Procedure trumps justice: judicial inactivism in Alabama and its unjust result.

• Author: Tartt, Clayton

FAGAN V. ALABAMA

1. INTRODUCTION

   "Justice is the means by which established injustices are sanctioned." (1) Alabama does not have a procedure for the wrongly convicted to pursue claims of actual innocence. Fagan v. Alabama is the most recent in a line of cases in the state of Alabama that places procedure paramount to justice. (2) The Alabama Court of Criminal Appeals has affirmed the denial of all post-conviction DNA requests from incarcerated individuals. (3) In Fagan, without addressing the merits of the claim, the court upheld the denial of an individual's request for post-conviction DNA testing, which could exonerate him, simply because Alabama does not have a procedure in place for such a request. (4)

   The holding in Fagan raises some significant concerns. First, the decision raises the question of whether judicial procedure is more important than justice and truth. Second, the decision raises the question of whether judicial inactivism in Alabama courts might cost some innocent citizens their freedom. And lastly, the holding begs the question as to why the reasoning used in Fagan and similar cases has persisted when there are easy ways to remedy the injustice created therein.

   While the reasoning in Fagan will inevitably yield the exact same results in every situation, it is incorrect. The dissent in Fagan, which adopts the dissent from Barbour v. Alabama, correctly addresses the problem by requiring the court to remand the case back to the circuit court with guidelines of how to review requests for post-conviction DNA testing? This course of action is within the court's powers and would lead to a more just result than the majority's inaction.

   The first section of this Note discusses the procedures used to request DNA testing after conviction and direct appeal. Specifically, it highlights the lack of such procedure in Alabama. The second section gives the facts and procedural posture of Fagan. The third section is an analysis of Fagan that discusses: (1) the do-nothing approach of the Alabama Court of Criminal Appeals; (2) the effect of a lack of procedure and the need for a solution; (3) alternative procedures from other jurisdictions, including legislative remedies; and (4) suggestions to alleviate this problem in Alabama. The last section of this Note contains a summary and conclusion.

2. BACKGROUND INFORMATION

   1. The Problem: Wrongful Conviction

      Across the nation, courts and legislatures are slowly reacting to advances in science and technology. One of the most important advances to affect criminal law was the advent of DNA technology. (6) Deoxyribonucleic acid (DNA) technology, first introduced in American courts in 1986, is now recognized in all jurisdictions in the country. (7) In the past 23 years, evidence from DNA testing has exonerated over 230 innocent people for crimes which they have been wrongly convicted. (8) Many of these cases share common themes. (9) The wrongly convicted are largely minorities who were convicted as a result of mistaken eyewitness testimony, and the majority spent more than 10 years in prison for crimes they had not committed. (10) This last fact shows that most of these convictions occurred at a time when DNA technology was either not available or not as reliable as it is today. While exonerees' stories may differ in many ways, one thing is certain: without access to post-conviction DNA testing, they would likely still be in prison. (11)

      The need for a procedure to request post-conviction DNA testing is vital to ensure that only those who belong in prison remain there. Most people believe that those in prison deserve to be incarcerated. While this is usually a correct assessment, it does not hold true in every situation. Sometimes the legal system simply fails to work. People run the system, and people are imperfect. The system itself, therefore, is imperfect.

      Science now provides a remedy for some of these imperfections. DNA technology has played the largest role in exonerations in the United States. (12) Of 340 exonerations between 1989 and 2003, 42% were directly attributable to DNA testing. (13) From these numbers, it is quite clear that even though someone receives a fair trial and appeal, the system may still not work. (14) In Alabama's history, courts have exonerated only 34 individuals convicted of felony crimes. (15) Alabama courts have exonerated seven in the past 15 years. (16) Dale and Ronnie Mahan are the only Alabama DNA exonerees. (17) Perhaps more innocent individuals would be freed were Alabama to heed the wisdom of other jurisdictions and provide its inmates with a procedure to request testing and access to the necessary evidence.

