The principle that guides appellate court judges in criminal cases must be two-fold: The assurance of justice for the innocent and the assurance of due process for the guilty. These are exclusive; due process must not limit justice for the innocent, nor should the need to impose justice on the guilty override due process.
This approach runs counter to current American jurisprudence, which routinely allows due process to interfere with the adjudication of claims of innocence. For example, a claim of actual innocence based on newly-discovered evidence is not grounds for federal habeus relief. (E.g. Herrera v. Collins, 506 U.S. 390.) What that means is that the courts of last resort for death penalty cases and other prisoners that need them most are not interested in newly-discovered evidence.
It is alleged that the state has an interest in finality of judgment, meaning that it is an important consideration that a trial eventually reach the point of being over, its conviction and punishment final. (Herrera, O'Connor concurring, at 426) The grounds to support this are essentially the same grounds that support statutes of limitation: as time passes, evidence is lost, investigators and witnesses forget or become unavailable. In the case of statutes of limitation, this protection is for the benefit of the defendant, who is presumed to become less able to defend himself against old charges. In the case of post-conviction relief, however, it is the state that asserts an interest in finality, claiming that its difficulty in raising prosecution anew is an interest of greater weight than the defendant's right to be found innocent of charges of which he is actually innocent. Obviously, this is an unjust abomination. The interest of the state should not be equated with the interest of the prosecution, particularly in a democracy where the power of the state is only a grant of power and not inherent.
The requirements of justice, far from imposing finality to further the state's interest, place the burden on the state to prosecute even once a conviction has been achieved. If the defendant can show a defect in the conviction, by improper process or by the discovery of new evidence, it is the state that should bear the burden of answering the defect. For example, DNA evidence is a powerful tool for analyzing crimes that has only become available in the last decade. It mocks justice to deny this tool to defendants who had no opportunity to use it because the crimes of which they were accused occurred before DNA evidence became available. Yet, that is the result that the state's interest in finality would compel.
Obviously, denying finality raises the spectre of convictions that never become final, of activist prisoners who bog the system down with endless appeals, raising minor re-interpretation of testimony to the level of "newly-discovered evidence" meriting revived adjudication. It is the duty of an appellate judge to act as a gatekeeper, to review such cases for colorability, to see that the claim is both genuine and significant. Herrera, for example, finds that additional evidence tending to impeach prosecution witnesses who were partially impeached at trial does not reach this threshold, which is not unreasonable. (However, the point of Herrera is that, even if the evidence were convincing, the federal court is not an available forum. The Herrera court points to executive clemency as the traditional remedy for actual innocence, which might even be reasonable were Herrera not convicted in Texas, which has no executive clemency in practice and little even in theory. (Herrera, at 416))
The appellate judge, in short, has a duty to allow the accused a chance to prove their innocence.
The flip side of the coin is that the appellate judge has a duty to require the state to follow the rules. In all but a few criminal cases, the resources of the state embodied in the prosecution and police far outweigh the resources of the accused. (Compare to the O.J. Simpson case, for an example where the accused could muster resources comparable to the state.) The history of American criminal jurisprudence has many examples where the state has used its resources to overwhelm the defense, regardless of the merits of the case, to the extent that the verb "to railroad" has been created to embody the concept. See the Scottsboro case or another account of the Scottsboro case, as probably the most famous example, in part because it was so highly contested.
The mechanism used to restore parity between the parties, to ensure fairness, is that the state bears the burden. The state must obey rules for gathering evidence and presenting its case. If the state does not follow the rules, the state must be penalized as a punitive measure, in order to prevent the abuse from becoming routine, even if this permits an otherwise guilty person to go free.
Everybody hates to have prisoners "free on technicalities". The response of the appellate judge should be to emphasize that due process is not a technicality, and that most such due process violations are offensively egregious. See, e.g., Miller-El v. Cockrell, 537 U.S. ___ (2003), where Dallas County prosecutors systematically excluded blacks from juries as late as 1986, and Abdur'Rahman v. Bell, where Tennessee prosecutors withheld evidence and misrepresented critical information, among other misconduct. Furthermore, the plain fact is that most due process violations result in a do-over: the state gets a chance to do it right and obey the rules in a new trial. Once in a courtroom, the guilty rarely escape punishment, even though the government must obey rules.
No less than half of the Bill of Rights establishes limits on the state's ability to prosecute and punish criminals, even guilty ones. That demonstrates where our core American ideals ought to lie and how appellate judges should approach questions of due process violations.
Governments have ugly instincts. They seek to accumulate power and use it without restraint. The Constitution tries to rein in these instincts, in part by setting up an independent judiciary who, at the appellate level, is in practice an arm of the government whose primary purpose is to protect citizens from the government.
Posted by Greg at August 22, 2003 3:03 PM
Naturally, the instant I post a screed claiming, inter alia, that executive clemency in Texas was purely notional, Gov. Goodhair pardons thirty-five people.
Of course, they were the Tulia 35, and if anybody deserved pardoning, it was them, but still.
"The perversity of the universe tends toward a maximum."