence rather than mere legal insufficiency and explicitly limited the miscarriage of justice test to “extraordinary” cases:

To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence–that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. (Garrett 2008a, b at 324)

Pro se litigants can hardly be expected to meet this criterion, but even inmates who find lawyers willing to champion their innocence are hard-pressed to find this quality of evidence in the absence of DNA, because most other evidence comes from recantations by accomplices or witnesses, which are viewed skeptically by judges. In the 10 years after Schlup was decided, less than 10 % of decisions citing that case resulted in consideration of otherwise barred claims, and of those 31 cases, only 20 were resolved in favor of the petitioner. Thus, 11 individuals with enough evidence to suggest their probable innocence were denied relief (Segal 2008).

House v. Bell, 547 U.S. 518, 536–37 (2006), was the first Supreme Court case to satisfy the Schlup standard, which it described as follows: “Prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House also reaffirmed that the reviewing court must make a “holistic judgment” about all the evidence and its likely effect on reasonable jurors applying the reasonable-doubt standard (Garrett 2008a, b at 539). The difference between the 5–3 decision favoring House and the 5–4 decision in Osborne rejecting a right to DNA testing was Justice Kennedy’s swing vote in both cases, which may have been influenced by the strong facts favoring innocence in House and the much weaker factual showing in Osborne. The exculpatory evidence in House included DNA, which confirmed the semen on the victim’s underwear belonged to her husband and not to House. This undermined the state’s argument at trial that House’s motive to kill the victim was to mask that he had sexually assaulted her. Expert evidence also indicated that incriminatory bloodstains actually resulted from a spill from House’s reference sample. Finally, new evidence indicated that the victim’s husband had confessed to the crime.

Even with this evidence, three justices did not believe that House met the innocence threshold necessary to establish a gateway claim. Chief Justice Roberts’ dissent faulted the majority for disregarding the district court’s evaluation of discounting the reliability of House’s new evidence. He also opined that it was more likely than not that at least one juror acting reasonably would vote to convict. In other words, he argued that the threshold was not simply reasonable doubt but “such compelling evidence of innocence that it becomes more likely than not that no single juror, acting reasonably, would vote to convict him” (547 U.S. at 571).

Because House did not find actual innocence but only permitted litigation of an otherwise barred procedural claim of ineffective assistance of counsel, the case was remanded. In other words, being more likely than not that no reasonable jury would convict him would not have saved House from execution unless his claim of constitutional procedural error was granted. Without that finding, he could not be freed, let alone granted a new trial. As difficult as House’s journey to freedom proved, his petition did not raise any thorny AEDPA issues because it was his first federal filing, so not barred as a successive claim. Because Schlup was decided a year before the enactment of AEDPA, its relationship to AEDPA is not clear, meaning that many habeas litigants will have to surmount the previously mentioned AEDPA barriers, as well as satisfying innocence criteria. Ultimately, House was granted a conditional writ of habeas corpus that did not prohibit the state from retrying him. Although the local District Attorney had vowed he would retry House, charges were dropped shortly before the new trial date in 2009. House was originally convicted of capital murder in 1986 and was not released from prison until July 2008 after additional DNA testing and investigation further bolstered his claim of innocence, although even that decision generated a dissent. While his long road to freedom proved the system can rectify its errors, it reinforces how difficult the process is.

“Newly” Discovered Evidence And New Trial Motions

What constitutes “new” evidence for new trial motions and gateway claims is currently in dispute, with some circuits allowing evidence not previously presented, even if it technically would have been available, while others consider only evidence that could not have been discovered prior to trial through the exercise of due diligence (Nelson 2008). Only the broader rule encompasses evidence that is often relevant in cases alleging innocence, such as (1) evidence excluded because of actions of the defense counsel, whether or not they reach the level of incompetent counsel, or (2) the defendant’s own testimony, which may have been absent because the defendant failed to take the stand or plead guilty. Similarly, in federal court, a majority of circuits exclude a codefendant’s post-trial offer of exculpatory testimony from the definition of “newly discovered evidence” (Brennan 2008).

