Innocence as mere gatekeeper.

• Author: Clessuras, James G.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Schlup v. Delo,(1) the United States Supreme Court addressed Lloyd E. Schlup, Jr.'s petition for the federal writ of habeas corpus. Schlup, an inmate on Missouri's deathrow, presented new evidence indicating that he was actually innocent of the crime for which he was convicted and sentenced to death. Procedurally, rules generally preclude the availability of habeas review to capital prisoners, such as Schlup, who have already failed to obtain habeas relief through a prior petition. In Schlup, however, the Court held that federal habeas courts may address a capital prisoner's second or subsequent habeas petition if, in light of new evidence of innocence, it is "more likely than not that no reasonable juror would have convicted him."(2) In adopting "more likely than not" as an evidentiary standard, the Court rejected its own more stringent precedent which opened the "gateway" to habeas review only upon a showing of "clear and convincing" evidence.(3) Thus, the holding in Schlup reflects a heightened respect for the individual interests of capital prisoners who have newly discovered evidence of innocence. This Note argues, however, that although the Court's less stringent standard for "gateway" claims of innocence was appropriate, it will do very little to prevent innocent people from being executed.

   First, "gateway" claims of actual innocence are a creature of legislative grace and equitable considerations. Thus, the Court's "more likely than not" standard is open to seemingly imminent congressional reversal.(4) Moreover, the Court's "gateway" standard provides tenuous protection under the existing law because Schlup does not require, but appears only to permit, federal courts to reach the merits of habeas petitions that are supplemented with evidence of innocence meeting the "more likely than not" standard.

   On the other hand, habeas petitioners with truly persuasive evidence of innocence would seem constitutionally entitled to habeas review if the Constitution prohibits the execution of innocent people. This Note does not argue whether actual innocence should be considered a bona fide constitutional claim. Because Schlup presented truly persuasive evidence of innocence, this Note argues that the Court should have answered the question of whether the execution of an innocent person is unconstitutional. The clear implication of the Court's silence on this issue is that the Constitution provides no such protection. Thus, it appears that mere evidence of innocence does not entitle an actually innocent prisoner to habeas review.

2. BACKGROUND

   The writ of habeas corpus(5) is the exclusive federal remedy available to a state prisoner who challenges the fact or duration of his confinement and seeks as relief a speedier or immediate release.(6) However, federal habeas courts are not free to entertain the claims of every state prisoner who petitions for the writ. For federal jurisdiction to apply, a state prisoner's habeas petition must contain a cognizable issue for review, and must satisfy certain procedural prerequisites.(7) Evidence that a habeas petitioner is either legally(8) or factually innocent(9) of the crime for which he was convicted may be relevant in determining whether his petition satisfies both requirements.

   1. COGNIZABLE ISSUES FOR REVIEW

      1. Violations of Constitutional Rights

         Federal courts have jurisdiction to entertain a state prisoner's petition for habeas corpus relief where confinement violates the prisoner's constitutional rights.(10) Although it is unclear whether factual innocence of a crime by itself can present a constitutional basis for habeas relief, innocence is not wholly irrelevant. First, because several constitutional provisions protect the innocent from unjust conviction and sentencing, a habeas petitioner who is factually innocent, but who was found guilty at a state proceeding, may have grounds to assert that a constitutional deprivation occurred at his trial. For example, conviction of a factually innocent person may have occurred because trial counsel was ineffective. Because the Sixth Amendment to the United States Constitution(11) guarantees a right to the "effective assistance of counsel,"(12) such a petitioner would have a cognizable issue for habeas relief.

