Civil Liberties

Ninth Circuit Panel: Innocence, Schminnocence. We Have Rules, You Know.

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A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected an Oregon man's petition for habeas corpus relief (PDF). This despite acknowledging that the man has established actual innocence for the crimes for which he's being imprisoned (sexual abuse and sodomy of a four-year-old). The reason: He was late filing his petition. By the panel's reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

New York criminal defense attorney Scott Greenfield comments:

…in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn't manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth.  They don't care.  They just don't care.

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  1. Anyone care to bet that SCOTUS will overturn? I’ll give you 4-1 odds.

    1. With Madame Deference on the bench next year? I don’t think so. Breyer and Ginsburg would probably vote to overturn, while Thomas and Kennedy would be maybes. Which leaves Kagan and NewProfessionalism, Scalito, JailForEatingOnMetroTrains, and WiseLatinaExProsecutor.

      1. Scalia will vote to overturn if their is prosecutorial misconduct, otherwise not.

        I havent read the details of the case, but if there is “concealment by the government” involved, Scalia will come down hard on them.

    2. I’ll take that bet and even spot you The Kragen.

      1. I prefer “The Kurgen.”

        1. I like

      2. What do you have against Auto Parts Stores?

  2. Up until just a few years ago, Virginia had a rule that prevented the presentation of any new or additional evidence more than 21 days after the conclusion of trial. So if you were wrongly convicted, you had three whole weeks to find more evidence to prove your innocence. After that, tough titty.

  3. Asinine.

  4. He *must* be guilty; he’s in jail, isn’t he?

  5. Isn’t part of the reason for having judges and other actual human beings who are allowed to make decisions involved in the legal system to avoid shit like this? I can’t imagine that anyone doesn’t think that this guy deserves to be released, so why can’t these judges do some judging and say that the law clearly produces the wrong outcome here and release the guy?

    1. Isn’t part of the reason for having judges and other actual human beings who are allowed to make decisions involved in the legal system to avoid shit like this? I can’t imagine that anyone doesn’t think that this guy deserves to be released, so why can’t these judges do some judging and say that the law clearly produces the wrong outcome here and release the guy?

      Judges in federal appellate courts are supposed to uphold the United States Constitution and federal stature, in that order.

      The human being who are “allowed to make decisions involved in the legal system” in this case is the governor of Oregon.

      so why can’t these judges do some judging and say that the law clearly produces the wrong outcome here and release the guy?

      That power is reserved for the governor of Oregon, not the judges on the Ninth Circuit.

      1. Which leads to the question of why the hell it even got this far without him being pardoned?

        1. Which leads to the question of why the hell it even got this far without him being pardoned?

          That is a good question. Surely Lee’s attorney would mail a copy of the district court’s transcripts (the court that had made the finding of actual innocence) to the governor and the press.

          Furthermore, why is the mainstream media not reporting on this case? Where are CNN and MSNBC? Are they asleep at the switch?

          1. Furthermore, why is the mainstream media not reporting on this case? Where are CNN and MSNBC? Are they asleep at the switch?

            Duh, Ted Kulongoski is a Democrat. If he were a Republican and committing the travesty that Jan Brewer is with the William Macumber case, they would at least cover it.

          2. It’s far more important that Washington D.C. and New York City are facing temperatures for a week that other parts of the country face for months! Fuck an innocent man’s life–there’s sweat, people, SWEAT.

            1. It’s far more important that Washington D.C. and New York City are facing temperatures for a week that other parts of the country face for months! Fuck an innocent man’s life–there’s sweat, people, SWEAT.

              This case is yet another piece of evidence that the mainstream media no longer serves a public purpose.

  6. One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety. The public’s trust, and the integrity of the judiciary, depend on it. Without it, the courts are nothing, worthless. When the public ceases to believe that they can obtain redress for wrongs in the courts, then the only option available is the use of weapons.

    The Ninth Circuit lost that appearance of propriety.