Another problem with the definition of newly discovered evidence is demonstrated by the developing scientific consensus about fire investigation, which suggests that there may be as many as 200 people convicted of setting fires that were actually accidents, based in part on expert testimony that would currently be subject to exclusion (Wolf 2009). Is this newly discovered evidence? And would it reach the level of a freestanding innocence claim? It may not be helpful in a gateway claim, since it is difficult to claim incompetence of counsel or prosecutorial misconduct when the field would not have excluded the evidence at the time it was offered. These questions are not academic since an influential article in The New Yorker argues that Cameron Todd Willingham, who was executed in Texas in 2004 after spending 12 years on death row for killing his three children by arson, was innocent (Grann 2009). Willingham always proclaimed his innocence and refused a deal that would have given him a life sentence. Expert reports that challenged the finding of arson in his case years after his 1992 trial did not prevent Willingham’s execution. A 2009 report of an independent expert contracted by the Texas Forensic Science Commission rejected the conclusion the fire was arson. The only other evidence of guilt was by a jailhouse informant whose evidence was even viewed skeptically by the prosecution. The commission never reached a decision on the merits of Willingham’s innocence claim after the governor replaced several of its members. More recently, Han Tak Lee v. Glunt, 667F.3d 397 (3d Cir. 2012), treated the advances in arson science as newly discovered evidence that could raise a due process claim of innocence in habeas based on the unreliability of expert testimony originally given in1990.

However, many courts are hesitant to permit review long after trial in the absence of DNA. In such cases, finality concerns are more significant because innocence cannot typically be demonstrated by a neutral source, there may be circumstantial evidence of guilt, and second-guessing juries could result in retrials with stale evidence and upset victims without a guarantee that justice will be done. In some states like California, the bias against newly discovered evidence is pronounced and in the habeas context does not warrant relief unless it points unerringly to innocence (Medwed 2007). Yet, since the early days of our republic when “dead” people reappeared after defendants were sentenced to death for murder, there have been several hundred exonerations without DNA (Gross and Shaffer 2012; Gross et al. 2006). Statutory changes to facilitate non-DNA innocence claims are long overdue. Medwed makes a number of suggestions for specific reforms such as extending the time frame for bringing new trial motions, only demanding evidence that “would have probably changed the outcome at trial,” allowing direct appeal of a superior court’s denial of habeas claims, not applying the abuse of discretion standard to summary denials of newly discovered evidence, and not sending newly discovered evidence claims to the original judge. Medwed also proposes developing a single remedy for newly discovered non-DNA evidence claims, resembling New York’s approach, which combines attributes of new trial, habeas corpus, and writs of coram nobis, which can be used to correct fundamental errors of fact and law.

Freestanding Constitutional Right To Innocence

Innocence claims brought in habeas petitions typically allege violations of due process under the Fifth or Fourteenth Amendments and claim cruel and unusual punishment under the Eighth Amendment. In Herrera v. Collins, 506 U.S. 390, 417 (1993), the U.S. Supreme 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 pursue such a claim.” Herrera refrained from announcing a standard for evaluating a freestanding innocence claim, but cautioned that due to the disruptive effect on finality and the “enormous” burden on the state in having to retry cases on stale evidence, the threshold of such a claim would be “extraordinarily high” (Gross et al. 2006). The court characterized Herrera’s showing as “falling far short” of satisfying this standard (Gross et al. 2006). His affidavits were submitted shortly before the scheduled execution, which was more than 10 years after the conviction, and asserted the defendant’s brother who died 6 years earlier had committed the murder.

Justice O’Connor’s concurrence, which was joined by Justice Kennedy, observed “executing the innocent is inconsistent with the Constitution” and would be “a constitutionally intolerable event” (Gross et al. 2006 at 418). The dissent of Justice Blackmun, joined by Justices Stevens and Souter, agreed with Justice O’Connor, declaring “the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence” (Gross et al. 2006 at 431). Thus, five justices agreed that the execution of an actually innocent person would violate the Constitution.

In House, the court once again left open whether a truly persuasive freestanding innocence claim in a capital case would warrant federal habeas relief if no state avenues of relief remain available. In dicta, Osborne again assumed without deciding that an actual innocence claim could be brought in habeas, but noted “the high standard any claimant would have to meet” to succeed with such a claim (129S. Ct. at 2321). Given such language, it is not surprising that Herrera relief was denied to five people whom DNA later proved innocent, including one who had actually presented initial DNA results that excluded him as the perpetrator (Garrett, Claiming Innocence 2008). However, some circuits do not even recognize freestanding claims of actual innocence on federal habeas review (see, e.g., In re Swearingen, 556F.3d 344 (5th Cir. 2009)). Garrett suggests that judicial reliance on finality in this debate is misplaced since state DNA testing statutes have abandoned this rationale (Claiming Innocence 2008).

