united-states
Let's say, for example, a person previously testified in a criminal
case that they saw someone murder someone else. Based largely on this
testimony, a jury convicts the defendant.
Later on, the witness gets into some personal issues with their
romantic partner, and a messy divorce case follows. In that case, they
are found to be a habitual liar who will go to great lengths to
manipulate others.
In this situation, would the original defendant have grounds to get
their conviction overturned?
Probably not. Unless someone's constitutional rights are violated by prosecutors in the handling of the case, even evidence that casts gross doubt on the accuracy of a conviction, even in a death penalty case, is only rarely successful in overturning the validity of a conviction.
There have been many U.S. cases where someone else has confessed to committing the crime and the conviction was not overturned.
The procedural barriers to this kind of collateral attack on a conviction are great, in part, due to the Antiterrorism and Effective Death Penalty Act of 1996 which imposes daunting barriers to overturning a conviction. Indeed, whether unequivocal proof of actual factual innocence is a legally recognized basis for overturning a conviction (while often raised), remains an open question in U.S. law. Conservative judges tend to opine that it is not.
For example, Justice Scalia wrote in the case of Troy Davis, in the face of post-trial recantations by almost all of the witnesses against him and a confession of guilt for the murder by someone else who is in prison that:
This Court 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.
Professor Alan Dershowitz, at Harvard Law School, explains what this means:
Let us be clear precisely what [Scalia's dissent] means. If a
defendant were convicted, after a constitutionally unflawed trial, of
murdering his wife, and then came to the Supreme Court with his very
much alive wife at his side, and sought a new trial based on newly
discovered evidence (namely that his wife was alive), these two
justices would tell him, in effect: "Look, your wife may be alive as a
matter of fact, but as a matter of constitutional law, she's dead, and
as for you, Mr. Innocent Defendant, you're dead, too, since there is
no constitutional right not to be executed merely because you're
innocent."
Denial of relief in cases like the case of Troy Davis are the norm in the United States and not the exception.
In the case of Richard Glossip in Oklahoma, even the state’s Republican attorney general says he should not be executed and is probably innocent, but so far the courts (and pardon boards) have refused to set aside his execution. The U.S. Supreme Court recently granted certiorari in the case, but is probably more likely to affirm Mr. Glossip's execution than to vacate it.
The federal courts play a very small role in overturning state court convictions and sentences, granting relief about once per 20,000 inmates per year in non-capital cases, and about once per eight people sentenced to death (often vacating the death sentence but retaining a lengthy prison sentence).
Federal habeas corpus exonerations for actual innocence under current law (which some judges allow while the law on this point remains unresolved at the U.S. Supreme Court level) probably results relief for not more than about 3 people per year in non-capital cases, and 1-2 people in a capital case per year, nationwide, in the United States, where millions of people are incarcerated.
For example (my source link for this quote has gone dead):
In 2004, there were about 19,000 non-capital federal habeas corpus
petitions filed and there were about 210 capital federal habeas corpus
petitions filed in U.S. District Court. There are about 60 habeas
corpus cases filed in the U.S. Supreme Court's original jurisdiction
each year. The U.S. Courts of Appeal do not have original jurisdiction
over habeas corpus petitions. . . . As of 2004, the percentage of
federal habeas corpus petitions involving state death sentences was
still about 1% of the total. . . . About 63% of issues raised in
habeas corpus petitions by state court prisoners are dismissed on
procedural grounds and about 35% of those issues are dismissed on the
merits, while about 2% are either resolved favorable to the prisoner
on the merits or remanded to a state court for further proceedings at
the U.S. District Court level. . . . [A]study found that when habeas
corpus petitions in death penalty cases were traced from conviction to
completition of the case that there was "a 40 percent success rate in
all capital cases from 1978 to 1995." . . . [Another study] puts the
success rate in habeas corpus cases involving death row inmates even
higher, finding that between "1976 and 1991, approximately 47% of the
habeas petitions filed by death row inmates were granted." . . . about
20% of successful habeas corpus petitions involve death penalty cases.
. . . As of 1991, the average number of federal habeas corpus
petitions filed in the United States was 14 per 1,000 people in state
prison, but this ranged greatly from state to state from a low a 4 per
1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.
Reasonable estimates of wrongful conviction rates in the U.S. are on the order of 1-2% of convictions, about half following jury trials and about half from guilty pleas to crimes that the defendant didn't commit due to low mental capacity, despair, or a favorable deal compared to the risk of a very severely punished wrongful conviction of trial.
