Evaluating innocence on appeal
Earlier I wrote about a law review article that reviewed cases where defendants had been subsequently cleared by DNA evidence. I reviewed the types of evidence which typically lead to wrongful convictions. In this post I want to review the failure of the post-conviction process to weed out innocence cases.
The study reviewed 200 cases; out of those there were a total of 133 defendants who received written decisions in their cases 60 of those defendants raised sufficiency.of evidence claims, and only 1 was successful. The most successful claims were ones raising a state law evidence claim - if you consider 8% successful. The second most successful claim was ineffective assistance - 11%.
Eighteen of the defendants received reversals, which is a 14% reversal rate. 12 of those were retried, some of them multiple times. In contrast, in the comparison group (similar cases where there was no exoneration) the reversal rate was not much different - 10%.
One fact I found interesting was the impact of harmless error, which means the court finds there was some error but it didn't contribute to the verdict. 32% of the decisions relied on harmless error in denying relief. In 10% of the cases the court referred to the evidence of guilt as "overwhelming"!
To be fair, not all claims involve claims of innocence. In the study 25% (33 defendants) of the defendants raised innocence related claims. Only 3 were successful, all on Brady claims. Sixteen of the exonerees raised claims of innocence based on newly discovered evidence - none were successful.
The study also reviewed DNA claims. Many of defendants who ultimately were exonerated had been denied DNA testing - some on multiple occasions. There were even some who obtained DNA results, and still had relief denied.
So what does all this mean? The obvious answer is that courts do a poor job of evaluating innocence. The study notes that factual claims are not "privileged", and that the system is skewed toward procedural claims. Part of that is the court's reluctance to second guess jury verdicts; the fact is that once you are found guilty the courts presume you are guilty. Courts must look solely at the record, which may be incomplete. As it stands now, there is no way to fill in the gaps.
Even when a direct claim of innocence is not made, it is still an issue. To obtain relief you have to show harm, which means the error influenced he trial. As the study demonstrates, courts are not hesitant to evaluate evidence of guilty. I wonder if the judges who declared evidence "overwhelming" have second thoughts - or regrets.
What all this shows is a system biased toward affirming convictions. Until courts are willing to accept responsibility for ferreting out viable claims of innocence, there will be no change. Not only is a change in the mindset needed, procedural changes are also necessary so that advocates the resources and ability to raise claims of innocence. Something must be done, because no one deserves to remain in jail for years before his innocence is recognized.
