The NewStandard ceased publishing on April 27, 2007.

Legal Experts Debate Proposed Limits on Conviction Appeals

by Michelle Chen

If some lawmakers get their way, the process by which those found guilty of crimes appeal their convictions will be radically overhauled in favor of prosecutors looking to hurriedly finalize cases.

Dec. 2, 2005 – Ronald Keith Williamson of Oklahoma spent eleven years on death row for a crime he did not commit before getting his break. A new trial ordered by a federal judge proved him innocent using DNA evidence.

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After Ellen Reasonover of Missouri was wrongfully convicted of robbery and murder, the state court denied her appeals. But later, the discovery of new and previously suppressed evidence prompted a federal judge to overturn her conviction.

Such stories are rare, but could become rarer under proposed legislation that would heighten hurdles for convicts seeking legal relief based on the Constitution. The Streamlined Procedures Act – proposed in the House of Representatives by Daniel Lungren (R-California) and in the Senate by Jon Kyl (R-Arizona) – would weave a tighter sieve for claims of wrongful conviction, to achieve what proponents call "finality" in sentencing. Specifically, the bill would make it harder for defendants to pursue claims in federal court over possible violations of their constitutional rights during the judicial process. Such claims are collectively known as habeas corpus petitions.

House and Senate judiciary committees held hearings on the legislation in November, and some provisions were recently tacked onto the House Patriot Act reauthorization bill.

Civil liberties groups and some legal scholars have argued that the legislation would truncate the judicial review process at the expense of defendants’ rights.

Opponents of the bill argue that in a life-or-death case, the standards for legal representation should be as high as possible.

Though only a small portion of habeas corpus claims relate to capital punishment, one of the most hotly debated provisions would essentially ease the process by which states can bar federal courts from hearing death-penalty-related petitions. A 1996 law enabled states to restrict federal review of state death-penalty cases by proving to federal courts that they would ensure quality legal representation for low-income defendants. The new provision would enable the US attorney general, not to the courts, to certify whether a state was providing competent legal defense.

The amendment responds to complaints from some prosecutors that federal courts have set the bar too high. Josh Marquis, an Oregon district attorney and vice president of the National District Attorneys Association, said that the fact that only one state – Arizona – has qualified to apply the restrictions reflects, in his opinion, federal judges’ views that "the death penalty is evil and bad, and anything to slow it down or prevent it is a good thing and a moral necessity."

Yet opponents of the bill, including the American Bar Association, an organization that does not generally oppose capital punishment, argue that in a life-or-death case, the standards for legal representation should be as high as possible.

University of Chicago law professor Bernard Harcourt sees a conflict of interest in leaving the approval of the defense up to the attorney general, the nation’s chief prosecutor. He argued that since "we don’t have [local defense lawyers] electing the local DA… we shouldn’t be having prosecutors judging the adequacy of defense counsel."

Many petitions that have freed prisoners began by addressing constitutional violations in court procedure, not innocence itself.

Bruce Nicholson, legislative counsel with the American Bar Association, said that contrary to the view that the courts are being unreasonably harsh on states, states continue to refuse to put money into providing effective legal representatives for capital defendants.

For both capital and non-capital cases, the proposed legislation would make it harder for prisoners to press petitions through the state courts and into the federal system. For example, a claim would be automatically dismissed unless a petitioner could cite "clear and convincing" evidence of innocence, or new court rules that directly affected the sentence. The prisoner would also have to show that denying the claim would run counter to federal law. Another section would essentially bar federal review of so-called "procedural" errors in state proceedings, which would stymie a wide range of typical claims.

Critics question the logic of making the gate to judicial review hinge primarily on proof of innocence, since the very purpose of federal review is often to uncover such evidence.

"To say, ‘Sure, if you have evidence of innocence, you can come into federal court,’ is ridiculous without giving you the ammunition for developing the evidence of innocence," said Christina Swarns, director of the Criminal Justice Project at the NAACP Legal Defense and Education Fund, a civil rights organization.

Historically, many petitions that have freed prisoners began by addressing constitutional violations in court procedure, not innocence itself. Delma Banks, a Texas man released from death row in 2004, was initially denied relief in state court but obtained a federal evidentiary hearing based on due-process issues. Previously withheld evidence that the trial had been rigged emerged under federal review, and the Supreme Court invalidated his death sentence.

Legal advocacy groups fear that limiting avenues to federal review could hamper access to DNA testing, a powerful tool that might come into play only after a court grants an evidentiary hearing.

More broadly, say critics, the bill threatens the influence of the federal courts in enforcing accountability throughout the system. "Because of the federal habeas corpus review," Harcourt said, "you have state courts paying more attention to these cases, because they don’t want the federal courts to be… reversing for constitutional error."

Nonetheless, to prosecutors like Marquis, warnings about wrongful convictions are based more on ideology than on reality. In a legal analysis presented to Congress, he argued that although roughly 120 people have been freed from death row in the last quarter century, only 20 or 30 have been proven "actually innocent." Many, he argued, were simply "legally innocent" – their sentences had been overturned, but they were not subsequently found "not guilty" in retrials.

In an interview with The NewStandard, Marquis said that while habeas corpus is a crucial doctrine, "many people forget that when somebody is in prison for a very long time… they have nothing to lose from raising every hair-brained claim in the world."

Yet some perceive an outlandish claim on the other side of the debate: overblown fears that habeas corpus petitions overburden the courts and cause unnecessary delay.

According to an analysis by the Judicial Conference of the United States, an association of federal judges, federal courts are processing these petitions fairly efficiently. In 2004, claims pending for three or more years in district courts constituted only about 3 percent of federal civil cases. Although district and appeals courts have seen a growth in the backlog and processing timelines of death-penalty claims, the group said current data did not indicate a pressing need to curb habeas corpus.

Catherine Beane, interim director of Defender Legal Services at the National Legal Aid and Defender Association, argued that "streamlining" the appeals process would simply gut a legal remedy that is "often the only way a wrongfully convicted person can prove his innocence when he receives ineffective assistance of counsel, or the police or prosecutors don't play by the rules. The prosecution doesn't always get it right, and a long list of exonerations grows with each passing day."

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The NewStandard ceased publishing on April 27, 2007.

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Michelle Chen is a staff journalist.

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