      2. Conviction Despite Inadequate Evidence-"Legal Innocence" as a Constitutional Claim Under Jackson v. Virginia

         Besides relying on specific procedural guarantees, a factually innocent habeas petitioner may also establish a cognizable issue for review based on the Fourteenth Amendment's general guarantee of due process. The Supreme Court has interpreted the Due Process Clause as embodying the evidentiary standard of proof that the Constitution requires in criminal cases--"proof beyond a reasonable doubt."(13) Therefore, a habeas petitioner effectively alleges a violation of his constitutional rights (and presents a cognizable issue for habeas review) when claiming that evidence adduced at trial did not prove his guilt beyond a reasonable doubt.(14)

         In Jackson v. Virginia,(15) the Court articulated a "rationality" standard to govern habeas court review of cases where petitioners claim imprisonment based on constitutionally inadequate evidence. Under the Jackson rationality standard, habeas courts should ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found . . . [guilt] beyond a reasonable doubt."(16) In explaining the proper application of this standard, the Jackson Court held that habeas courts should consider only record evidence.(17) The inquiry that a habeas court makes when applying the Jackson rationality standard is therefore not whether the petitioner is in fact innocent of the crime for which he has been convicted. Rather, the Jackson inquiry is limited to the narrower issue of whether a prisoner's confinement was based on legally sufficient evidence of guilt. That is, whether the prisoner is legally innocent.(18)

      3. Conviction and Death Sentence Despite Actual Innocence--"Factual Innocence" Under Herrera v. Collins

         The Jackson Court did not answer the question of whether a persuasive claim of factual innocence, as opposed to legal innocence, could present a cognizable issue for habeas review. Whether this kind of actual innocence claim could, by itself, present a cognizable issue for habeas review depends on whether or not it is unconstitutional to imprison (and even execute) someone who is factually innocent but whose trial was otherwise free of constitutional error. In the 1993 case of Herrera v. Collins,(19) the Supreme Court intimated, but declined to hold, that the imprisonment or execution of a factually innocent person does indeed violate the Constitution.

         In Herrera, Leonel Herrera invoked both the Eighth(20) and the Fourteenth Amendments(21) to support his claim that his imprisonment and death sentence violated the Constitution and therefore presented a cognizable issue for habeas review.(22) Leonel Herrera claimed that his deceased brother, Raul Herrera, Sr., had committed the murders of the two police officers for which he (Leone!) was under sentence of death.(23) To support his claim, Leonel Herrera relied not on allegations of error at trial, but on new evidence in the form of affidavits that he procured only after exhausting state court remedies.(24)

         Although the Supreme Court ruled against Herrera, the Court did not completely dismiss the contention that the Constitution bars the execution of factually innocent people. Instead, Chief Justice Rehnquist, writing for the Court, chose to "assume, for the sake of argument . . . that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional."(25) Chief Justice Rehnquist did not articulate an evidentiary test for such constitutional claims. Instead, Rehnquist merely stated that a habeas petitioner would have to meet an "extraordinarily high" threshold before receiving a full habeas hearing on the claim of innocence.(26)

         Without articulating the standard he was applying, Chief Justice Rehnquist nonetheless concluded that the affidavits attesting to Leonel Herrera's innocence did not present a sufficiently persuasive case.(27) In reaching that conclusion, the Chief Justice emphasized the weaknesses in Herrera's affidavits. For example, Rehnquist noted that the affidavits contradicted one another,(28) and that there was no explanation for why statements by supporting affidavits came ten years after the murders had been committed.(29) Chief Justice Rehnquist also emphasized the strength of the proof of Leonel Herrera's guilt that was adduced at trial.(30)

         Although Chief Justice Rehnquist would not express an opinion as to whether there is a constitutional prohibition against the execution of a person who has made a persuasive showing of actual innocence (discussing the purported prohibition only arguendo), six justices--three dissenting and three concurring--concluded that such a prohibition exists. The three dissenting justices(3l) argued that under the circumstances of Leonel Herrera's case, the Court should have held that the Constitution bars the execution of innocent people.(32) Three concurring justices33 also concluded that the Constitution bars the execution of innocent people.(34) Yet these concurring justices believed that the Court properly sidestepped the issue because in this specific case Leonel Herrera failed to present a persuasive showing of actual innocence.(35) Thus, after Herrera, it appeared that if a petitioner could make a showing of innocence sufficiently stronger than did Leonel Herrera, a majority of the Court would hold that the Constitution bars the execution of the innocent.(36)

         However, several justices questioned whether the Court would ever again need to entertain the issue of whether the Constitution prohibits the execution of a...