Similarly, in a 2007 case, Justice Thomas (joined by four of his conservative colleagues) faults a litigant for relying upon a deadline set forth in a court order from a District Court judge incorrectly and denies relief. The four liberals on the U.S. Supreme Court dissent, noting that:
It is intolerable for the judicial system to treat people this way,
and there is not even a technical justification for condoning this
bait and switch.
Even mistakes of law by a court that are not fault of the convicted defendant are held against them:
Ezell Gilbert is now before us asking to be relieved of the
consequences of a mistake we made in his direct appeal in 1998. He
told us then that the District Court was wrong in sentencing him
substantially more harshly based on that court’s decision that
carrying a concealed weapon is a crime of violence. We rejected his
argument, and affirmed his sentence of more than 24 years. United
States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998). We did this on a
record containing the District Judge’s clear statement that the
sentence was longer than he would have imposed, but for the
then-mandatory Sentencing Guidelines. Id. at 1372–73. It turns out, of
course, that Mr. Gilbert was right and we were wrong. Carrying a
concealed weapon is not a crime of violence. We said so, belatedly for
Mr. Gilbert, in United States v Archer, 531 F.3d 1347 (11th Cir.
2008).
The effects of our mistake are quite dire for Mr. Gilbert, insofar as
his properly calculated (and advisory) guideline range would today be
130–162 months, or approximately 11 to 13 years. As I write this, I
understand that he has already served more than fourteen years in
prison. And yet the majority opinion tells Mr. Gilbert that the laws
and Constitution of this country offer him no relief.
From the dissenting opinion of Judge Martin from an en banc ruling of the 11th Circuit in an appeal of a U.S. District Court denial of a habeas corpus petition. The majority opinion by Judge Carnes (at the same link) opens with the following:
Ezell Gilbert, a federal prisoner, wants to have an error of law in
the calculation of his sentence corrected based upon a Supreme Court
decision interpreting the sentencing guidelines, even though that
decision was issued eleven years after he was sentenced. Gilbert
insists that prisoners have a right to have errors in the calculation
of their sentences corrected no matter how long it has been since the
sentences were imposed. . . . The principles of policy that limit the
right to be resentenced in accord with the latest guidelines decisions
are those regarding finality of judgment and the important interests
that finality promotes. For reasons we will discuss, the statutory
provisions and the decisions furthering finality of judgment are
strong enough to hold their own against Gilbert’s claimed right to
have a long-ago error in calculating his sentence corrected.
The Fifth Circuit, in a recent case, went even further in December of 2022, somewhat contradictorily arguing that actual innocent is the only grounds for relief:
Federal law explicitly authorizes federal courts to review convictions
and sentences handed down by state courts, and to invalidate them if a
prisoner is held “in custody in violation of the Constitution or laws
or treaties of the United States.”
Last Thursday, however, a far-right panel of the United States Court
of Appeals for the Fifth Circuit effectively eliminated state
prisoners’ right to seek what is known as a “writ of habeas corpus”
when they are imprisoned in violation of the Constitution or federal
law, except in cases of “factual innocence.”
Among other things, this means that someone who is “factually guilty”
of an unconstitutional crime — such as violating a Jim Crow law or a
law prohibiting individuals from criticizing the president — would be
stripped of their habeas rights in federal court. It could also
potentially enable abusive conduct by police and prosecutors, such as
coerced confessions or warrantless searches, by removing nearly all
federal supervision of states that overlook such violations.
Judge Andrew Oldham’s decision in Crawford v. Cain is completely
lawless. It finds this novel requirement that an unconstitutional or
illegal conviction or sentence must stand, unless the prisoner shows
they are innocent, within a federal statute that states that federal
courts hearing habeas cases “shall summarily hear and determine the
facts, and dispose of the matter as law and justice require.” Oldham,
along with the two other Republican-appointed judges who joined his
opinion, claims that only factual innocence “satisfies the
law-and-justice requirement.”
From Vox. The three judge panel ruling is here.
When justice is served in a collateral attack on a criminal conviction in the United States, it is something approaching a miracle if it does anything other than convert a death penalty sentence into a life in prison without possibility of parole sentence.
The quality of legal representation of people, even people facing the death penalty, in states like Texas, also routinely shocks the conscience with no relief for the incarcerated person.