  7. This attitude is typical of the judiciary, particularly the appellate. When the “Little Rascal’s” preschool panic was underway in North Carolina my brother was dating the daughter of the Chief Justice of the NC Supreme Court. With my heft legal expertise of having seen two entire episodes of “Frontline” documenting the case, I asked him why he didn’t do anything to fix it. His reply? There’s no case before me, so there’s nothing I can do. I was pretty young at the time, but I had a hard time wrapping my head around the idea that multiple people were facing life in prison, and that most people outside of the immediate panic knew that they were factually innocent – yet nothing was to be done about it.

    I was like “can’t you just call up the attorney and say: ‘have an appeal on my desk by Monday and we’ll sort this thing out’?” Yeah, I was pretty naive. I learned that the system is more important than any individual outcome. Still not too sure about that from a pragmatic point of view. I’m definitely sure about it from an ethical point of view.

    I can’t believe you’d sit there with the power to right such a horrible wrong and not figure out some little loophole to drive a remedy through. We see the left on the high court jumping through all kinds of mental hoops to justify their decisions for what they believe to be the greater good (which are clearly at odds with the plain language of the constitution – see Citizens United). Why no similar hoop-jumping for someone who is having his life stolen? The argument should be about whether he deserves compensation for the wrong he has suffered, not about whether we are to continue the wrong. Damn, where’s the sense in the world?

    1. WILLIAM ROPER: So, now you give the Devil the benefit of law!

      SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?

      ROPER: I’d cut down every law in England to do that!

      MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

      1. Very cute, but I cannot see the logic behind a time-limit on habeas corpus petitions. It’s a constitutionally-enshrined right.

        1. Actually, the Constitution only mentions habeas corpus when it specifies the procedure for suspending it. So it’s only “enshrined” by the pre-constitutional body of law, which may not preclude a time limit.

          As for the logic, the alternative is to let convicts who don’t have any new evidence waste the court’s time filing a habeas petition every month for the duration of their prison term.

    2. “I can’t believe you’d sit there with the power to right such a horrible wrong and not figure out some little loophole to drive a remedy through.”

      I agree with the sentiment, but, sadly, that sort of thing is part of what got us here in the first place. We need to stop assuming that, when it really matters, foolish and counterproductive laws will be defeated by some cleverly devised special exception. That breeds complacency which discourages real fixes, and the same loopholes are easily abused once they’ve been found. Then we get even more bad law from people anxious to implement a quick-fix for these latest embarrassing abuses.

    3. I can’t believe you’d sit there with the power to right such a horrible wrong and not figure out some little loophole to drive a remedy through.

      They have no power.

      Judges are bound by the law.

      1. No they arent, they can overturn the law.

        1. No they arent, they can overturn the law.

          Only if a higher law (and the precedential history behind the law) permits or requires them to do so.

          Overturning laws simply because they are bad is a bad idea for judges.

          1. Agreed. What I was referring to is their wont, nay avocation, of finding a legal rational to back up their decision as to what is “right”. It seems they have no problem with tortuous logic in defense of [rendition, warrentless wiretaps, anti-drug laws, pick your favorite], but for this poor guy… not so much. For him, we’ll have to be strict on the letter of the law. His form was stamped 6 months late, so tough shit.

          2. “…nor be deprived of life, liberty, or property, without due process of law…” – emphasis on “due” here. One could argue that the law denies the man due process.

            1. He received due process at his trial. After conviction there is no due process.

              1. Couldn’t it be said that since crucial evidence was not present at trial, the trial wasn’t due process?

                I mean, I’m sure the way the law is now, that doesn’t hold, but still.

                Also, re: Tulpa|7.7.10 @ 3:57PM

                Shouldn’t it be fairly easy to see if a petitioner has new evidence? If he doesn’t, don’t waste time, throw the petition out.

                On the other hand, I guess that could leave it in the judge’s hands to decide what constitutes new evidence, leading to opportunities for selective treatment.

              2. You look deeply enough you find that the purpose of the courts is to provide the appearance of justice, not actually to provide the thing itself.

    4. Couldn’t they just see to it that he escapes? Then nobody’s to blame.

  8. DUE PROCESS!!

    1. Hahahahahahahahahahahahaha! Good one!

  9. You’d think they were using the jail system as a jobs program or something.

  10. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

    That there is a feature and not a bug, son.

