A survey of federal and state courts' approaches to a constitutional right of actual innocence: is there a need for a state constitutional right in New York in the aftermath of CPL s. 440.10(G-1)?

• Author: Leventhal, John M.
• Position: New York State Criminal Procedure Law - Introduction through Conclusion, p. 1453-1487

ARTICLE CONTENTS INTRODUCTION I. ACTUAL INNOCENCE IN THE FEDERAL COURTS A. Background: Actual Innocence Claims for Federal Habeas Relief 1. Herrera v. Collins 2. Schlup v. Delo 3. The Antiterrorism and Effective Death Penalty Act of 1996 4. Circuit Courts Split on Existence of Freestanding Claims of Actual Innocence B. Policy Considerations and Federalism Concerns Surrounding Actual Innocence Claims C. The Possibility of a Freestanding Constitutional Claim of Actual Innocence 1. Justice Scalia's Dissent in In re Davis a. In re Davis b. Scalia Challenges the Court to Squarely Address the Actual Innocence Question II. CLAIMS OF ACTUAL INNOCENCE AT THE STATE LEVEL A. Newly Discovered Evidence B. DNA Evidence C. States that Recognize Freestanding Claims of Actual Innocence III. CLAIMS OF ACTUAL INNOCENCE IN NEW YORK STATE CONCLUSION APPENDIX INTRODUCTION

Should a defendant convicted of a capital offense and sentenced to death, who was not deprived of any constitutional right at trial be executed, when the defendant was actually innocent? Should any defendant who suffered no other violation of a constitutional right and received a fair trial remain incarcerated when the defendant is actually innocent? Morally we would all answer these questions in the negative. Yet in the legal realm, the answers are unclear. The Supreme Court has not recognized a convicted defendant's freestanding claim of actual innocence, and in fact has not squarely faced this issue. (1) The individual states have taken differing approaches to claims of actual innocence. No appellate court in New York has considered whether a freestanding claim of actual innocence exists under the state constitution. Recent legislation in New York may have impacted one's view of whether such a freestanding claim is needed. The first section of this article reviews the federal jurisprudence in this area and how the Supreme Court and the various Circuit Courts of Appeal have approached this issue. The second section discusses the various ways that the individual states consider claims of actual innocence. The last section examines how New York trial courts have treated these claims in the absence of any appellate precedent. In the final section, the question that is raised and considered is whether there is still a need for a freestanding state constitutional claim of actual innocence in light of a recent amendment to the New York State Criminal Procedure Law.

1. ACTUAL INNOCENCE IN THE FEDERAL COURTS

   Over the past few decades, actual innocence has become a highly contested issue in federal habeas review of criminal convictions. (2) Claims of actual innocence arise when a petitioner (3) asserts that he is factually innocent of the convicted crime in post-conviction litigation. (4) In seeking federal habeas relief, (5) the defendant claims not merely that the prosecution failed to legally prove that he committed the crime, but rather that he was not actually the offender (6) and that the state tried and convicted the wrong person. In order to successfully bring a claim of actual innocence, the petitioner must meet an "extraordinarily high" burden. (7) A petitioner must prove that no reasonable juror would convict, taking into consideration both newly discovered evidence not available at trial as well as all previous evidence that was introduced and led to the petitioner's conviction. (8)

   The U.S. Supreme Court has never held that a petitioner's right to bring an actual innocence claim derives from the federal Constitution. It has consistently left that question open. (9) The Court, however, may use an opportunity in the future to define a petitioner's rights more clearly and conclude that actual innocence is or is not a freestanding constitutional claim.

