Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
In one of the most appalling court rulings imaginable, the 9th Circuit Court of Appeals has decided that the fact that a convicted criminal can now be proven to be innocent does not matter if he filed an appeal in 16 months rather than the 12 months allowed by the statute of limitations. Actual innocence simply does not matter, only technicalities do. You can see the full ruling here.
We have previously refrained from deciding whether there is an actual innocence exception that serves as a gateway through the AEDPA statute of limitations to the merits of a petitioner's claims. Instead, we have assumed such an exception and have evaluated the actual innocence claims themselves, waiting until a state prisoner shows actual innocence to answer the legal question.
Imagine that, thinking that actual innocence should matter. But they'll have no more of that mollycoddling:
We decline to prolong the inevitable recognition that there is no "actual innocence" exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.
Here's the part that makes my skin crawl. In explaining why the court is doing what it does, Judge Diarmid O'Scannlain notes that different district courts have disagreed -- and this is troubling:
This split creates troubling inconsistency. The rights of state prisoners in Oregon depend on which judge hears their cases. The rights of state prisoners in California depend on the happenstance of the location of their state prison. Such chaos calls out for our resolution.
Really? Out of all the facts in this case, that is the part you find troubling? And the second reason is that the judge is crying crocodile tears over courts having to actually, you know, hold hearings and stuff:
Our second reason for resolving this question at this time is that our district courts are expending vast amounts of resources under the current approach of evaluating actual innocence, on the assumption that an actual innocence exception exists. Each such evaluation requires the submission of exhibits, oral argument, evidentiary hearings, and numerous rulings, as the case before us demonstrates. Here, the district court held several hearings and accepted numerous exhibits over the course of proceedings lasting several months... Since the text of the statute indicates there is not, the federal courts in our circuit are needlessly burdened.
Oh yeah, it's the judges who are needlessly burdened -- not the innocent people thrown in prison for half their lives or more, their lives ruined and families destroyed. Won't someone think of the judges? Why, what do these people think, they have a right to actual justice or something? When will the madness end?
By the way, does it even need to be pointed out that this guy was represented by a public defender?
Politics
Comments
Given this the 9th Circuit Court of Appeals and Bill O'Reilly hates the 9th, I'll bet money he either:
a) ignores this ruling
b) castigates the 9th in a manner that causes outrage against liberals in spite of the fact that the judge who wrote this opinion was a Republican, ran for Congress as a Republican, served a Republican administration, and was appointed by President Reagan to his current position.
I'm not trying to absolve non-Republicans from this ruling. I have no idea who else voted for this travesty, just wryly noting the mental gymnastics necessary for conservatives if they choose to use this ruling to flog their opponents.
Posted by: Michael Heath | July 8, 2010 12:18 PM
The judges sympathize, they really do. They just want their lives back.
Posted by: Tyro | July 8, 2010 12:33 PM
Diarmuid F. O’Scannlain, the judge who wrote the opinion on this ruling, also ruled on this case:
http://www.wired.com/threatlevel/2010/03/pregnant_woman_tasered/
In which the court decided it's A-OK to taser a woman who is 7 months pregnant. Wanna know why she got tasered? Think she was hyped up on meth and assaulting a police officer or something? Nope- she refused to sign a speeding ticket. Clearly a danger to society.
Posted by: Katrina | July 8, 2010 12:37 PM
On to the Supreme court.
This is just buck passing at its most cowardly. This hack has to know it will be appealed. It's inevitable. The supreme court, hopefully, will have the sense to rule on the constitutionallity of "the text of the statute", rather than just blindly follow it as written. (cuz that's, like, sort of the point of the judicial branch.)
Posted by: mousedude | July 8, 2010 12:52 PM
Oh, come on, Ed! If we don't stick to procedure over justice, innocent people might be set free. I don't think any of us want that. You might, but you'll change your mind once you're confronted with the spectre of a not-gun wielding not-murderer in a dark alley one night.
