Archive for August, 2008

McConnell efforts to limit protection of horses becomes issue

Sunday, August 31st, 2008

In a Herald-Leader story, reporter John Cheves reports that “Sen. Mitch McConnell has pressured the U.S. Dept. of Agriculture for years to back off its enforcement of the Horse Protection Act, even threatening to cut the agency’s funding.”

See this article at:
» McConnell opposed USDA inspectors
» Industry says it is addressing abuses
» Soring trial videos
One of the little known practices of the Walking Horse industry, is the “soring” of the Tennessee Walking Horses.  Those are the horse that raise their front fee high in the air in the fancy walk around the show ring.   Industry insiders say the way the horses are trained to raise their feet so high is by placing acid on their feet, thereby causing their feet to be sore.    The Dept. of Agrucultural and animal rights activists have long opposed this practice.

It it thought by some pundits that this issue could develop into a major campaign issue in McConnell’s race with Bruse Lunsford the the U.S. Senate.
Cheeves writes in his article:
 “In a series of letters to the agriculture secretary and in legislation, McConnell has told the USDA to withdraw its inspectors from more Tennessee Walking Horse events and let the industry conduct more of its own soring examinations.
USDA inspectors are so unpopular with horse owners and trainers, who fear soring citations and subsequent suspensions and fines, that participants sometimes flee events if the USDA is reported to be there. When USDA inspectors came to a July show in Owingsville, hundreds of competitors left rather than let their horses be examined.
Industry self-policing — the system urged by McConnell — does not uncover soring as effectively. According to studies, USDA inspectors are far more likely to discover and punish soring than industry inspectors.”

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Barry Miller: Widely published Scalia quote re: “innocense” is inaccurate. We have to agree.

Saturday, August 30th, 2008

August 30, 2008

 

LawReader user Barry Miller has brought to our attention a widely published misquote of U.S. Supreme Court Justice Scalia.  We have no idea how this quote arose, but upon review we conclude it is nothing more than an edited version and not the actual words of Scalia.

The following quote is widely published and is attributed to Justice Scalia:
 
“Mere factual innocence is no reason not to carry out a death sentence properly reached.”
 

The quote is attributed to the U.S. Supreme Court case of:  Herrera v. Collins 506 US 390 1993 .
 

Miller called this issue to our attention, and we have investigated the facts, and we conclude that he is correct.  Miller noted that he does not necessarily agree with Scalia, but he does feel he should be accurately quoted and quoted in context.   We agree.
 

The misquote is generally correct but these are not the exact words of Justice Scalia, and as Miller points out they are out of context when read without an understanding of the reasoning behind this issue.
 

What Scalia did say was:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
“My concern is that in making life easier for ourselves we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly-discovered-evidence-of-innocence claims in capital cases (in which event such federal claims, it can confidently be predicted, will become routine and even repetitive).”     See Scalia concurring opinion below
This quote above is Scalia’s opinion regarding the issue of newly discovered evidence.
 

 The following quotes from the opinion provide the appropriate context.
“Federal courts are not forums in which to relitigate state trials.”Wainwright+v.+Sykes,+433+U.S.+72,+90,+97+S.Ct.+2497,+2508,+53+L.Ed.2d+594+(1977)” href=”https://www.fastcase.com/Pages/Document.aspx?LTID=mTUDFfjUaFuN4YjDLqVaDN0T0mlh3mFlsU7uFYb%2bnt6vzLuU1PXpN%2fRf%2fDQrtMEzgR4PHpuBfgSAIVrSSr9w3PL0qmgZjJaKEeZyfUei6Ac%3d&ECF=++%3cI%3eWainwright+v.+Sykes%2c%3c%2fI%3e+433+U.S.+72%2c+90%2c+97+S.Ct.+2497%2c+2508%2c+53+L.Ed.2d+594+%281977%29″ target=”_blank”> Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)
“…our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”
 We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
          Petitioner’s newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. See Orfield, 2 Vill.L.Rev., at 333.”
 