      1. Alabama Exonerations

      The Mahan brothers were tried and convicted for rape and kidnapping. (18) The court sentenced both to 55 years in prison. (19) The brothers were convicted after the victim positively identified them as her attackers. (20) The victim alleged that she was abducted while Christmas shopping. (21) Her assailants led her into the woods where they beat and raped her. (22) After this tortuous ordeal ended, she drove herself to the police station. (23) There, the police photographed her and collected evidence using a rape kit. (24) She claimed that, during the assault, she recognized the Mahan brothers as the assailants when they allegedly revealed part of their faces by slightly pulling up stockings that were covering their heads. (25)

      The Mahan brothers received a fair and speedy trial as guaranteed to them by the Constitution. (26) They retained adequate counsel for both the trial and their subsequent appeal. (27) They filed for a rehearing and for a writ of certiorari to the Alabama Supreme Court. (28) The Court rejected both requests. (29) The Mahan brothers properly utilized every legal channel available in Alabama. Yet, the justice system still sent these innocent men to prison. Fortunately for them, their story did not end there.

      Dan King represented the Mahans during trial and on appeal. (30) After they had exhausted all conventional remedies, King filed a Motion for DNA Testing with the circuit court. (31) Shortly thereafter, the governor appointed King to the circuit bench forcing him to relinquish the case to another lawyer, Roger Appell. (32) Appell followed up on the motion, and the court granted it. (33) Appell attributes the success of this motion to the lack of opposition from the district attorney prosecuting the case. (34) Had the prosecution opposed the motion, the court would have likely denied the motion, and the appeals court would have denied the Mahans on appeal just like every other petitioner who has filed a similar motion in Alabama. (35) Innocent petitioners cannot rely on willing district attorneys. The Mahans were lucky. No other court in Alabama has granted a motion for post-conviction DNA testing. (36)

   2. What Can be Done?

      Typically, an inmate wants three things when requesting post-conviction DNA testing: (1) to locate testable evidence through discovery, (2) the right to present the findings in court, and (3) for the state to pay for the testing. (37) Currently, Alabama does not have a procedure in place to handle any of these requests.

      Since courts began using DNA testing in 1986, implementing procedures to handle post-conviction DNA testing requests slowly evolved across the country. In 1997, Illinois was the first state to enact a statute giving convicted criminals the right to request DNA testing after they had exhausted their appeals. (38) A year later New York followed. (39) Eleven years later, forty-two other states, the District of Columbia, and the federal government have enacted statutes providing access to post-conviction DNA testing. (40) Some states have gone even further by creating Innocence Commissions. These Commissions study wrongful convictions and advocate for changes in the legal system with the aim of reducing the number of erroneous convictions. (41)

      Even without legislation, South Dakota is one state that has recognized the need for post-conviction DNA testing by granting testing through its courts. (42) The South Dakota Supreme Court held that post-conviction DNA testing may be required where it would likely produce an acquittal. (43)

      Despite a majority of states allowing DNA testing, Alabama is among five "holdout" states which still have no procedure for post-conviction relief through DNA testing. (44) Some consider Alabama's inaction as a derivative of the political culture of the state. (45) A combination of a law-and-order mentality in politics and a critical lack of resources for indigent defendants make Alabama and similar holdout states non-receptive to reform. (46) Even though the Alabama Legislature and Alabama Supreme Court have yet to respond to this crisis, there may be a slim ray of hope for people in Alabama seeking relief through DNA testing. That ray of hope is found in Rule 32 of the Alabama Rules of Criminal Procedure. (47)

   3. Alabama's Rule 32

      The Sixth Amendment to the United States Constitution guarantees the right to a fair trial. (48) Furthermore, Alabama guarantees a criminal defendant the right to appeal any judgment from a conviction. (49) Alabama also grants a statutory right to appeal the denial of a motion for a new trial. (50) Once a defendant has exhausted these remedies, his only right to relief in state courts comes from Rule 32. (51)

      A person may seek relief under Rule 32 under five conditions: (1) if the Alabama Constitution requires a new trial, (2) if the court was without jurisdiction, (3) if the sentence imposed exceeds the maximum, (4) if the sentence has expired, or (5) if there is new evidence. (52) This Note will focus on the last condition of Rule 32 which requires a new trial upon the discovery of new evidence. Under Rule 32. l(e), a person may seek relief if "newly discovered material facts exist which requires that the conviction or sentence be vacated by the court." (53) There are five...