  11. The ruling from the court gives reasons for taking this case. In particular, there is a split between various circuit courts as to whether “actual innocence” is subject to any statute of limitations.

    From the decision:

    This split creates troubling inconsistency. The rights of
    state prisoners in Oregon depend on which judge hears their
    cases. The rights of state prisoners in California depend on the
    happenstance of the location of their state prison. Such chaos
    calls out for our resolution.
    B
    Our second reason for resolving this question at this time
    is that our district courts are expending vast amounts of
    resources under the current approach of evaluating actual
    innocence, on the assumption that an actual innocence exception
    exists. Each such evaluation requires the submission of
    exhibits, oral argument, evidentiary hearings, and numerous
    rulings, as the case before us demonstrates.15 Here, the district
    court held several hearings and accepted numerous exhibits
    over the course of proceedings lasting several months. Lee,
    607 F. Supp. 2d at 1216; see Nickerson, 260 F. Supp. 2d at
    889 (recounting four days of hearings over three months, two
    hundred exhibits, and post-hearing briefing).

    Ok, so to sum up: it isn’t fair that different standards are being applied in different jurisdictions, and it is a lot of work to let innocent people go free, so we’re going to rule that you don’t get a hearing at all. That’ll clear up any disparities and keep our docket clear. Nice…

  12. Administration of justice is HARD!

    1. See, this is why you need a big strong system to do your thinking for you, and hold you when nights get long.

  13. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

    The Courts follow rules. “The world must construe according to its wits; this court must construe according to the law.” Certainly there’s a place for determining that the rules in place don’t provide due process, but there’s a limit to what you can expect.

    This is, certainly, the other side of the argument made by conservatives and others complaining about the certainly guilty being let off by technicalities and deadlines. Does criminal defense attorney Scott Greenfield “care” if he manages to get someone guilty of a heinous crime off because someone missed a filing deadline? Not if he’s doing his job.

    Do any of you doubt at all that if the courts bent the rules for people who were obviously innocent, that it would not lead to bending the rules for people who were “obviously guilty?”

    1. I don’t doubt it; however the situation is compounded by the fact that there is very little incentive for the vote-whores in Congress to write laws that provide adequate due process and even less for Executives to exercise leniency. If the Courts got involved in judging whether the due process provided by laws (or regulations) is adequate, would that be so bad?

      1. One would think that if his innocence has been so overwhelmingly proven that the governor would be willing to quickly dispatch the pardon…

        Then again, being that the crime he was originally accussed of is sodomy of a four year old, no matter how much innocence is proven it seems like that is a politcally untenable pardon to issue.

        1. Then again, being that the crime he was originally accussed of is sodomy of a four year old, no matter how much innocence is proven it seems like that is a politcally untenable pardon to issue.

          Why would this be so?

          1. Why would this be so? Because of the crimen exceptum.

            “The crimen exceptum is central to every inquisition, whether it be heresy, witchcraft, being a Jew, a Red under the bed or today one accused of child sex abuse or accessing child pornography. The crimen exceptum requires the suspension of due process and all real processes of justice. You do not need to be tried and convicted, merely accused.

            From http://www.inquisition21.com/

    2. Do any of you doubt at all that if the courts bent the rules for people who were obviously innocent, that it would not lead to bending the rules for people who were “obviously guilty?”

      Better to let 10 guilty men go free….

      But only 1 year to submit habeus corpus filings and the stalling DA’s office whihch has been supressing evidence releases on day 366, tough shit? (An example only, but a very realistic possibilty–I don’t know the details of this case.)

      There should be no staute of limitations on habeus corpus challenges. Full stop.

      If the legislatures can find all sorts of judicial resources for prosecuting child sex abuse crimes without time limitations, then they can scrape up some to release the occassional innocent man. Perhaps if they stopped prosecuting all those non-violent drug crimes….

      1. The law addresses your example. The clock starts after any state imposed impediments are removed. Presumably state actors hiding evidence would count.

    3. However our system is supposed to treat differently the innocent and the guilty – the whole principle of “better a 1000 guilty go free than 1 innocent be jailed” it put to lie be this decision.

