Chapter 11 Detecting and Correcting Miscarriages of Justice
| Jurisdiction | North Carolina |
After reading this chapter, you should be able to:
• Outline the stages of the appellate and post-conviction processes.
• Appreciate the limitations of appellate courts in correcting wrongful convictions.
• Understand the extent and limitations of state post-conviction review, federal habeas corpus, and executive clemency in addressing prisoners' claims of actual innocence.
• Appreciate the value of the proper preservation of evidence to post-conviction claims of innocence.
In 2017, Virginia Governor Terry McAuliffe gave absolute pardons to Danial Williams, Joseph Dick, Jr., Derek Tice, and Eric Williams (Jackman, 2017). The four men, U.S. Navy veterans who became known as the Norfolk Four, had been wrongly convicted of the 1997 rape and murder of a young woman, the wife of a Navy seaman, named Michelle Moore-Bosko (see Wells & Leo, 2008). All four men had falsely confessed to the crimes under harsh interrogations conducted by since-discredited Norfolk Police Department Detective Robert Glenn Ford. It was a long road from arrest to pardon for the four men. Along that road, there were many opportunities to detect and correct their wrongful convictions. Most notably, DNA testing excluded the four men and implicated another man, Omar Ballard, who confessed to committing the crime alone. These latter facts were known at the time of their trials. Yet, it took nearly 20 years for their innocence to be formally recognized and full corrective measures to be taken by the Commonwealth of Virginia. Throughout this chapter, we will return to the story of the Norfolk Four to illustrate the mechanisms through which erroneously convicted defendants attempt to secure their freedom and ultimately be relieved of responsibility for their wrongful convictions.
• Wrongful Conviction with Jason Flom — a fascinating podcast, which began airing in 2016, features interviews with women and men who were exonerated after spending years in prison for crimes they did not commit.
• The Wrong Carlos — explore the website, watch the interviews, and read the book (2014) — all produced by Columbia Law professor James S. Liebman and the Columbia DeLuna Project. Then decide for yourself whether the state of Texas executed an innocent man.
For innocent defendants convicted at trial, opportunities exist to detect and correct miscarriages of justice in the appellate and post-conviction process. In chapter 1, we provided an overview of the criminal process, including appeals and post-conviction remedies. We briefly outline the review process again here and describe it more fully below. After judgment is entered following a criminal trial, a convicted defendant will have a first appeal (usually as of right), which is taken in most states to an intermediate appellate court. If unsuccessful there, the defendant can ask the state high court to review the intermediate appellate court's decision. Thereafter, the unsuccessful defendant may request the U.S. Supreme Court to review the case via a petition for a writ of certiorari, but only if federal constitutional issues are involved in cases of individuals convicted of crimes in a state court. Petitions for writs of certiorari are rarely granted. Roughly 7,000 to 8,000 cert. petitions per year are filed with the U.S. Supreme Court, yet the Court typically only grants plenary review in about 80, or roughly 1% of the filings (U.S. Supreme Court, n.d.). If the Supreme Court refuses to hear the case, or if the defendant chooses not to file a petition for a writ of certiorari, the defendant may return to the state trial court for post-conviction proceedings, with another round of state court appeals, requests for discretionary review, and petition to the U.S. Supreme Court possible. Finally, if all these measures fail, the defendant may seek habeas corpus review of federal constitutional issues implicated in a state criminal conviction in a federal district court (trial court), with appeals possible to a federal court of appeals, followed again by a petition for writ of certiorari to the U.S. Supreme Court (Garrett, 2008).
Before beginning our discussion, we make three observations. First, although the process is primarily the same for innocent or guilty defendants convicted at trial, we focus here on the particular concerns of innocent defendants. Second, the United States has a federal system of government, and as such maintains both state and federal systems of criminal justice. States have the power to administer their justice systems in a manner they deem appropriate, as long as they do not violate federal constitutional mandates. Court systems and procedures vary widely across the states. In that regard, we use the term, "the process" loosely to capture the commonalities among the various systems rather than to imply that there is just one process. Third, options for those convicted upon a plea of guilty are more limited, in part because one of the conditions of entering a guilty plea often is the waiver or loss of the right to appeal (King, 2014; Miller, 2020). As a consequence, it is considerably more difficult for convictions based on false guilty pleas to be reversed.
Appeals
It may be surprising to know that the U.S. Constitution does not guarantee criminal defendants a right to appeal their convictions. Indeed, historically, many jurisdictions did not authorize a right of appeal from a criminal conviction. However, all of the states and the federal government now provide the right to a first appeal in the overwhelming majority of cases through statutory or state constitutional law (Robertson, 2013). Most, but not all states have both intermediate courts of appeal and courts of final jurisdiction, which normally are called supreme courts. Thus, in most states, the intermediate appellate court hears appeals as of right and the state's highest court has discretionary review, meaning it can by and large choose which cases it will hear (Waters et al., 2015).
Appeals serve several important functions, including correcting legal errors and articulating and developing governing legal principles through the precedential effect of appellate court decisions. To a much lesser extent, appellate courts can "play an additional role in guarding against wrongful conviction of the innocent" (Robertson, 2013, p. 1225). The appellate process arguably is poorly suited to correct wrongful convictions. Appeals courts almost exclusively concern themselves with issues of law, rather than re-examining the facts of a case. "Appeals and postconviction remedies in the United States were designed to ensure that police, lawyers, and judges follow the legal rules during the investigation or prosecution of the case. So long as the rules were followed, the adversarial process is presumed to produce reliable results" (King, 2014, p. 217).
Direct appeals from convictions are often referred to as being limited to "record review" because the appellate court only reviews the evidence and testimony preserved in the record made in the trial court. Appellate courts do not consider new evidence that may have come to light after the trial concluded (even evidence of innocence) or evidence of conduct that occurred outside of the trial record, such as ineffective assistance of defense counsel or misconduct on the part of government actors (King, 2014). For example, Derek Tice, of the Norfolk Four, recanted his false confession before his case went to trial. However, rather than focusing on whether his statements were or were not reliable, the issues on his direct appeal concerned whether the trial court properly instructed the jury on accomplice liability for capital murder and whether the court erred in refusing to admit Omar Ballard's confession to killing Moore-Bosko (Tice v. Commonwealth, 2002). Whether a defendant falsely confessed involves issues of fact, which standing alone do not serve as a basis for constitutional relief. In contrast, a claim that a confession was involuntary because of coercion raises an issue of law, which can be addressed on appeal, although it may be difficult to establish owing to the Supreme Court's rather demanding test for determining whether a confession was made involuntarily (Garrett, 2008).
King's observation above highlights an important question that researchers have attempted to answer: How effective is the appellate process...
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