Posted by: Modusoperandi | July 8, 2010 12:52 PM
I thought there was a SCOTUS case last year that concluded the same thing. Without defending the ruling (I think its crap), it could be that they were trying to follow SCOTUS precedent.
Or I could be just plain wrong about all that. Its a vague memory.
Posted by: eric | July 8, 2010 12:54 PM
If this is one of the most appalling judical rulings ever, then I presume that are these 4 also are on that list:
(from the opinion) "Four circuits have held that there is no actual innocence exception..." (while noting that one, the 6th circuit, did find such an exception).
It seems this was decided as a straight forward application of the rules statutory construction: 4 exceptions to the stature of limitations are stated in the statute, and "actual innocence" isn't one of them. Congress can fix this oversight if they wanted to.
There is always going to be innocent people unjustly locked up with any system and set of rules, and there is this tension between the goal of having a functioning judicial system verses how many instances of unjustly locked-up people we wish to tolerate. Unfortunately, "due process" does not mean "accuracy".
Posted by: Divalent | July 8, 2010 12:58 PM
I'm actually reluctantly in support of this position. If the SCOTUS finds some sufficiently defensible constitutional principle to create a formal precedent, awesome. This case appears to be a failing of justice caused by an adherence to the law as written. That means that the law needs to be fixed. Judges are very limited in their ability to choose justice over the law, and I'm glad about that-- given that power, history says that the overall consequences are punishment of the innocent-but-unpopular and protection of the corrupt.
Posted by: Raka | July 8, 2010 1:14 PM
While I sympathize with your argument, there also needs to be finality to judgments. I believe, and I may be wrong, that the AEDPA applies only after a state trial court has decided the case and it has been affirmed on appeal.
Under what circumstances should a judgment that has been appealed and affirmed in a state court be revisited? Should the standard be whether there is one scintilla of new evidence that suggests actual innocence? Or should it be whether there is substantial new evidence?
While I would abolish it, there does need to be some finality (regardless of whether the penalty is death or life imprisonment).
I'd probably be happy with a standard that provides a state appeal after conviction plus a federal haebeas review. Thereafter, additional reviews are available only upon the presentation of substantial new evidence that indicates actual innocence.
Posted by: David C. Brayton | July 8, 2010 1:17 PM
Divalent, #7: There is always going to be innocent people unjustly locked up with any system and set of rules, and there is this tension between the goal of having a functioning judicial system verses how many instances of unjustly locked-up people we wish to tolerate. Unfortunately, "due process" does not mean "accuracy".
I can't tell whether or not you are supporting the ruling.
I will point out, I think most of us accept that no system is perfect, mistakes will be made, and there will inevitably be innocent people convicted of crimes and sentenced to prison (one would hope, though, that this would be rare).
That is very different, however, from avoiding responsibility for correcting a mistake in those particular cases where it is obvious that one has occurred. According to the post, this is a case where it is clear that a mistake has been made. Perhaps the original mistake is understandable under the circumstances -- I don't know -- but now that it is acknowledged that a mistake I should think that there is now a duty to correct.
I mean, shouldn't a "justice system" be promoting justice?
Posted by: Chiroptera | July 8, 2010 1:18 PM
The problem is that the statute as written doesn't include an actual innocence exception in this subsection - but does in another subsection. That makes quite clear that the omission was deliberate.
I tend to the Thomas More approach. There comes a point where a court has to apply the statute as written, or the rule of law has no meaning. If you were prepared to argue outright that judges should at appropriate times and in appropriate cases be invested with the power to make law if they felt it appropriate (but who defines "appropriate") rather than merely to interpret it in accordance with the constitution, then that is a more defensible position; calling these judges cowardly because they don't throw out legislation clearly written as deliberately (it is virtually impossible to accept that this was a mistake) excluding the exception you feel should be there is unfair.
I am assuming that there is no authority that it is unconstitutional to place time-bars on habeas corpus applications?
Posted by: Robin Levett | July 8, 2010 1:37 PM
Chiroptera, we don't have a justice system, we have a legal system. And this ruling proves the difference...
