In my humble opinion

In my humble opinion we need to follow Judge Cataldo’s lead and ensure that justice will finally be more about the truth than about ‘closing’ a case. As much as we need procedure to bring a case to court, procedure can also stand in the way of bringing a case to court. We should be searching for alternative explanations of the facts.

We have seen many exonerations in the recent past where defendants were on death row for decades. I understand if you are skeptical. Where there is smoke, there is fire. Someone cannot be on death row and be innocent, right?

Wrong.

The majority of incarcerated people are guilty as charged, but there is this small minority of people who are wrongfully convicted. And I do not mean less guilty than charged. I mean wrongful as in “you’ve got the wrong person!”

There are many ways how an innocent person can end up on death row. False confessions and mistaken eyewitness identification play a huge role, as well as faulty science. I encourage you to read more on the sites from the Innocence Project and the Death Penalty Information Center.

Let’s go back to some human rights cases. Despite procedural hurdles, we should still be able to access the courts when we have strong evidence that contradicts the verdict. It would not be right to continue without identifying my new hero: Justice John Cataldo of the State Supreme Court in Manhattan. The New York Times reported in November of last year that, in the case of the People of the State of New York v. Fernando Bermudez finally a judge had the courage to pronounce these two words: “actual innocence.”

Now you may wonder why I gasped when I read those words. Allow me to explain.

By acknowledging that actual innocence was at the core of this case, Judge Cataldo opened the door to get actual innocence established as a legitimate ground for a new hearing after the trial in the first instance. In 1993, we were stunned by the United States Supreme Court’s decision in Herrera v. Collins. In this case, the US Supreme Court confirmed that “claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Chief Justice Rehnquist said that judges are not empowered to correct errors of fact even if the mistake could lead to the execution of an innocent man. Federal courts were only to intervene when state courts violated constitutional procedures.

According to Chief Justice Rehnquist, “the proper procedure for making claims of actual innocence after the judicial process has been exhausted is by filing a request for executive clemency. Clemency is the historic remedy for preventing miscarriages of justice; it has provided a fail safe in our criminal justice system.” However, there have been many cases in which clemency should have been granted but was denied. Most notably, Cameron Todd Willingham comes to mind.

The Willingham case has been all over the news, so we will not discuss it in-depth. In short, on December 23, 1991, a fire broke out in one room of the Willingham home, in Texas. Willingham’s then-wife and mother of his children, was not home. Their three daughters were and lost their lives. Willingham himself was home, tried to save his children, but was forced back by the intensity of the fire. He escaped with minor burn injuries. The investigation that lead to his capital charge and conviction was based on analysis and procedures that were later discredited. Willingham denied from the beginning that he had set the fire.

At the time of Willingham’s clemency request, forensic arson analysis had made significant progress, and it was clear that numerous conclusions that were drawn at the time of the trial were incorrect. Among other things, modern forensic arson detection established mistakes centered on puddle configurations, pour patterns, burn trailer, and V-shaped burning marks. At the time of the trial, V-shaped burn marks were taken as sole indication for the point of origin of the fire. However, modern arson forensics has established that V-shaped burn marks occur repeatedly during post flashover. Flashover occurs when radiant heat causes fire in a room to be a room on fire; it can happen within minutes without liquid accelerant. The then-held beliefs about flashover were wrong. After everything in the Willingham room ignited, post flashover occurred when the blaze went from a fuel-controlled fire to a ventilation-controlled fire. As Willingham opened a door, the fire followed the path of a new source of oxygen, leaving a trail to that door. This trail was mistakenly believed to be caused by a liquid accelerant.

After numerous unsuccessful appeals, Willingham’s last hope was executive clemency by the Governor of Texas, but Chief Justice Rehnquist’s belief in clemency as an effective means to prevent miscarriages of justice turned out not to be justified. Texas Governor Perry received the Willingham defense report with the new scientific analysis, but denied clemency nevertheless.

A clemency decision does not require the level of scrutiny that a trial requires. In fact, in Texas, the members of the Board of Pardons and Paroles and the Governor do not have to give any reasons for their recommendations and decision. This is exactly why the clemency process is insufficient in cases where there is proof of actual innocence. Sadly, it took this execution and the intense criticism that followed, to convince Governor Perry to replace members of the Texas Forensic Science Commission. If only the Willingham defense had been granted one more hearing, the execution would not have taken place.

Back to the Bermudez case.

Judge Cataldo writes, “I find the due process clause of our State Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence. Under a claim of actual innocence, the hearing court may examine all of the available, credible evidence in order to determine whether the defendant has met his burden of proof. As noted in Justice Blackmun’s dissent in Herrera v. Collins, 506 US 390, 435-437(1993), to ignore a claim of actual innocence would be “fundamentally unfair” as a matter of procedural due process.”

As you can read in the NY Times article, actual innocence statutes could “give judges the leeway to excuse procedural violations, missed deadlines and other mistakes if the evidence is strong enough.” Especially when dealing with capital punishment, we are convinced that actual innocence statutes are not just necessary, they are crucial. Too many people have had to be exonerated long after their initial conviction. In most of those cases new DNA technology was a determining factor. Because of the power of DNA evidence, those cases are dealt with under separate laws. However, as the Bermudez case shows, clear and convincing evidence for actual innocence claims does not need to involve DNA.

DNA evidence should not be the only possible evidence to bring capital cases back to courts for review. A series of developments in forensic science have made it possible that more cases can be reviewed. Examples of such developments are partial finger printing, new methods for arson detection (especially concerning burn patterns, flashover, and puddle configurations), and forensic odontology (bite marks). On the other hand, bullet lead analysis is now a discredited forensic tool, because it has been shown that the distribution of metal alloys in a bullet cannot be linked to when and where the bullet was made.

Many will disagree stating that ‘closure’ will be undermined, and that the endless appeal possibilities will only prolong the agony of victim family members. I understand but respectfully disagrees.

We still see justice as seeking the truth and not as bringing the case to its end in the last court. We talk about new evidence that surfaces long after the trial is over, because of new technology, earlier prosecutorial misconduct, etc. The new evidence must be so strong that it is abundantly clear, beyond any doubt, that the defendant would not have been convicted had the evidence been available at the trial. The evidence must be strong, of course, to prevent frivolous claims of actual innocence. The threshold to re-examine these cases or grant a new hearing should be high, but it should not be an insurmountable wall.