Equitable Exception To Aedpa For Actual Innocence

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Thursday, May 30, 2013

We have seen over the last two decades, in part thanks to the incredible efforts of the Innocence Project, that many individuals on death row awaiting execution are actually innocent of the crime for which they were convicted. A growing number of states, in light of the risk of executing an innocent individual, have declared a moratorium on the death penalty. In spite of these steps to guard against an injustice no one could undo, many others continue to push for streamlining the review of capital cases by limiting successive appeals in state and federal court. One of the most significant barriers to full review is the Antiterrorism and Effective Death Penalty Act (AEDPA), which places considerable restraints on access to federal review of state capital convictions.

One of the most restrictive of the AEDPA provisions is its time limit of one year within which to bring a federal habeas petition after discovering the basis for the claim. So, for example, if a death row inmate learns of newly discovered evidence that would create a claim not previously known to him, he would have no more than one year to bring that claim to the attention of the court. The purpose of the one-year restriction is to limit the number of petitions filed in federal court, and to put the burden on the inmate to bring his case as quickly as possible to the attention of the proper forum. But a death row inmate with no resources and little hope may not have the wherewithal to bring that claim to light in the appropriate manner within one year. What if that claim does come to light, but after one year? Should the court have no authority to free a potentially innocent man? Could a statutory default force the state to execute an actually innocent individual?

This is the question the Supreme Court faced in McQuiggin v. Perkins, decided earlier this week. The facts, though detailed, boil down to this – McQuiggin, on death row in Michigan, learned of potential evidence of innocence between 1997 and 2002, but did not bring this claim to federal court for over a decade after discovery, far beyond the one-year limitation of AEDPA. He had no good excuse for the delay. By a vote of 5-4, the Court, in an opinion by Justice Ginsburg, held that he should have his day in federal court, finding a line of cases that allow equitable exceptions to the harsh statute of limitations of the AEDPA. Because of this decision, all individuals in prison who have exhausted their appellate and post-conviction remedies in both state and federal court may still have a petition for habeas relief heard in federal court based on proof of actual innocence at any time while in prison even if beyond the one-year limitation and without any excuse for delay. The day in court may be very brief, however, because the petitioner must prove no reasonable juror would have convicted based upon the newly discovered evidence, and that trial counsel reasonably could have discovered this evidence through due diligence.

In dissent, Justice Scalia became apoplectic over the idea of thousands of petitions now flooding district court judges with bogus claims just to delay execution, even though Congress could not have been clearer in its statement of its time limitation. No one disputes the clarity of congressional intent or statutory language; the division between the majority and the dissent in this case concerns whether expending (or wasting) the additional resources expended in federal court to hear these barred claims outweighs the risk of executing an innocent person. While one can appreciate the impact all these petitions will have on overburdened federal judges, and that most of these petitions will not have merit, that burden cannot justify killing an innocent person.

Many states, like Illinois, have recognized the easiest way to solve this conundrum is to eliminate the execution of the death penalty. If all of the persons currently on death row in all states faced life in prison without parole, the number of these persons who will pursue actual innocence petitions will drop precipitously, as the stakes are no longer life and death, leaving only those with real merit to find their way to court.

McQuiggin is a great victory for those who believe we should not dismiss hearing a legitimate claim of actual innocence because of an arbitrary statute of limitation, especially when the risk of error is executing the innocent.

If you have questions about a claim of actual innocence or a habeas petition in federal court, contact us – we can help.

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