The concurring decision of Justices Scalia and Thomas in Herrera suggested that “[w]ith any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon” (506 U.S. at 428). But some question whether the standard is set too high. As previously mentioned, despite the Supreme Court’s direction that the district court hold a hearing concerning Troy Davis’s innocence, the Supreme Court ultimately refused to review the merits of his claim. Moreover, even if a circuit permits a freestanding innocence claim, some categories of non-DNA cases appear never able to meet the test. For example, in Mills v. Hill, 330

Fed. Appx. 135, 136 (9th Cir. 2009), the court noted that “[w]e have rejected freestanding claims of innocence based on the affidavit of a mental health expert hired by the defense, reasoning that ‘[b]ecause psychiatrists disagree widely and frequently on what constitutes mental illness, a defendant could always provide a showing of factual innocence by hiring psychiatric experts who would reach a favorable conclusion.’” Until the Supreme Court provides more guidance about the existence and scope of actual innocence claims, the case law will likely continue to favor finality over innocence.

Compensation For Exonerees

Individuals who are exonerated in postconviction litigation are precluded by absolute immunity from successfully suing judges (Pierson v. Ray, 386 U.S. 547 (1967)) or prosecutors who are acting either as advocates or in their administrative roles (Van de Kamp v. Goldstein, 555 U.S. 335 (2009)). Law enforcement personnel are protected by qualified immunity (Hunter v. Bryant, 502 U.S. 224 (1997)), which also defeats many claims. As a result, even when a wrongful conviction is overturned, exonerees must rely on compensation statutes, section 1983 suits for violations of constitutional rights, state tort claims or private bills to obtain any monetary relief for their wrongful incarceration (Ad Hoc Innocence Committee 2006; Bernhard 2009; Bernhard 2004).

To date, less that 30 states have adopted compensation statutes. Without this avenue of relief, many unjustly convicted individuals who have had their lives virtually destroyed by their lengthy incarceration are unable to obtain any monetary reimbursement or services. While they can never recover their lost years, for some spent housed on death row or labeled as sexual predators, many states have yet to acknowledge a moral obligation to provide them with compensation and social services. Even some jurisdictions that have enacted statutes appear to remain hostile to providing full relief. For example, when such statutes are adopted, they are oftentimes quite miserly, with very low dollar caps, and may require proof of economic injury or have very short statutes of limitations (Ad Hoc Committee 2006; Raeder 2008). Few of them provide for any services, whether medical, psychological, educational, or assistance in obtaining housing or employment (Raeder 2008). In contrast, probationers and parolees are entitled to more assistance and social services than those who are released because they did not commit any crime. The lack of resources for exonerees poses a serious problem for individuals, many of whom who suffer from post-traumatic stress disorder from their lengthy prison ordeals (Raeder 2008), as well as for those who were incarcerated before the technological revolution vastly changed the nature of skills needed for employment.

Some of the existing statutes also require that exonerees obtain a pardon despite the fact that DNA may have clearly excluded the person as the wrongdoer. A more significant hurdle to recovery is that a number of statutes disallow compensation for those who are claimed to have contributed to their convictions (Ad Hoc Committee 2006). This can occur because the defendant pled guilty, as was evident in the nearly 200 cases reversed in the wake of the police scandals in Los Angeles and Tulia. Similarly, in cases involving false confession, many of those who confess are youths or have mental disabilities or low IQs. Yet, some of the statutes literally prohibit recovery per se, rejecting a case-by-case basis which would look at the surrounding circumstances (Ad Hoc Committee 2006).

Jurisdictions can differ about the details of what an appropriate statute should look like, but when unrealistically high barriers are enacted, the relief provided by such statutes becomes illusory. In the absence of any statute, exonerees are placed at the mercy of convincing a legislator to pass a private bill for compensation, unless they can find a lawyer who is willing to argue that their incarceration resulted from a constitutional violation. When constitutional violations are established, multimillion dollar verdicts can be returned, though recovery can be a lengthy process. In too many other cases, an exoneree comes away empty handed. Like the lottery, people who have spent decades in prison for crimes they did not commit get to see which one will receive $3 million, $300,000, or more typically nothing.