           “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear
                       READ FOR YOURSELF THE COMPLETE DECISION:

 

506 U.S. 390
113 S.Ct. 853
122 L.Ed.2d 203
Leonel Torres HERRERA, Petitioner
v.
James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division.
No. 91-7328.
Argued Oct. 7, 1992.
Decided Jan. 25, 1993.
Syllabus *
          On the basis of proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and petitioner Herrera’s handwritten letter impliedly admitting his guilt, Herrera was convicted of the capital murder of Police Officer Carrisalez and sentenced to death in January 1982. After pleading guilty, in July 1982, to the related capital murder of Officer Rucker, Herrera unsuccessfully challenged the Carrisalez conviction on direct appeal and in two collateral proceedings in the Texas state courts, and in a federal habeas petition. Ten years after his conviction, he urged in a second federal habeas proceeding that newly discovered evidence demonstrated that he was “actually innocent” of the murders of Carrisalez and Rucker, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s due process guarantee therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother had committed the murders. The District Court, inter alia, granted his request for a stay of execution so that he could present his actual innocence claim and the supporting affidavits in state court. In vacating the stay, the Court of Appeals held that the claim was not cognizable on federal habeas absent an accompanying federal constitutional violation.
          Held: Herrera’s claim of actual innocence does not entitle him to federal habeas relief. Pp. ____.
          (a) Herrera’s constitutional claim for relief based upon his newly discovered evidence of innocence must be evaluated in light of the previous 10 years of proceedings in this case. In criminal cases, the trial is the paramount event for determining the defendant’s guilt or innocence. Where, as here, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the constitutional presumption of innocence disappears. Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution. See, e.g.,
Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 265-266, 67 L.Ed. 543. Thus, claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings. See Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770. The rule that a petitioner subject to defenses of abusive or successive use of the habeas writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence, see, e.g., Sawyer v. Whitley, 505 U.S. —-, —-, 112 S.Ct. 2514, —-, 120 L.Ed.2d 269 is inapplicable in this case. For Herrera does not seek relief from a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because new evidence shows that his conviction is factually incorrect. To allow a federal court to grant him typical habeas relief—a conditional order releasing him unless the State elects to retry him or vacating his death sentence—would in effect require a new trial 10 years after the first trial, not because of any constitutional violation at the first trial, but simply because of a belief that in light of his new found evidence a jury might find him not guilty at a second trial. It is far from clear that this would produce a more reliable determination of guilt or innocence, since the passage of time only diminishes the reliability of criminal adjudications. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335, and Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575, distinguished. Pp. ____.
          (b) Herrera’s contention that the Fourteenth Amendment’s due process guarantee supports his claim that his showing of innocence entitles him to a new trial, or at least to a vacation of his death sentence, is unpersuasive. Because state legislative judgments are entitled to substantial deference in the criminal procedure area, criminal process will be found lacking only where it offends some principle of justice so rooted in tradition and conscience as to be ranked as fundamental. See, e.g., Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281. It cannot be said that the refusal of Texas—which requires a new trial motion based on newly discovered evidence to be made within 30 days of imposition or suspension of sentence—to entertain Herrera’s new evidence eight years after his conviction transgresses a principle of fundamental fairness, in light of the Constitution’s silence on the subject of new trials, the historical availability of new trials based on newly discovered evidence, this Court’s amendments to Federal Rule of Criminal Procedure 33 to impose a time limit for filing new trial motions based on newly discovered evidence, and the contemporary practice in the States, only nine of which have no time limits for the filing of such motions. Pp. ____.
          (c) Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional “fail safe” remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion. Pp. ____.
          (d) Even assuming, for the sake of argument, that in a capital case a truly persuasive post-trial demonstration of “actual innocence” would render a defendant’s execution unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim, Herrera’s showing of innocence falls far short of the threshold showing which would have to be made in order to trigger relief. That threshold would necessarily be extraordinarily high because of the very disruptive effect that entertaining such claims would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States. Although not without probative value, Herrera’s affidavits are insufficient to meet such a standard, since they were obtained without the benefit of cross-examination and an opportunity to make credibility determinations; consist, with one exception, of hearsay; are likely to have been presented as a means of delaying Herrera’s sentence; were produced not at the trial, but over eight years later and only after the death of the alleged perpetrator, without a satisfactory explanation for the delay or for why Herrera pleaded guilty to the Rucker murder; contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night of the murders; and do not overcome the strong proof of Herrera’s guilt that was presented at trial. Pp. ____.
