Innocence, Federalism, and the Capital Jury: Two Legislative Proposals for Evaluating Post-Trial Evidence of Innocence in Death Penalty Cases


No one favors the execution of an innocent person. That event represents the ultimate failure of the justice system, both in the view of those who consider the risk of such a failure to be so intolerable as to constitute a reason for abolishing capital punishment altogether and in the view of those who consider it to be an acceptable cost of an otherwise desirable institution.

Yet the danger of wrongful execution is chillingly real. Whether one gains insight from scholarly studies, current judicial proceedings, or by experiencing the intensity of community pressures to convict someone – anyone – of these atrocious crimes, it is difficult to deny that there is a special danger of factual error in capital cases. That danger is exacerbated both by the grisly consequence of such errors and by the general tendency of evidence of innocence to emerge only at a relatively late stage in capital proceedings.

Yet the states’ corrective mechanisms are simply inadequate. Motions to reopen criminal convictions on the grounds of newly-discovered evidence must overcome understandably heavy policies in favor of finality and must meet burdens which require a finding, for example, that the profferred material “would probably have changed the verdict.” These standards, of course, are applied by a judge (normally the original trial judge), not by a jury. This practice deprives the defendant of a jury’s sensitivity to possible weaknesses in the prosecutor’s case on the issue of guilt – a sensitivity that is recognized to act as a safeguard against the return not only of a wrongful conviction but also of a death sentence against the possibly innocent. Moreover, once a conviction becomes final, many states will not permit such claims in the context of a state collateral proceeding – notwithstanding the fact that this is commonly the lengthiest element of the entire capital adjudicatory process, and hence a stage at which new evidence may well emerge.

Compounding the problem, claims of factual innocence are not cognizable on federal habeas corpus. Seeking to discover a rationale for this prohibition among the cases, one is likely to find oneself soon lost among a wilderness of antiquarian legalisms – for instance, that federal habeas corpus only examines the “jurisdiction” of the convicting court to detain the prisoner.

Clearly, such explanations fail to account for the modem role of federal habeas corpus in the justice system.

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