This lack of uniformity in providing compensation encourages arbitrary results (see Fact Sheet, Innocence Project, Compensating the Wrongly Convicted, accessed February 5, 2012, http://www.innocenceproject. org/Content/Compensating_The_Wrongly_Con victed.php). One possible model for legislation is the Federal Innocence Protection Act, 28 U.S. C.A. } 2513(e). The IPA sets compensation at $100,000 a year for those who have served time on death row and $50,000 a year for others. Several states have increased their compensation since the federal legislation was enacted.

Innocence awards may also be subject to taxation. Unlike California, very few state statutes exempt wrongful conviction compensation awards from state taxation. Moreover, a real question exists about whether the awards are also exempt from federal taxation. Efforts to pass a Wrongful Convictions Tax Relief Act failed in 2010 and 2007. To date, no federal tax legislation has been enacted. In 2010, a memorandum from the Office of Chief Counsel Internal Revenue Service on Tax Treatment of Compensation to Exonerated Prisoners clarified that an exonerated prisoner could exempt his compensation from federal taxation because he had suffered physical injury and sickness (Number: 201045023, Release Date: 11/12/2010, http://www.innocenceproject.org/ docs/IRS_Compensation_Ruling.pdf). However, Stadnyk v. C.I.R., 367 Fed. Appx. 586 (6th Cir. 2010), explicitly states that physical restraint alone does not provide the physical injuries or physical sickness necessary to exempt an award from taxation and notes that compensation for mental distress is also not exempted. Freeing the innocent requires more than releasing them to the streets penniless and with skills that atrophied a decade ago. Today many exonerees must rely on the fortuity of having family or friends to provide them with a home and a basic standard of living when they cannot obtain compensation.

Conclusions And Future Directions

In the absence of DNA exclusions, postconviction claims of innocence tend to be discounted because of our inability to readily identify individuals who were wrongfully convicted. Arizona v. Youngblood, 488 U.S. 51, 58–59 (1988), poses the most telling example of this dilemma. Youngblood denied relief where the state had not preserved evidence that the defendant claimed could exonerate him and also rejected any constitutional remedy in the absence of bad faith destruction of such evidence by the government. The decision did not even require any showing of good cause for the destruction. Yet some 12 years later, evidence was found that when submitted to newer DNA analysis exonerated Youngblood. In other words, the Supreme Court downplayed the possibility of Youngblood’s innocence in setting a high threshold in a case where the defendant was factually innocent. That Youngblood is not an isolated example of our failure to accurately determine after conviction who is innocent is demonstrated by Garrett’s study of exonerees, which revealed that the reason for denial of relief in one-third of the cases with written decisions on direct appeal was harmless error (Garrett, Judging Innocence 2008). He found that in half of the written decisions, courts referred to the likely guilt of the defendant, and 10 % referred to the evidence of guilt as overwhelming. Thus, appellate review not only failed to rectify the wrongful conviction, but judges also incorrectly identified innocent defendant as guilty and thereby disregarded the strength of the procedural errors during trial. Given the lack of a viable constitutional theory to raise claims of innocence on direct appeal, it is not surprising that of the 16 exonerees who sought a new trial based on newly discovered evidence of their innocence, none received relief prior to obtaining DNA testing. Similarly, the five who raised Herrera claims had them denied.

To respond to this disconnect, North Carolina has set up a commission that inquires into individual cases and actually reviews evidence not submitted at trial (The North Carolina Innocence Inquiry Commission, accessed February 5, 2012, http://www.innocencecommission-nc.gov/index. html). This type of commission resembles the model used in the United Kingdom and Canada (Ad Hoc Committee 2006; Griffin 2001; Scheck and Neufeld 2002). While such an approach may be considered too bold at present for most jurisdictions to adopt, commission review is no guarantee that innocence will be established, although three of the four cases currently decided resulted in exonerations.

Thus, until technology or forensic science is able to provide the equivalent of DNA exclusions in cases not involving biological evidence, such postconviction claims of innocence will understandably continue to be treated skeptically. Dedicated prosecutors and defense counsel are the best protectors of innocence, but we also need to be more open to reviewing policies, practices, and legal doctrines across the criminal justice system to ensure that procedures that appear to create high risk of error are changed to reduce the risk of wrongful convictions. In addition, more attention should be paid to providing fair and speedy compensation and services to individuals who have satisfied the high standard necessary to establish their factual innocence.

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