          954 F.2d 1029 (CA 5 1992), affirmed.
          REHNQUIST, C.J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O’CONNOR, J., filed a concurring opinion, in which KENNEDY, J., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined. WHITE, J., filed an opinion concurring in the judgment. BLACKMUN, J., filed a dissenting opinion, in Parts I, II, III, and IV of which STEVENS and SOUTER, JJ., joined.
          Talbot D’Alemberte, Miami, FL, for petitioner.
          Margaret P. Griffy, for respondent.
          Paul J. Larkin, Jr., DC, for U.S. as amicus curiae, supporting the respondent.
           Chief Justice REHNQUIST delivered the opinion of the Court.
          Petitioner Leonel Torres Herrera was convicted of capital murder and sentenced to death in January 1982. He unsuccessfully challenged the conviction on direct appeal and state collateral proceedings in the Texas state courts, and in a federal habeas petition. In February 1992—10 years after his conviction —he urged in a second federal habeas petition that he was “actually innocent” of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime. Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not.
          Shortly before 11 p.m. on an evening in late September 1981, the body of Texas Department of Public Safety Officer David Rucker was found by a passerby on a stretch of highway about six miles east of Los Fresnos , Texas, a few miles north of Brownsville in the Rio Grande Valley. Rucker’s body was lying beside his patrol car. He had been shot in the head.
          At about the same time, Los Fresnos Police Officer Enrique Carrisalez observed a speeding vehicle traveling west towards Los Fresnos, away from the place where Rucker’s body had been found, along the same road. Carrisalez, who was accompanied in his patrol car by Enrique Hernandez, turned on his flashing red lights and pursued the speeding vehicle. After the car had stopped briefly at a red light, it signaled that it would pull over and did so. The patrol car pulled up behind it. Carrisalez took a flashlight and walked toward the car of the speeder. The driver opened his door and exchanged a few words with Carrisalez before firing at least one shot at Carrisalez’ chest. The officer died nine days later.
          Petitioner Herrera was arrested a few days after the shootings and charged with the capital murder of both Carrisalez and Rucker. He was tried and found guilty of the capital murder of Carrisalez in January 1982, and sentenced to death. In July 1982, petitioner pleaded guilty to the murder of Rucker.
          At petitioner’s trial for the murder of Carrisalez, Hernandez, who had witnessed Carrisalez’ slaying from the officer’s patrol car, identified petitioner as the person who had wielded the gun. A declaration by Officer Carrisalez to the same effect, made while he was in the hospital, was also admitted. Through a license plate check, it was shown that the speeding car involved in Carrisalez’ murder was registered to petitioner’s “live-in” girlfriend. Petitioner was known to drive this car, and he had a set of keys to the car in his pants pocket when he was arrested. Hernandez identified the car as the vehicle from which the murderer had emerged to fire the fatal shot. He also testified that there had been only one person in the car that night.
          The evidence showed that Herrera’s Social Security card had been found alongside Rucker’s patrol car on the night he was killed. Splatters of blood on the car identified as the vehicle involved in the shootings, and on petitioner’s blue jeans and wallet were identified as type A blood—the same type which Rucker had. (Herrera has type O blood.) Similar evidence with respect to strands of hair found in the car indicated that the hair was Rucker’s and not Herrera’s. A handwritten letter was also found on the person of petitioner when he was arrested, which strongly implied that he had killed Rucker.1
          Petitioner appealed his conviction and sentence, arguing, among other things, that Hernandez’ and Carrisalez’ identifications were unreliable and improperly admitted. The Texas Court of Criminal Appeals affirmed, Herrera v. State, 682 S.W.2d 313 (1984), and we denied certiorari, 471 U.S. 1131, 105 S.Ct. 2665, 86 L.Ed.2d 282 (1985). Petitioner’s application for state habeas relief was denied. Ex parte Herrera, No. 12,848-02 (Tex.Crim.App., Aug. 2, 1985). Petitioner then filed a federal habeas petition, again challenging the identifications offered against him at trial. This petition was denied, see 904 F.2d 944 (CA5), and we again denied certiorari. 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990).
          Petitioner next returned to state court and filed a second habeas petition, raising, among other things, a claim of “actual innocence” based on newly discovered evidence. In support of this claim petitioner presented the affidavits of Hector Villarreal, an attorney who had represented petitioner’s brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of Raul Sr.’s former cellmates. Both individuals claimed that Raul Sr., who died in 1984, had told them that he—and not petitioner —had killed Officers Rucker and Carrisalez.2 The State District Court denied this application, finding that “no evidence at trial remotely suggest[ed] that anyone other than [petitioner] committed the offense.” Ex parte Herrera, No. 81-CR-672-C (Tex. 197th Jud.Dist., Jan. 14, 1991), ¶ 35. The Texas Court of Criminal Appeals affirmed, Ex parte Herrera, 819 S.W.2d 528 (1991), and we denied certiorari, Herrera v. Texas, 502 U.S. —-, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992).
