Federal Habeas Corpus Review Is Broken

• Author: Jonathan Potts, Charles Weiss, Stephen Snodgrass
• Pages: 34-40

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 34

Federal Habeas Corpus

Review Is Broken

JONATHAN POTTS, CHARLES WEISS, AND STEPHEN SNODGRASS

The authors are with Bryan Cave Leighton Paisner, St. Louis.

The instinct to correct wrongful convictions is part of our na

-

tional conscience. Books like To Kill a Mockingbird have molded

many Americans’ basic notions of right and wrong. Recently, pop-

ular media like the podcast Serial and the docuseries Making a

Murderer have recaptured national attention and provoked public

debate about the complexities—and grayer areas—of innocence.

Exoneration is a topic that would seem likely to focus on the

facts more than on the law. Few non-lawyers would balk at the no-

tion that a duly convicted prisoner who can prove his innocence

should be freed at a moment’s notice. Yet the current system of

federal habeas corpus review makes it exceptionally difficult—

and in some cases literally impossible—for innocent people to

regain their freedom.

Over the past 12 years, our pro bono practice has exonerated

four men wrongfully convicted of murder: Josh Kezer (2009),

George Allen Jr. (2013), and David Robinson (2018), and Donald

Nash (2020).

Each of these men was innocent in the purest sense of the

word: He simply didn’t do it. But none of these exonerations

came with the cooperation of prosecutors after their review

of the evidence. None came through an act of executive grace.

Each exoneration was its own long and expensive battle against

unnecessary legal obstacles. Throughout this piece, we’ll draw

on Donald Nash’s and David Robinson’s cases to illustrate the

shortcomings of the federal habeas system. Both cases are recent,

both men are obviously innocent, and both men spent many years

in prison unsuccessfully litigating in federal court.

The authors are not bleeding hearts. Outside of these cases,

we are primarily defense-side business litigators (which is not

to say we’re heartless either). The observations in this piece are

informed by our background as civil litigators who take on in-

nocence cases for free, and not criminal defense attorneys, public

servants, or even nonprofit attorneys who spend their careers

living and breathing this system. We took on these cases simply

because each one of these exonerees was able to persuade us

of his innocence, despite knowing we could toil for years with

uncertain odds of success.

Habeas corpus is civil, although it “feels” criminal. But within

the realm of civil litigation, habeas corpus plays by its own rules.

Those rules do not feel civil or criminal. In “regular” civil cases,

courts consider allegations with an open mind and allow the par-

ties to conduct discovery and present evidence. In habeas cases,

however, a hidden switch is flicked. Success is not simply about

carrying a high burden of proof. Rather, in most cases, allegations

of innocence, and even evidence of innocence, receive a system-

atically frosty reception of distrust. This sense of distrust per-

vades almost every case, even when the allegations involve new

evidence that no one—the prisoner, the prosecution, the judge,