habeas corpus & the death penalty — "how many years did we think the earth was flat?"

Kenny Richey, an ex-Marine, has spent 20 years on death row. Amnesty International has described the case as "one of the most compelling cases of apparent innocence that human rights campaigners have ever seen". Although his conviction was set aside by a Federal Appeals Court, that decision may itself be reversed on 'technical grounds' - created by Congress to 'speed up' the death penalty process & reduce 'frivolous' appeals - that have set up labyrinthine procedural hurdles for defendents in death penalty cases pursuing habeas corpus appeals. While there is no statute of limitations for the state to prosecute a murder, Congress, through the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, created a situtation where the prosecution will argue, despite evidence of innocence & lack of a fair trial which a panel of Federal judges found compelling, that it is simply 'too late' to examine the evidence & that the defendent's conviction & death sentence must be upheld. This backdoor congressional assault isn't over; just this past December Senator John Kyl tried slipping in some habeas 'reform' measures in a Defense Dept authorization bill (see Habeas Corpus — "the only writ named in the Constitution" — under attack in Congress). We should expect further on-going attempts. Think twice if you expect the Democrats to resist; Bill Clinton signed AEDPA into law.

The Supreme Court reversed Richey's grant of habeas relief by the Sixth Circuit in an extremely brief opinion with no author attributed, and remanded for a narrow ruling by the Sixth (arguments will be heard tomorrow) as to whether the state waived its argument that the new evidence was presented 'too late' (i.e. whether the state waived the claim that Richey essentially waived [technically "defaulted"] his claims).

[1/24 update]: The Cincinnati-based 6th U.S. Circuit Court of Appeals threw out his conviction and death sentence in January 2005.

The U.S. Supreme Court ruled in November 2005 that the 6th Circuit erred by disregarding the Ohio Supreme Court's interpretation of state law regarding intent to kill. The state court had ruled that as a death penalty specification there is no difference between an intended victim and an unintended victim, such as the little girl who was killed.

The federal high court also said the record was incomplete on whether Richey received effective counsel and whether some evidence was properly admitted, and told the appeals court to hold another hearing. Akron Beacon Journal

The new claims in court apparently are not of 'actual innocence,' but ineffective assistance of counsel because, contrary to commonsense and popular belief, 'innocence' alone is insufficient to get a conviction thrown out by a federal court in a habeas corpus case. That, coupled with AEDPA's arbitrary time limits and procedural restrictions create nearly insurmountable hurdles for the wrongly convicted to present any new evidence.

Richey was 18 when he left his mother's home in Edinburgh to live with his American father in Ohio, where he joined the US Marines. He was planning to return to Scotland in July 1986 when he was arrested for the murder of two-year-old Cynthia Collins, who died in a fire in her mother's apartment in Columbus Grove.

The prosecution claims Richey started the fire because his estranged former girlfriend and her new lover—supposedly the intended targets of the attack—lived in the apartment beneath. It says he poured turpentine on to a carpet, and left a trail of it from the flat to the wooden verandah outside, where he set it alight. No one saw him at the scene and he had no trace of turpentine on his clothing.

Protesting his innocence, Richey refused a plea bargain which would have led to an 11-year sentence for arson and manslaughter. Tried by a court that sat without a jury, he was found guilty and sentenced to death on 27 January 1987. . . .

Fighting a long series of appeals in state and federal courts, his new lawyers, led by Clive Stafford Smith, legal director of the British charity Reprieve, have compiled a dossier of evidence that supports his claim of innocence. It includes the fact that after the fire, the local fire brigade chief, who believed it began accidentally, had the carpet thrown on a rubbish dump. Days later it was recovered, but kept outside the sheriff's office next to some petrol pumps. Scientific tests, say Richey's defence, show that the carpet bore traces of petrol not turpentine.

In 2004, the Sixth Circuit US Court of Appeals, one tier beneath the Supreme Court, ruled that this evidence, coupled with his trial attorney's failure to adduce it, was enough to quash Richey's conviction, and gave the prosecution 90 days either to appeal or to start proceedings for a re-trial.

'I was packed and ready to go home,' Richey said. 'I'd already sent my CDs, tapes and clothes back to my brother in Scotland by post. The prosecution had indicated there would be no retrial. Then the axe fell. It was devastating in so many ways.'

