Parsing Post-Conviction Writs

Via Stand Down, the Fall issue of the American Bar Association's Criminal Justice magazine features a series of articles on Postconviction Practices. Here's the table of contents:

Priming Postconviction Representation
By Andrew E. Taslitz
Issue editor for the symposium on postconviction practices, Prof. Andrew Taslitz, Howard University School of Law, here introduces the four major features with an overview of the topic and an explanation of how each feature helps nonspecialists—both defense and prosecution—understand and address the needs of this often-forgotten population within the criminal justice system.

Procedural Obstacles to Reviewing Ineffective Assistance of Trial Counsel Claims in State and Federal Postconviction Proceedings
By Eve Brensike Primus
The author, a law professor and former trial and appellate defender, compares state and federal postconviciton review procedures, then examines the obstacles that bar successful postconviction claims: limited availability of evidentiary hearings, loss of witnesses due to delays, and no constitutional right to counsel at postconviction hearings, among others. Four defense options offer what she terms “partial solutions.”

Postconviction Claims of Innocence
By Myrna S. Raeder
Explaining the options and obstacles facing those who make postconviction claims of innocence, the author, a professor at Southwestern University Law School, notes that appellate remedies exist to ensure a fair trial and not to “second-guess” juries. She addresses the relief available under the Innocence Protection Act and the limitations of DNA testing after the Osborne decision. She also looks at the role of crime victims, the ethical obligations of prosecutors, the definition of “new” evidence, statutes of limitations on relevant claims, and “freestanding” constitutional claims of innocence.

Gubernatorial Clemency Powers: Justice or Mercy?
By Kathleen “Cookie” Ridolfi and Seth Gordon
Is a governor’s power of clemency strictly an act of mercy or is it an extension and, at time, correction to the course of justice? In this article the authors examine the two opposite sides of the coin to see how clemency has been applied by different governors and the legal reasoning employed. They conclude that clemency has been underutilized as a correction that is supported by both the courts and the Constitution as a fail-safe for an imperfect justice system. Included is a graph summarizing the procedures in all 50 states.

From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings
By J. McGregor Smyth, Jr.
Collateral consequences are the invisible, often unintended, punishments that those caught in the criminal justice system face. Indeed, the individual need not even be convicted of a crime—a simple arrest can initiate the process. Loss of job, eviction, deportation, severance of student loans, and denial of child custody are the triggers, the author argues, that so often lead to recidivism. Smyth suggests means by which defense and prosecution can reduce these effects, restore rights, and allow individuals a chance to reintegrate into society—rather than reoffend.

Relatedly, Scott Greenfield at Simple Justice has a post on the tension between innocence claims and finality of convictions, analyzing proposed New York legislation allowing judges to ignore procedural barriers when there is evidence of actual innocence. (There's a good discussion in the comments of the wisdom of legislatively restricting postconviction writs that's worth reading as well.)

I lobbied this session on behalf of the Innocence Project of Texas for similarly themed legislation in Texas carried by Sen. John Whitmire (SB 1976) which would have allowed habeas writ filers to overcome procedural barriers in cases involving flawed or outdated forensic science. Like other key innocence legislation that cleared the Senate, the bill appeared to be sailing toward passage, but it died during the House meltdown over Voter ID. (The Harris County DA had been the main opponent through most of the process, but we reached a compromise over language as the bill awaited passage in the House.)

There are at least two categories of cases with bad forensics I can think of offhand where Whitmire's legislation would be a boon to justice: Older arson cases and people convicted based on scent lineup "testimony" by Deputy Keith Pikett's bloodhounds. We're talking about a significant but not infinite number of cases: Based on back-of-the-envelope calculations, there have been perhaps 5,000 Texas felony convictions in the last 20 years involving those two types of forensic evidence. Certainly not all those are innocent and most won't have colorable claims, but it's likely a non-negligible, larger-than-usual percentage of people convicted on such testimony are actually innocent.

Those old cases deserve closer vetting and unless the Attorney General or someone else steps forward to do so comprehensively, one-at-a-time habeas writs are the only way to do it. So I'm hopeful the Texas Lege in 2011 will revisit the issue of limiting habeas hurdles in cases with flawed forensics. Perhaps the postconviction reforms they come up with in New York, and discussions like these from the ABA, will help inform and clarify that debate.