Posted by: Dave H | July 8, 2010 1:38 PM
Dave H @12: "we don't have a justice system, we have a legal system. And this ruling proves the difference..."
Yeah, but "justice systems" tend to be the ones where some people are killed by stoning, and others are favored by God (and/or old buddies of the judge) and thus immune from prosecution. That happens in our system too, but at least we have the recourse of appeal to the law as written. Without that clear delineation, the best you can hope for is an appeal to a judge with different biases.
Posted by: Raka | July 8, 2010 1:44 PM
Under what circumstances should a judgment that has been appealed and affirmed in a state court be revisited? Should the standard be whether there is one scintilla of new evidence that suggests actual innocence? Or should it be whether there is substantial new evidence?
That could be determined. However, this ruling says it doesn't matter. There is no innocence exception. There could be an entire universe of new evidence, but if the appeal wasn't filed in time, too bad.
Posted by: Taz | July 8, 2010 2:31 PM
As a lawyer, I see both sides of this. On several occasions I've made and won with Judge O'Scannlain's argument here. I personally find the fact that we can do that to a criminal defendant appalling, but it still presents a serious question of how we organize rules in a legal system.
To explain. I work in civil litigation, mainly on the defense side. On more than one occasion I've had cases where the plaintiffs missed the statute of limitations.
Maybe they had a great case, maybe they were seriously hurt and fairly deserve compensation of some sort. But they waited too long to file the lawsuit so It Doesn't Matter what the actual merits of their case are. The same with appeals, the trial judge could have done something horribly wrong, but if you miss the appeal deadline, sorry you're out of luck.
The statute of limitations exists precisely to limit liability after a certain period of time. It might be unfair in particular circumstances, but we have to have rules and we have to abide by those rules.
Sticking to the civil context for a moment, how could we possibly administer a system that says "You have to bring your case within 3 years... unless you have a really really good case."
Now switching back to the criminal context. Like I said, as a policy matter I find it appalling not only that actual innocence is cut off as a legal defense, but that people could be barred from asserting it.
But if we do eliminate a statute of limitations or for that matter the AEDPA's bar on successive petitions, how do we regulate nuisance petitions? Should the law really allow factually guilty convicted individuals to file as many petitions as they want just to spite the system? And if you're going to cut off any petitions, how do you figure out which ones to cut off and which ones to not cut off? Do we want to give that kind of discretion to a judge?
Here, the statute passed by the US Congress says you have to bring a petition within 12 months. Under what grounds could the judge just ignore that? and if the judge does have some grounds, how far do those grounds go?
Posted by: Ben P | July 8, 2010 2:35 PM
Possible this is an objectionable ruling to intentionally pass the buck to the supreme for a strong enough move to force innocence work in all states?
Posted by: Buffoon | July 8, 2010 2:42 PM
For better or for worse (probably worse) here's how it works.
When you're charged with a serious crime, you have a right to a trial by a jury of your peers.
When you go to trial, the judge will make decisions about the law,instruct that jury on what the law is, and tell the jury that it is their job to decide the facts.
Once the jury decides those facts and comes back with a verdict, those facts are virtually fixed in stone. You are no longer "presumed innocent," you have been "proven guilty." A judge has only the most narrow of powers to overturn what the jury said. Your direct appeal can only overturn those facts if you can prove that the evidence admitted in the trial was such that no reasonable jury could have found the way they did. The only real way you have to appeal is to say that the judge screwed up the law somewhere.
In an indirect appeal, you simply can't ask the judge to overrule what the jury said. People who support this idea will say that you can always ask for a pardon.
In either case, you are correct. Congress could change this, I think they should, but like I noted before, exactly how to change it is a very difficult question.
Posted by: Ben P | July 8, 2010 2:46 PM
No, on to the Ninth sitting en banc. This was heard by a three-judge panel consisting of two District Court judges and one from the Ninth.
Posted by: D. C. Sessions | July 8, 2010 2:49 PM
Ben P @15: But if we do eliminate a statute of limitations or for that matter the AEDPA's bar on successive petitions, how do we regulate nuisance petitions?