          In February 1992, petitioner lodged the instant habeas petition—his second —in federal court, alleging, among other things, that he is innocent of the murders of Rucker and Carrisalez, and that his execution would thus violate the Eighth and Fourteenth Amendments. In addition to proffering the above affidavits, petitioner presented the affidavits of Raul Herrera, Jr., Raul Sr.’s son, and Jose Ybarra, Jr., a schoolmate of the Herrera brothers. Raul Jr. averred that he had witnessed his father shoot Officers Rucker and Carrisalez and petitioner was not present. Raul Jr. was nine years old at the time of the killings. Ybarra alleged that Raul Sr. told him one summer night in 1983 that he had shot the two police officers.3 Petitioner alleged that law enforcement officials were aware of this evidence, and had withheld it in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
          The District Court dismissed most of petitioner’s claims as an abuse of the writ. No. M-92-30 (SD Tex. Feb. 17, 1992). However, “in order to ensure that Petitioner can assert his constitutional claims and out of a sense of fairness and due process,” the District Court granted petitioner’s request for a stay of execution so that he could present his claim of actual innocence, along with the Raul Jr. and Ybarra affidavits, in state court. App. 38-39. Although it initially dismissed petitioner’s Brady claim on the ground that petitioner had failed to present “any evidence of withholding exculpatory material by the prosecution,” App. 37, the District Court also granted an evidentiary hearing on this claim after reconsideration, id., at 54.
          The Court of Appeals vacated the stay of execution. 954 F.2d 1029 (CA5 1992). It agreed with the District Court’s initial conclusion that there was no evidentiary basis for petitioner’s Brady claim, and found disingenuous petitioner’s attempt to couch his claim of actual innocence in Brady terms. 954 F.2d, at 1032. Absent an accompanying constitutional violation, the Court of Appeals held that petitioner’s claim of actual innocence was not cognizable because, under Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” See 954 F.2d at 1034.4 We granted certiorari, 502 U.S. —-, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992), and the Texas Court of Criminal Appeals stayed petitioner’s execution. We now affirm.
          Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975). But the evidence upon which petitioner’s claim of innocence rests was not produced at his trial, but rather eight years later. In any system of criminal justice, “innocence” or “guilt” must be determined in some sort of a judicial proceeding. Petitioner’s showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings in this case, which have stretched over a span of 10 years.
          A person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Other constitutional provisions also have the effect of ensuring against the risk of convicting an innocent person. See, e.g., Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (right to confront adverse witnesses); Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (right to compulsory process); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (right to effective assistance of counsel); Winship, supra (prosecution must prove guilt beyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (right to jury trial); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (prosecution must disclose exculpatory evidence); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to assistance of counsel); In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (right to “fair trial in a fair tribunal”). In capital cases, we have required additional protections because of the nature of the penalty at stake. See, e.g., Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (jury must be given option of convicting the defendant of a lesser offense). All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law.
          Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974) (“The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Here, it is not disputed that the State met its burden of proving at trial that petitioner was guilty of the capital murder of Officer Carrisalez beyond a reasonable doubt. Thus, in the eyes of the law, petitioner does not come before the Court as one who is “innocent,” but on the contrary as one who has been convicted by due process of law of two brutal murders.
          Based on affidavits here filed, petitioner claims that evidence never presented to the trial court proves him innocent notwithstanding the verdict reached at his trial. Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence. Tex.Rule App.Proc. 31(a)(1) (1992). The Texas courts have construed this 30-day time limit as jurisdictional. Beathard v. State, 767 S.W.2d 423, 433 (Tex.Crim.App.1989); Drew v. State, 743 S.W.2d 207, 222-223 (Tex.Crim.App.1987).
          Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Chief Justice Warren made this clear Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963) (emphasis added):
                    ”Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.
