Innocence after death.

• Author: Wiseman, Samuel

INTRODUCTION

Within the complicated landscape of the effort to identify, explain, and prevent wrongful convictions, an interesting type of proceeding has begun to emerge. Posthumous exonerations, which declare an individual innocent following his (1) death, have been seldom discussed, but they can serve an important role in the innocence movement. The exoneration of a deceased defendant may appear, at first glance, to be a mostly empty gesture, which may explain the lack of attention devoted to this proceeding to date. The posthumous exoneration has an essential corrective justice function, (2) however, for individuals, communities, and societies. At the individual level, posthumous exonerations, which are generally based on DNA evidence or similarly definitive proof of innocence, ensure belated justice. From a systemic perspective, they offer a greater opportunity to reveal the causes of wrongful convictions than do the currently available proceedings to exonerate live defendants. In so doing, they provide valuable data for the reform of the investigation and prosecution of criminal cases. In a world in which the credibility of the criminal justice system and its safeguards is questioned with each new addition to the list of wrongful convictions, (3) this function is essential.

The systemic benefits of posthumous exonerations are twofold. First, on a practical level, cases in which the innocence of a defendant can be scientifically proven after conviction are rare; to date, they have been largely limited to convictions obtained prior to 1989, (4) for which biological evidence continues to be available for DNA testing. Because of the importance of the data and the small size of the potential data set, identifying and investigating each wrongful conviction is critical, regardless of whether the wrongfully convicted defendant is alive or dead. Secondly, because of the unique considerations involved in posthumous exonerations, they present an unusual opportunity for an examination of the problems that led to the defendant's wrongful conviction. Because it is too late to free the innocent defendant, the families and attorneys who bring posthumous innocence claims are likely to turn instead to the question of how the convictions were obtained--and the judges who hear such cases are more likely to provide the answers. This was demonstrated in a 2009 Texas case, when a county district judge, while exonerating Timothy Cole ten years after his death, conducted a searching inquiry into the causes of his conviction. (5) In its opinion, the court described the entire course of evidentiary and investigatory missteps and provided recommendations to the legislature for reform. (6)

The posthumous exoneration of Timothy Cole--and the four others that have occurred since DNA testing was first used to prove post-conviction innocence--represent an important extension of the innocence movement and demonstrate that actual innocence proceedings of all types could be used, not only to exonerate individual defendants, but also to illuminate the causes of wrongful convictions.

Since the first post-conviction DNA exoneration of an innocent criminal defendant in 1989, (7) the legal literature has closely followed the more than two hundred convicted defendants who have proven their innocence through this new technology. (8) Although innocence claims were made prior to the DNA revolution, (9) their importance and numbers have swelled with the help of science, as DNA can offer--unlike the recanting of a jailhouse snitch or another individual's post-trial confession to the crime--conclusive evidence of actual innocence: "DNA evidence is 'uniquely probative' and 'timeless' if preserved and tested properly." (10) This certainty makes DNA exonerations extremely useful in the study of the causes of wrongful convictions. (11) The means of achieving post-conviction justice through the use of this evidence, however, have been as varied as the cases themselves.

A diverse array of parties have initiated efforts to exonerate innocent defendants, from the defendants themselves (in living exoneration cases) to family members, (12) innocence projects, (13) religious groups, (14) the media, (15) and even representatives of foreign governments. (16) When these parties seek exoneration through the courts, the forum in which nearly eighty percent of the post-conviction exonerations since 1989 have occurred, (17) they face limited procedural options. They may make a motion for new trial based on newly discovered evidence (an option often accompanied by a strict statute of limitations), (18) raise a habeas claim, (19) or invoke coram nobis, either in its common-law form or through a judicial or legislative codification, to address facts and evidence previously not before the court. (20) When successful, these efforts typically result in formal dismissal of charges, vacation of an indictment and conviction, reversal of a case with instructions for a directed verdict of not guilty, or acquittal on retrial based on proof of non-participation in a crime. (21) Recently, some states have also passed innocence legislation to provide a formal venue through which parties may request DNA testing, although these laws generally do not provide a process for formal exoneration if the testing proves the defendant's innocence. (22) Due to these limited options, parties have turned to creative methods to obtain a formal exoneration. Although with decreasing frequency, some exonerations have occurred through state governors' and executive boards' pardons; (23) others occur through prosecutors' extrajudicial decisions to drop charges at the post-conviction stage. (24)

