CHAPTER 9 DETECTING AND CORRECTING MISCARRIAGES OF JUSTICE
| Jurisdiction | United States |
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 prisoner claims of actual innocence.
• Appreciate the value of the proper preservation of evidence to postconvictions 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 Navy wife named Michelle Moore-Bosko (See Wells & Leo, 2008). All four had falsely confessed 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 fully and formally recognized by the Commonwealth of Virginia. Throughout this chapter, we will return to the story of the Norfolk Four to illustrate the mechanisms through which wrongfully convicted defendants secure their freedom and are ultimately 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 there are opportunities 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 the appeals and post-conviction remedies. We briefly outline the review process again here and reiterate it more fully below. After judgment is entered, 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 (i.e., petition for a writ of certiorari), but only if federal constitutional issues are involved. Petitions for writs of certiorari are rarely granted. About 7,000 to 8,000 cases 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, 2017). If the Court refuses to hear the case, the defendant may return to the state trial court for postconviction 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 in a federal district court (trial court), with appeals possible to a federal court of appeals, followed by a petition for writ of certiorari to the U.S. Supreme Court (Garrett, 2008).
Before beginning our discussion, we offer three notes. 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 is a federal system, and as such, includes diverse state and federal systems of criminal justice. States have the power to administer their justice systems as they see fit, 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 one process. Third, options for those convicted upon a plea of guilty are more limited because often one of the conditions of entering a guilty plea is the waiver of the right to appeal (King, 2014). As a consequence, it is that much 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. However, all of the states and the federal government 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...
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