    4. Another case in point for my suspicion that we’d be better off governed by a wise man than by law.

  14. That said, I hope that Oregon has an appropriate usage of pardons and commutations, like Ehrlich did in Maryland, and unlike Brewer in Arizona or our last three Presidents, including the current.

    1. That said, I hope that Oregon has an appropriate usage of pardons and commutations,

      If they did, this guy would already be free.

      1. Sadly, you are almost certainly right.

        Maryland is an interesting case. Ehrlich was the first pro-death penalty governor in 16 years, but he also pardoned more people in 4 years than had been in the previous 16, and set up an Innocence Commission.

        O’Malley is “anti-death penalty,” but that apparently extends only to illegally missing deadlines and gumming up the works for the people currently on death row so that they won’t be executed, but not to using his powers to commute them to life sentences. He also hasn’t pardoned anyone at all. An impressive lack of courage all around on his part.

        Anyway, this is an excellent site.

        It’s clear that this case is exactly what the pardon power and executive clemency was designed for, but it’s so rarely used.

        Clemency is one of the things that libertarians can praise about Huckabee, even if nothing else.

        1. Clemency is one of the things that libertarians can praise about Huckabee, even if nothing else.

          Haphazard clemency, predicated on getting right with the Lord, rather than probable innocence, is not something praiseworthy.

          1. Haphazard clemency, predicated on getting right with the Lord, rather than probable innocence, is not something praiseworthy.

            Sure. But that’s not a fair description of what Huckabee did at all.

            For example, in the Clemmons case, he was acting on the unanimous recommendation of the state’s five member panel set up to make clemency requests.

            There was nothing about “getting right with the Lord” in that recommendation (or in Huckabee’s explanation of it), merely that

            Maurice Clemmons was 16 years old when he committed the crimes of burglary and robbery. He was sentenced to a total of 108 years in prison, dramatically outside the norm for sentencing for the crimes he committed and the age at which he committed them.

            Do you have any basis whatsoever for your claims, or is it based on merely prejudice?

            1. I was specifically thinking of the Wayne Dumond commutation:

              As governor of Arkansas, Mike Huckabee aggressively pushed for the early release of a convicted rapist despite being warned by numerous women that the convict had sexually assaulted them or their family members, and would likely strike again. The convict went on to rape and murder at least one other woman.

              In this case, Huckster has lied again and again trying to shift responsibility for the commutation to the former governor or the parole board, but the reality is he was lobbying the parole board to vote for commutation so that he could avoid political fallout.

          2. Haphazard clemency, predicated on getting right with the Lord, rather than probable innocence, is not something praiseworthy.

            On the other hand, commuting a sentence to make it more in line with other 16 year old first offenders accused of burglary, is. And since that what Huckabee did, you must find him praiseworthy.

        2. The thing you gotta remember is that with any other accused crime, this guy would be free right now. But he was accused of sodomy with a four year old. There is no measure of innocence that can be proven that will be deemed sufficient, unless you find the guy that actually did it, releasing the guy convicted for it is political suicide because our electorate reacts only on emotions like fear and vengenance.

          1. releasing the guy convicted for it is political suicide

            Citation needed.

            1. Citation Needed

              Call Michael Dukakis, I’m sure he could google something for you.

              1. A case where everyone involved believed that the guy was guilty? A case which didn’t involve commuting a too long sentence (much less someone who was actually innocent), but granting weekend furloughs to people not eligible for parole?

                Pretending that furlough program was pardoning or commuting the sentence is confusing the issue, just like some people (like Tulpa, among others) seem to have no idea about the facts of the Clemmons case.

                1. Pretending that furlough program was pardoning or commuting the sentence is confusing the issue, just like some people (like Tulpa, among others) seem to have no idea about the facts of the Clemmons case.

                  What was the rationale for granting weekend furloughs to convicted murderers?

  15. *OAF*
    Thank you Radley. May I have another.

    1. We need some jargon for the phenomenon of “getting Radley’d” – that is, waking up and feeling that hot flush of anger and despair as Radley Balko documents for us yet another violation of human rights perpetrated by an arm of the legal establishment somewhere in the United States.

