FINALITY, HABEAS, INNOCENCE, AND THE DEATH PENALTY: CAN JUSTICE BE DONE?
Ellyde Roko(fn*)
Abstract: In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate's claim on the merits could lead to the execution of an innocent person.
This Article argues that the Supreme Court's 2009 response to a petition for an original writ of habeas corpus in In re Davis(fn1) shows that courts have gone too far. Rather than merely weeding out frivolous claims or showing deference to reasoned state court decisions, federal courts have allowed arcane procedural rules to prevent even meritorious claims from being heard. The Supreme Court's rare intervention should encourage courts to interpret procedural rules less stringently in an effort to make sure justice is done.
INTRODUCTION................................................................................108
I. PROCEDURAL RESTRICTIONS INCREASINGLY HAVE PREVENTED COURTS FROM REVIEWING HABEAS PETITIONS ON THE MERITS................................................... 1 12
II. THE SUPREME COURT ELEVATED PROCEDURE OVER JUSTICE IN THOMPSON V. CALDERON..................................115
A. The Ninth Circuit Acted to Prevent a Miscarriage of Justice.................................................................................115
1. Substantive Considerations: Thompson's Claims for Relief............................................................................116
2. Procedural Considerations: AEDPA Requires Recall of the Mandate..............................................................119
B. The Supreme Court Reversed the En Banc Court on Procedural Grounds Without Considering the Merits........120
C. The Supreme Court's Decision Led to an Unjust Result.... 122
III. DAVIS COULD ALLOW COURTS TO FOCUS ON THE MERITS IN CERTAIN FACTUAL SITUATIONS....................124
A. The Eleventh Circuit in Davis Applied AEDPA in a Potentially Unconstitutional Way.......................................125
B. Davis Could Shift the Focus from Process Back to Substance............................................................................127
CONCLUSION....................................................................................129
INTRODUCTION
In the August 2009 case of In re Davis(fn2) the Supreme Court of the United States took the unusual step of directing a district court in Georgia to conduct an evidentiary hearing on the possible innocence of a death row inmate.(fn3) After seeking relief from the Georgia Supreme Court(fn4) and the U.S. Court of Appeals for the Eleventh Circuit(fn5) without success, the inmate petitioned the Supreme Court for an original writ of habeas corpus.(fn6) The Court had not granted such a writ in nearly fifty years.(fn7) Surprisingly, the Court directed the district court to hold an evidentiary hearing on the claim.(fn8) As Justice John Paul Stevens wrote in a concurring opinion, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."(fn9)
The procedural rarity of the case, however, quickly fell under the shadow of Justice Antonin Scalia's proclamation in a dissent. "This Court," Justice Scalia wrote,has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.(fn10)
The Supreme Court's dramatic action in Davis highlights the failures of the existing system of appellate and habeas review. Davis, unable to achieve relief through the usual state and federal channels, had to rely on an unlikely action of the Supreme Court to avoid a potentially unconstitutional execution. Given the rarity of such relief, the specter of executing condemned inmates innocent of death penalty crimes looms. Indeed, innocent defendants have been sentenced to death(fn11) and evidence suggests some of them have been executed.(fn12) The Davis case highlights a question that most often falls on the shoulders of lower court judges: In the context of the death penalty, can justice be done?
Judge Fletcher posed this question in 1995 while giving the Madison Lecture at New York University School of Law.(fn13) In her lecture, Judge Fletcher highlighted the responsibility of federal district and appellate judges in ensuring justice for defendants sentenced to death: "While some may view the courts as obstructions when appeals drag on for years, the federal courts are surely not doing their duty if they fail to protect the constitutional rights of capital defendants and if they tolerate execution of innocent people."(fn14)
Judge Fletcher and her fellow judges on the U.S. Court of Appeals for the Ninth Circuit shouldered that responsibility under intense public scrutiny in 1992. That year, the pending execution of Robert Alton Harris in California placed Judge Fletcher and her colleagues on the Ninth Circuit squarely in the middle of the death penalty controversy.(fn15) As described in newspaper accounts, "[f]or more than six hours, behind-the-scenes maneuvering by the group of defiant liberal judges delayed Harris's execution as they sought to give every conceivable issue in his case a fair hearing."(fn16) The decision of whether Harris would face execution that night pitted "a faction of liberal judges scattered across the Western states"(fn17) against the Supreme Court on two different issues. First, the Ninth Circuit's order in the Harris case addressed whether Harris received a sufficient hearing on new evidence that his brother had shot one of the victims Harris was convicted of murdering.(fn18) Second, three inmates facing execution, including Harris, had filed a lawsuit in federal court alleging that lethal gas, California's method of execution, constituted cruel and unusual punishment.(fn19) A panel of Ninth Circuit judges elected to stay Harris's execution for ten days, "a move spearheaded by liberal Circuit Judge Betty Binns Fletcher of Seattle."(fn20) Unlike in Davis's case, the Supreme Court did not grant Harris relief. Rather, the Supreme Court made the unusual move of issuing an order in the wee hours of the morning that "[n]o further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this Court."(fn21) Within thirty-six minutes, Mr. Harris was dead.(fn22) He was executed before any court could hear his claims.
The move "spearheaded"(fn23) by Judge Fletcher reflects her philosophy on the role of federal judges in death penalty cases. As Judge Fletcher noted in her Madison Lecture, condemned inmates trying to enforce their rights and judges trying to protect those rights face incredible hurdles.(fn24) Judges must vigorously guard the rights of the defendants accused and convicted of the most brutal crimes while navigating an increasingly restrictive procedural framework.(fn25) The procedural mechanisms surrounding death penalty appeals and habeas petitions have created such obstacles to justice that the Supreme Court in Davis reverted to ordering a hearing on an original writ even though the Court had not granted such a writ in nearly fifty years. The Davis decision demonstrates that the answer to Judge Fletcher's question, "can justice be done?" might in fact be "no." Absent the unlikely event of Supreme Court intervention, no court would have held an evidentiary hearing on Davis's actual innocence claim. In general, judges must take extraordinary measures to justify review on the merits, and painstakingly examine the claims of the defendants that society has deemed the "worst of the worst" to guarantee their convictions and death sentences are fair. The Davis case, however, has the potential to turn the focus back to the merits of such claims, particularly in the area of actual innocence.
This Article proceeds in three Parts. Part I briefly examines the increasingly restrictive scope of habeas review, focusing on the procedural hurdles courts and inmates must overcome to reach adjudication on the merits. Part II analyzes the case of Thompson v. Calderon,(fn26) in which Judge Fletcher and her fellow Ninth Circuit judges made remarkable efforts to ensure that procedural barriers did not result in the execution of a possibly innocent man. Finally, Part III reviews the Supreme Court's action in Davis and its possible implications, and concludes that the law that has developed around habeas corpus review has made justice difficult to achieve, but that the Supreme Court's decision could encourage lower federal courts to reach the merits of actual innocence claims.
I. PROCEDURAL...
