We were surfing the net just now, and came across an excellent blog by Jonathan Kirshbaum, called “Habeas Corpus Blog: Keeping Track of the Great Writ for New York State Prisoners.” You can check it out here.
What particularly caught our eye was yesterday’s post on Davis, which started off discussing why Scalia’s dissent was probably correct, and then turned into an excellent analysis of the cases touching on actual innocence. It’s recommended reading. Here’s a sample from the second half of the piece:
What is important to keep in mind is that, at the time of Herrera, the concept of actual innocence was more abstract. The decision was rendered before the tidal wave of exonerations based on DNA testing beginning in the early 1990’s. Thus, DNA testing has made actual innocence claims a more certain reality than at the time of Herrera.
It should be noted that in 2004, Congress passed the Innocence Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA Testing Program to help those already convicted obtain DNA testing in their cases. This landmark legislation demonstrates our society’s growing belief in the importance that the wrongfully convicted should obtain justice. In the face of this altered landscape, one would think that the Supreme Court would be compelled to find that a conviction of an actually innocent person does state a constitutional claim.
While Herrera concerned the execution of an innocent person, it would seem that actual innocence claims should apply with equal force in the non-capital context. It clearly is no less tolerable in our society that someone should be incarcerated and further punished based on a conviction for which he is actually innocent.
Once again, this type of actual innocence claim must be distinguished from the so-called “gateway” innocence claim in a habeas petition. In a habeas corpus proceeding, a state procedural default is not a bar to habeas relief where a compelling claim of actual innocence is made. In Schlup, the Supreme Court defined the standard for assessing this type of gateway actual innocence claim. The showing needed to meet this gateway claim would probably be lower than it would be for a hypothetical free-standing actual innocence claim. Schlup, 513 U.S. at 316.
Recently, in House v. Bell, the Supreme Court found that the petitioner had met the standard for a gateway actual innocence claim. House, 126 S. Ct. at 2078-86. The Court acknowledged that it remained an open question as to whether a free-standing actual innocence claim is possible under the U.S. Constitution. Id. at 2086-87. The Court refused to answer this question, stating that whatever burden a hypothetical free-standing actual innocence claim would require, the petitioner had not met it. Id. at 2087.
Thus, there have been strong indications that the Court will find that the claim exists. But it really is not clear under what constitutional right it would fall. But I guess that doesn’t matter so long as it exists somewhere in the Constitution. As I stated in my earlier post, the conundrum is that this right is not clearly established, so getting habeas relief on the claim will require jumping over some major hurdles. That’s why allowing Davis to present his claims to a court is based more on doing what’s right, than doing what’s possible at this point legally.
Good stuff. We’re adding him to our daily list of “must-reads”