Richey's fate now turns on highly technical interpretations of procedural law. At this week's hearing, the prosecution will argue that the defence has no right to use the new evidence because it should have argued it earlier. The defence will respond that the prosecution has no right to make this objection, because it in turn should have done so at one of Richey's previous appeals. But if Richey wins this argument, his conviction will be quashed again - though the prosecution would almost certainly go back to the Supreme Court yet again in a further bid to have him killed. Guardian

Despite the popularity of television's CSI shows, the science used in courtrooms has often been questionable, a 'fact' science itself is only slowly catching up to. New Science Challenges Arson Convictions:

It was a textbook case, and Lee was dealt a guilty verdict and a life sentence.

Except the textbooks were wrong. Within a few years of Lee's conviction, scientific studies smashed decades of earlier, widely accepted beliefs about how fires work and the telltale trail they leave behind.

Today, fire investigators are taught that the clues relied upon in the 1989 investigation of the cabin fire do not prove anything more than an accident.

And some of the leading U.S. experts on arson said that Lee, an immigrant who worked six days a week to bring his wife and daughters from South Korea to America, was the victim of a horrible tragedy, not a criminal. There could be hundreds more like him, people wrongfully convicted of arson, these experts said.

Pennsylvania courts have repeatedly rejected the argument that the prosecution's case was built on bad science.
. . .

The same discredited arson science, according to leading fire investigators across the country, may have led to hundreds of mistaken arson prosecutions. So far, 186 men and one woman have been freed because of the new technology.

Yet, critics said, some investigators are resisting the new science and continue to prosecute cases based on repudiated methods.
. . .

It wasn't until 1992, when a guide to fire investigations by the National Fire Protection Association clearly laid out, in a document relied upon by authorities nationwide, that the earlier theories were wrong.

"It's not that they're bad investigators or there's been any conspiracy to promulgate erroneous conclusions. It's just the way it was," said Custer, the former associate director of the national Building and Fire Research Laboratory and one of the principal editors of the 1992 guide.

"How many years did we think the Earth was flat?"

so sorry:

Texas Man Exonerated By DNA Evidence; Court and Prosecutor Apologize

A Dallas man who spent nearly half of his life in prison or on parole for a crime he did not commit was recently exonerated after DNA evidence cleared him of raping a 12-year-old boy in 1982. James Waller is the 12th person since 2001 whose conviction in Dallas County has been overturned as a result of genetic evidence. "Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span," said attorney Barry Scheck. Scheck and his colleagues at the New York-based Innocence Project represented Waller during his most recent efforts to prove his innocence.

The case against Waller was largely based on the testimony of the victim, who mistakenly identified Waller as his assailant. Though Waller did not fit the original description provided to police by the victim, and alibi witnesses said that Waller was home at the time of the crime, he was convicted in 46 minutes and sentenced to 30 years in jail. He won parole in 1993, but had to register as a sex offender. Waller continued to fight to prove his innocence in the years following his release. . . . "It has been a long struggle for me. They look at you like you're an animal," Waller said.

Judge John C. Creuzot of Criminal District Court oversaw Waller's latest hearing and tried to console the exonerated man by stating, "A lot of times we are tested in life, and you certainly had a terrible test. On behalf of any and all public officials at that time, I want to apologize." Craig Watkins, Dallas County's new district attorney, told Waller that he was "sorry" and added, "I can say I'm sorry all day. I know that doesn't mean much to you, but I can guarantee to you in the future when I'm the district attorney we will insist that we will not send anyone who's innocent to prison. The sad thing is the person who actually did this crime is still out there on the streets." Death Penalty Information Center

Kenny Richey's situation isn't unique (neither is the non-capital case of James Waller); it's almost certainly not the most egregious example of AEDPA's procedural hurdles facing habeas petitioners, even those death row inmates who are innocent. Recall Chief Justice John Roberts' tap-dancing sidestep during his confirmation hearings when asked directly if the Constitution prohibits the execution of the innocent. Or Attorney General Alberto Gonzales' pseudo-strict-constructionist assertion last week before the Senate Judiciary committee: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away. ... the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas. Doesn't say that." What are the chances that any of those Democrats who so loudly complain today about the stripping of habeas rights in the Military Commisions Act will stand up & call for the repeal of AEDPA?

fat, I know . . .