      “Getting OMBed”? (Ow My Balls) It’s hard to pronounce.
      “Getting Balked”? I like that.

  16. Does that link (the 1st one) work?

  17. Goddamnit, Balko. Yes, thank you for your vigilence, but now my balls hurt. Again.

    *sigh*

  18. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

    The panel’s hands are tied; there is a deadline, and judges are bound by it.

    It is the governor who has the power to grant clemency.

    1. Their hands arent tied at all. They can throw the deadline law out, its part of the appeals courts purpose.

      1. Their hands arent tied at all. They can throw the deadline law out, its part of the appeals courts purpose.

        And what constitutional provision would allow them to do so?

        What is the precedential history behind that constitutional provision?

        The only justification for throwing the deadline out is if it were permitted by federal statute, or conflicts with a provision of the United States Constitution.

        1. Fine – where does it say in the Constitution that Congress or the President can limit habeas corpus?

          One place I can think of…and therefore, by the guide of interpretation known as expressio unis, there is no other place where they may limit that right.

          1. Apparently, your guide of interpretation also tells you that “suspend” means the same thing as “limit”.

  19. The only justification for throwing the deadline out is if it were permitted by federal statute, or conflicts with a provision of the United States Constitution.

    There’s a Due Process Clause in there somewhere, I’m sure of it.

    1. And I say again, haaaaahahahahahahahahaha!

      Good one!

  20. Just use common sense and sweep the rules violations under the rug. I’m serious about my suggestion to just make sure he escapes. And look the other way in case some wise guy “finds” him.

    In recruiting for the Census Bureau, I came across an application that was incomplete. I won’t go into the details that led to the clear conclusion that the applicant was demented and should stay at home with her husband rather than possibly getting in trouble. My sup’v wouldn’t countenance my putting her appl’n into “permanent limbo” rather than having her called back 3 times as called for by the rules, but later I quietly slipped the appl’n into that status.

    I wish we had a secret, arbitrary gov’t with total discretion. Things would come out better than following rules. Why? Because most people are basically of good will and have common sense (which is why it’s called that); but the institution of rules turns everything into a game, which gets nasty. Would secret gov’t with no rules be as good as liberty? No, but it would probasbly be closer than we get with open democracy and law. And even if it wasn’t, we wouldn’t find out, so we’d all be happier.

  21. I wish we had a secret, arbitrary gov’t with total discretion.

    Mission accomplished! You’ll be voting to re-elect Obama, I presume?

    1. No, I don’t mean straining against the rules, I mean really no rules, everybody acknowledging that, and they don’t disclose anything they don’t want to.

      Of course they’d loot as much as they wanted, but because they’d have total discretion and secrecy, they wouldn’t have to share with anyone, so their total take would be minuscule in the overall scheme of things, because how much bling could one tyrant want?

  22. It’s really very simple, people hate to admit they were wrong. The prosecution in this case was prosecuted the wrong man, knew it was prosecuting the wrong man, but lacked the courage to admit it.

    So we have a cowardice none will address and correct, largely because we also tend to gather together in protective groups when our group is endangered. The legitimacy of the charges matters not, you protect your own. So we have intransigence and the herd instinct ganging up on the innocent.

    So I recommend that the law in question be overturned on the grounds that it denies the defendant a fair and impartial hearing. If one must have a Constitutional amendment let it be…

    A fair trail being a vital part of American jurisprudence, the Congress shall make no law setting a time limit on when evidence relevant to a case may be presented to the courts. Nor shall Congress enact any law making evidence inadmissable just because it becomes available post conviction.

    Now awaiting the screaming from the fussbudgets.

    1. But that’s the beauty in just seeing to it that he escapes, preferably secretly. Then nobody has to admit they made a mistake, and they can all even pretend he’s still in jail — and he’s sure not going to say anything about it, either.

  23. fuck them hoes

  24. In Canada, our judges, who are not elected, can except pretty much anything if it is a miscarriage of justice or would bring the administration of justice into disrepute. That’s what you have here, and that’s what would keep giving this guy a remedy from also providing guilty people who missed a deadline a remedy. Seriously, your constitution or case law must have something about the miscarriage of justice? Aren’t you all about freedom and justice?

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