To my mind, there should be no statute of limitations on an appeal based on the argument that one's lawyer was incompetent, because its perfectly reasonable to expect that a client may only find out his/her lawyer is incompetent after some deadline is missed. Analogous to finance - you don't find out that the Madoff's of the world are scamming you until after you lose your money. It would be pretty silly to make a rule (analogous to) saying you must bring suit against them before they lose your money.
Now, as to how you'd prevent nuisance petitions if you allow such no-limit petitions: isn't that pretty easy? Limit the number of petitions a person can file against his legal team. If you only get one petition per lawyer or law team or whatever, this is going to result in no more than one extra petition per case.
Posted by: eric | July 8, 2010 3:22 PM
Oh, PS to my last post, the reason I bring up legal inocompetence is because its relevant to this case. The guy's habeas petition was filed late by his lawyer. So my solution above would've fixed this case (hypothetically).
Posted by: eric | July 8, 2010 3:24 PM
I'm failing to see how fact (or at least a reasonable presumption thereof) fails to figure into law. Strict constructionism always seems to lead to a "too bad, so sad" attitude -- seriously, what is the purpose of the law? Is it to ensure justice, or is law an end in and of itself?
Posted by: BrianX | July 8, 2010 3:37 PM
Ben P @ 17 "proved guilty":
IANAL, unlike yourself, but this sounds like another problem of "framing". If you accept the fact that people receive "guilty" verdicts without concrete proof but as a determination from a jury of mostly, if not completely, non-lawyers, and sometimes judges, then the frame should be "judged guilty" or simply "found guilty" not "proved guilty". Further, say evidence comes out that proves beyond a doubt that the convicted is "actually innocent", then clearly the framed statement "proved guilty" is a lie at worst and generally applied is a fallacy of the magnitude required to lead to an enevitable miscarraige of justice based on a false platitude of pretending a verdict is practically infallible... phsycologically speaking. Either way, it's a further separation of law and justice using clever speak to appeal to the legal crowd.
It's a false placation, not much more.
Posted by: Chrisr | July 8, 2010 3:54 PM
As much as I am disappointed in this outcome, my rage is more geared towards Congress for not fixing this and towards the prosecutor for CHOOSING to pursue the case after a finding of "actual innoncence." Prosecutors have inherent discretion that judges don't.
That being said, I am disappointed that the 9th Circuit didn't come up with an equitable tolling rational (which gives judges discretion to not strictly able statutes of limitation for certain equitable reasons, such as ineffective assistance of counsel). SCOTUS did the same thing just a month or so ago for a case where a death row inmate was late in filing a habeas petition. I understand this is not as clear-cut a case, but I am confused why the 9th Circuit completely divorced this case from equitable tolling principles, since in the statement of facts it seems like the defendant was also arguing ineffective assistance of counsel.
Posted by: Wesley | July 8, 2010 4:23 PM
There is always going to be innocent people unjustly locked up with any system and set of rules, and there is this tension between the goal of having a functioning judicial system verses how many instances of unjustly locked-up people we wish to tolerate.
I don't know about you, but my idea of a "functional judicial system" is one that releases prisoners who are demonstrably innocent. Not saying this is necessarily the case here, but an "actual innocence" standard has to apply in general for a functioning judicial system.
Posted by: Ginger Yellow | July 8, 2010 4:29 PM
Re Chrisr @ #22
As Shakespeare put it, "the law is an ass."
Posted by: SLC | July 8, 2010 4:33 PM
The Ninth Circuit didn't declare actual innocence irrelevant, Congress and the President did. All the court can do is apply the statute as written; AEDPA is farcically anti-defendant, and in this case, it shows. This ruling is abhorrent, but if we are to have a government of laws, not men, then the way to fix things is to change the statute, not have judges create new exceptions not found in the statute -- just like in the recent Ledbetter case, where the Supreme Court reached an awful, but correct, statutory conclusion, which Congress promptly changed by amending the relevant statute.