   This section will first discuss the background of actual innocence claims in federal habeas corpus jurisprudence. Next, the "gateway" standard established in two U.S. Supreme Court cases, Herrera v. Collins and Schlup v. Delo, will be discussed. In both of these cases, the Supreme Court rejected the idea that actual innocence exists as a freestanding constitutionally cognizable claim. (10) Further, this section will address the existing policy considerations and federalism concerns surrounding freestanding claims of actual innocence. Finally, this section will discuss the possibility that a freestanding claim of actual innocence may be recognized under the federal Constitution. As Justice Antonin Scalia suggested in his dissent in In re Davis, (11) the author urges the Supreme Court to squarely address the question. (12)

   1. Background: Actual Innocence Claims for Federal Habeas Relief

      Federal courts have defined actual innocence in different ways. For the purposes of this section, actual innocence will be defined as a freestanding constitutional claim that does not require an underlying, independent constitutional claim for it to be heard on the merits. The Supreme Court in Herrera and Schlup defined actual innocence as a gateway or "basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits." (13)

      The Supreme Court has defined a claim of "actual innocence" as constituting either (1) a substantive argument that, as a matter of fact, the petitioner did not commit the acts that constitute his crime of conviction, adding that he must prove such an assertion by "truly persuasive" newly discovered evidence; or (2) a procedural argument that constitutional errors at trial, along with newly discovered evidence of his factual innocence, undermine the certainty of the petitioner's conviction. (14) The petitioner must be able to prove "factual innocence, not mere legal insufficiency" and "demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him."' (15)

      However, the Supreme Court has never held that a freestanding claim of actual innocence is discernible under the federal Constitution. (16) Instead, the Court has consistently held that such claims act as "a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred constitutional claim considered on the merits." (17) Herrera and Schlup promulgated the standards by which habeas petitioners may pursue their claims of actual innocence. (18) The Court declined to hold that a federal habeas court may grant relief to a petitioner solely on the basis of an actual innocence claim. (19) Actual innocence, therefore, is not the substantive claim petitioner sets forth to request habeas relief. It is, instead, merely a procedural tool that a petitioner may employ to have a court hear an independent substantive claim and address such claim on its merits. (20) The Court in Herrera made clear that an actual innocence claim, standing alone, was insufficient for a constitutional claim. (21) The Herrera Court addressed the rare case of a petitioner making a substantive claim of actual innocence, rather than a purely procedural one with an underlying independent constitutional claim. (22) Alternatively, in Schlup, the Court addressed a procedural claim of actual innocence coupled with an independent constitutional claim. (23)

      The Supreme Court in Herrera and Schlup, without finding that a constitutional claim of actual innocence exists, established a high bar in order for a petitioner to succeed in maintaining such a potential claim. (24) It accomplished this by never explicitly addressing the issue. In declining to directly answer whether or not actual innocence is, itself, a freestanding constitutional claim, the Court provided future courts the opportunity to answer the question and thoroughly develop federal actual innocence jurisprudence.

      1. Herrera v. Collins

         Petitioner Leonel Torres Herrera was convicted of capital murder of Los Fresnos, Texas Police Officer Enrique Carrisalez, and sentenced to death. (25) Ten years following his conviction, subsequent unsuccessful appeals, and a habeas petition, Herrera filed a second habeas petition claiming "he was 'actually innocent' of the murder for which he was sentenced to death." (26) He further claimed that his sentence would violate the Eighth and Fourteenth Amendments. (27) In support of his petition, Herrera submitted affidavits offering that his now-dead brother was actually the one who committed the murder, and that he was factually innocent. (28)

         The district court dismissed Herrera's claim but granted the stay of execution so petitioner could present his actual innocence claim. (29) Relying on Townsend v. Sain, (30) the Fifth Circuit vacated the stay and held that Herrera did not have a cognizable claim. (31) The Supreme Court granted certiorari and affirmed. (32) The Herrera Court held that "[c]laims 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." (33) The Court denied him relief. (34)

         The Court held that Herrera did not allege an independent constitutional violation; rather his asserted claim of actual innocence was claiming an independent constitutional violation. (35) Herrera "argue[d] that he [was] entitled to habeas relief because newly discovered evidence show[ed] that his conviction [was] factually incorrect." (36) His claim, however, did not supplement an underlying constitutional claim. (37) The Herrera Court, in finding the petitioner's claim not cognizable, denied the petitioner relief, but noted that he was not without a forum to raise his claim of actual innocence. (38)

         Though the Court stated that actual innocence claims based on newly discovered evidence required a complementary constitutional violation, it further held that, assuming a freestanding claim existed, the threshold for showing this "assumed right would necessarily be extraordinarily high." (39) Thus, petitioner would be...