Many academic studies of post-conviction exonerations focus on the evidentiary and investigative errors leading to wrongful convictions, including reliance upon questionable eyewitness testimony, introduction at trial of false confessions or testimony from jailhouse informants, misuse or misidentification of "non-DNA-tested forensic evidence" such as hair and blood samples, (25) and prosecutorial misconduct, such as the knowing elicitation of perjured testimony or the failure to disclose exculpatory evidence. (26) Other literature focuses on the difficulty of obtaining DNA testing or raising an actual innocence claim in court, (27) and suggests ways to improve access to court, arguing for constitutional innocence claims and better legislation. (28) Few of these studies, however, describe in detail the judicial proceedings or executive actions that have ultimately exonerated defendants or the findings that were made as part of those proceedings. (29) This Article will begin to fill this gap by illuminating the value of posthumous exonerations and their role in the innocence movement, focusing on how these proceedings allow courts to make meaningful findings on the causes of the underlying conviction. It will suggest how the civil, quasi-inquisitorial investigation followed in one posthumous exoneration in Texas could serve as a model, not only for subsequent posthumous proceedings, but also, with certain modifications, for all exonerations, producing more and better findings on the causes of wrongful convictions.

Part I will describe the Cole case and the other posthumous exonerations that have occurred in the last two decades. Part 1I will argue that posthumous exonerations are worthwhile from an individual justice perspective in their provision of remedies, and that they are justified by the rationale behind the abatement doctrine, which firmly closes a case and vacates the conviction and indictment upon the death of the defendant. Although, unlike a posthumous exoneration, the abatement doctrine requires the closure of a case upon the death of the defendant, it does so for reasons such as fairness and the avoidance of wrongful conviction--reasons that overlap with the purposes of posthumous exonerations. Part III will focus on how posthumous exonerations contribute important data points to a small set of DNA exonerations used in the study of wrongful convictions, thus providing more findings to support broader reforms. It will then describe the failure of existing exoneration procedures to investigate the causes of wrongful conviction and the resulting creation, in some states, of innocence commissions. Part 1V will argue that posthumous exonerations offer courts a unique opportunity to conduct an inquiry into how the erroneous conviction was obtained and will urge that where innocence commissions do not exist, legislatures should expand the procedural and jurisdictional bases for these proceedings. This Part will discuss the necessary elements of a useful posthumous exoneration statute, comparing arguments for quasi-inquisitorial and adversarial exoneration proceedings. The Article will conclude that, while posthumous exonerations may present the best opportunity for generating judicial findings on the factors leading to the conviction of innocent defendants, these findings should be encouraged in all exonerations.

1. POSTHUMOUS EXONERATIONS: FIVE DEFENDANTS, FOUR STATES

   1. Defining and Counting Exonerations

      The true number of exonerations, including posthumous ones, is difficult to identify. Samuel Gross, in a University of Michigan study of exonerations from 1989 through 2003 that offers the "most comprehensive compilation of exonerations available," (30) identified a total of 340 exonerations during that time period--144 of which relied upon DNA evidence (31)--but emphasized that the study was not exhaustive. (32) Because the criminal justice system is administered at multiple levels of government, and because capital cases tend to get much of the focus, many exonerations fail to surface in even the most detailed studies. (33) Gross suggests that if prison sentences were reviewed as scrupulously as death sentences, the past fifteen years would have yielded over 29,000 "non-death row...