Posted by: Chuck | July 8, 2010 4:44 PM
That's long been the policy in Texas, especially under federal legislation that limits the number of appeals from death row. Some years back we had a guy who had exhausted his appeals on a murder case for which he was sitting on death row. Shortly thereafter, the actual murderer confessed. Texas sued to stop the innocent-guy-on-death-row from appealing -- he had, after all, already had his three bites at the apple. He was convicted fair and square, and the fact that he was now found innocent should have no bearing on the operation of the wheels of justice, the state argued.
The Texas Court of Criminal Appeals agreed with the state. The 5th Circuit Court of Appeals agreed with the state. The Supreme Court agreed with the state.
The known-to-be-innocent guy got a new date with the executioner, and he was executed.
Innocence is not a good enough reason to stop an execution, according to our courts.
If only it were true that we had some activist liberal judges, instead of the activist, Star-Chamber-flavored, Spanish Inquisition precedent-loving louts we have now.
Posted by: Ed Darrell | July 8, 2010 4:54 PM
@23: As much as I am disappointed in this outcome, my rage is more geared towards...the prosecutor for CHOOSING to pursue the case after a finding of "actual innoncence." Prosecutors have inherent discretion that judges don't.
Well, that points to one potential fix. According to the ABA, it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Representing a person you know to be innocent as guilty should certainly count. So, if the prosecution currently knows the defendant is innocent (say, because they found the actual guilty party, or found the murder victim alive and well) yet continues to represent the person as guilty, disbar them.
Posted by: eric | July 8, 2010 5:04 PM
Lee filed the federal habeas petition without a lawyer according to this article an SFGate report:
Posted by: Dr X | July 8, 2010 5:28 PM
You're mostly correct.
I used the term to convey a specific meaning, but the term I would use depends on the perspective. I would agree it's a potentially unfair framing.
However, I used it that way because as far as the court system is concerned they are nearly identical.
At the trial the prosecution presents "proof" (evidence) tending to demonstrate the guilt of the defendant.
Based on that, the jury "finds" based on the evidence and the charge from the judge, that the defendant is guilty or not guilty. Very often this is reduced to shorthand with a general verdict.
But if for some reason the judge were to submit formal interrogatories to the jury, the question to the jury would read
"Do you find that the prosecution has proved beyond a reasonable doubt that the defendant is guilty of X."
I used it the way I did because even though I have some serious problems with how our system addresses actual innocence, that is essentially the way that courts on appeal or on a collateral attack view the finding of a jury. As far as they're concerned you've been "proven" guilty, and they're not allowed to challenge the "proof," only to decide if any rules were broken in the process of doing so.
Posted by: Ben P | July 8, 2010 5:32 PM
Re: Eric at 19-20
That's not a bad solution. However, in my mind ineffective assistance of counsel petitions are themselves are a poor solution to a finding of actual innocence. And they don't necessarily seem to be what people are upset about here.
Normally, the process goes that you're convicted, and you have a direct appeal. On your direct appeal, you can assert any number of grounds to have your verdict overturned. Including ineffective assistance of counsel. Assuming you were convicted in state court, your appeal will go through state court, to the state supreme court, then potentially to the US supreme court.
If your direct appeal is denied, most options are now foreclosed. One of the few legal options that remains is petitioning a federal court for Habeas Corpus relief.
Normally asking one court to overturn the verdict of another court is called a collateral attack and is strongly limited. In order to be able to collaterally attack your conviction, you have to prove to the Court that your conviction is a "Fundamental miscarriage of justice." In short you have to prove that you are actually innocent. Only once have you done that, does the court have a "gateway" to consider your constitutional claims.
Then, to claim ineffective assistance of counsel you have to prove BOTH that (a) your representation was so deficient that you were effectively not represented and were denied your 6th amendment right, and (b) that that had a material effect on the outcome of your trial.
Most ineffective assistance of counsel claims fail on the second prong. In habeas cases you've probably already satisfied it just by meeting the standard to get in the door.
Here the defendant had his first set of appeals. The verdict was affirmed by the Oregon courts and he apparently did not appeal to the US supreme court.
Then he filed a habeas petition. (late) After some delay, the District Court found he had proven actual innocence, and that actual innocence was a sufficient reason to meet an exception to the statute. They went on to find that his counsel was ineffective and ordered a new trial. (or release).
The 9th Circuit then ruled that there's no exception in the law for actual innocence. Which again, although bad, is textually true.
Posted by: Ben P | July 8, 2010 5:38 PM
eric, I think the SCOTUS case you refer to was Pottawattamie County v. McGhee, where the court held that there is no freestanding right not to be framed by a prosecutor. Not quite the same thing but equally crazy.
Posted by: cdrealist | July 8, 2010 6:56 PM
"better that ten guilty persons escape than that one innocent person suffer" - Blackstone's Formulation (http://en.wikipedia.org/wiki/Blackstone's_formulation)
That was then, this is now. My experience is that the system seems to have reversed the formulation. One of the reasons that I did not choose to go into criminal law.
Posted by: Ed L. | July 8, 2010 8:56 PM
I hate it too. But there is a point. The other side of this ruling relates to guilty parties who get off on technicalities in the law as written. Double-jeopardy makes a later reversal/retrial of such a case non-constitutional. This principle has here been applied to the converse and, as has been pointed out earlier, really highlights that the law as written needs work.
The other part of technicality-based-release and DJ however counts against this decision - that in all cases the presumptions and leanings of the court should be towards innocence. And yes, I realize this presumption has been eroding mightily since Reagan, and especially since the Bush knee-jerk reaction to 9/11.
Posted by: gray Gaffer | July 8, 2010 9:48 PM
eric @28: Well, that points to one potential fix. According to the ABA, it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Representing a person you know to be innocent as guilty should certainly count. So, if the prosecution currently knows the defendant is innocent (say, because they found the actual guilty party, or found the murder victim alive and well) yet continues to represent the person as guilty, disbar them.
That will absolutely never happen. Prosecutors have gotten away with intentionally withholding exculpatory evidence and refusing to test or even give to defendants potentially exculpatory DNA evidence. It's an utter travesty, but it shows that prosecutors can do pretty much whatever the hell they want.
Posted by: Wesley | July 9, 2010 9:43 AM
The defense of this statute: "oh, actual innocence isn't in the statute, therefore it would be wrong for the judges to find it in this case" may be failing to consider the fact that the statute, itself is only valid to the extent it does not violate the Constitution. If imprisonment notwithstanding actual innocence is a violation of substantive due process (which I'm not sure it is or is not) then the statute cannot stand without that "actual innocence" provision. And, assuming that the Congress intended to pass a Constitutional provision, then reading an "acual innocence" exception would not be "judicial activism" but merely enacting the intent of the Congress, as required by the Supreme Law of the Land.
Posted by: Woody Tanaka | July 9, 2010 10:30 AM
Personally, I would think that inflicting a demonstrably innocent man with conviction, imprisonment and possibly even the death penalty would be the definition of "cruel and unusual punishment"; it would just be an extention of the notion that you can't put thieves to death, for instance, because the punishment is so far out of whack with the original offense. Punishing an innocent man, then, is essentially dividing by zero.
Posted by: Freemage | July 9, 2010 10:46 AM
Famed defense attorney F. Lee Bailey once wrote that when a potential client tell him that he is innocent of the crime with which he is charged, Baileys' response is that that's fine but unfortunately, factual innocence is not a defense.
Posted by: SLC | July 9, 2010 12:16 PM
Judges. Where else can you work 4 hours a week, and send people who complain about it to jail?
Posted by: Baldemar Huerta | September 2, 2010 1:10 AM
Look what was done in case SC109034 in the santa monica courthouse by a judge Jaqueline Connor. The defendant was acquitted and the judge dismissed the case because ... because... she wasn't clear on whether the defendant was convicted. That case illustrates so much. Read the complaints and see the rulings and weep.
Posted by: anony | December 26, 2010 3:05 PM