          This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact. See, e.g., Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 265, 67 L.Ed. 543 (1923) (Holmes, J.) (“[W]hat we have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved”); Hyde v. Shine, 199 U.S. 62, 84, 25 S.Ct. 760, 764, 50 L.Ed. 90 (1905) (“[I]t is well settled that upon habeas corpus the court will not weigh the evidence”) (emphasis in original); Ex parte Terry, 128 U.S. 289, 305, 9 S.Ct. 77, 80, 32 L.Ed. 405 (1888) (“As the writ of habeas corpus does not perform the office of a writ of error or an appeal, [the facts establishing guilt] cannot be re-examined or reviewed in this collateral proceeding”) (emphasis in original).
          More recent authority construing federal habeas statutes speaks in a similar vein. “Federal courts are not forums in which to relitigate state trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). The guilt or innocence determination in state criminal trials is “a decisive and portentous event.” Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). “Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Ibid. Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free-standing claims of actual innocence.
          Our decision Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), comes as close to authorizing evidentiary review of a state court conviction on federal habeas as any of our cases. There, we held that a federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. But in so holding, we emphasized:
          ”[T]his inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id., at 318-319, 99 S.Ct., at 2789 (citations omitted) (emphasis in original).
          We specifically noted that “the standard announced . . . does not permit a court to make its own subjective determination of guilt or innocence.” Id., at 320, n. 13, 99 S.Ct., at 2789, n. 13.
          The type of federal habeas review sought by petitioner here is different in critical respects than that authorized by Jackson. First, the Jackson inquiry is aimed at determining whether there has been an independent constitutional violation—i.e., a conviction based on evidence that fails to meet the Winship standard. Thus, federal habeas courts act in their historic capacity—to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights. Second, the sufficiency of the evidence review authorized by Jackson is limited to “record evidence.” 443 U.S., at 318, 99 S.Ct., at 2788. Jackson does not extend to nonrecord evidence, including newly discovered evidence. Finally, the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.
          Petitioner is understandably imprecise in describing the sort of federal relief to which a suitable showing of actual innocence would entitle him. In his brief he states that the federal habeas court should have “an important initial opportunity to hear the evidence and resolve the merits of Petitioner’s claim.” Brief for Petitioner 42. Acceptance of this view would presumably require the habeas court to hear testimony from the witnesses who testified at trial as well as those who made the statements in the affidavits which petitioner has presented, and to determine anew whether or not petitioner is guilty of the murder of Officer Carrisalez. Indeed, the dissent’s approach differs little from that hypothesized here.
          The dissent would place the burden on petitioner to show that he is “probably” innocent. Post, at ____. Although petitioner would not be entitled to discovery “as a matter of right,” the District Court would retain its “discretion to order discovery . . . when it would help the court make a reliable determination with respect to the prisoner’s claim.” Post, at ____. And although the District Court would not be required to hear testimony from the witnesses who testified at trial or the affiants upon whom petitioner relies, it would allow the District Court to do so “if the petition warrants a hearing.” Post, at ____. At the end of the day, the dissent would have the District Court “make a case-by-case determination about the reliability of newly discovered evidence under the circumstances,” and then “weigh the evidence in favor of the prisoner against the evidence of his guilt.” Post, at ____.
          The dissent fails to articulate the relief that would be available if petitioner were to meets its “probable innocence” standard. Would it be commutation of petitioner’s death sentence, new trial, or unconditional release from imprisonment? The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner, or in a capital case a similar conditional order vacating the death sentence. Were petitioner to satisfy the dissent’s “probable innocence” standard, therefore, the District Court would presumably be required to grant a conditional order of relief, which would in effect require the State to retry petitioner 10 years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner’s new found evidence a jury might find him not guilty at a second trial.
          Yet there is no guarantee that the guilt or innocence determination would be any more exact. To the contrary, the passage of time only diminishes the reliability of criminal adjudications. McCleskey v. Zant, 499 U.S. —-, —-, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991) (“[W]hen a habeas petitioner succeeds in obtaining a new trial, the ‘erosion of memory and dispersion of witnesses that occur with the passage of time’ prejudice the government and diminish the chances of a reliable criminal adjudication”) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion) (internal quotation marks omitted; citation omitted)); United States v. Smith, 331 U.S. 469, 476, 67 S.Ct. 1330, 1334, 91 L.Ed. 1610 (1947). Under the dissent’s approach, the District Court would be placed in the even more difficult position of having to weigh the probative value of “hot” and “cold” evidence on petitioner’s guilt or innocence.
          This is not to say that our habeas jurisprudence casts a blind eye towards innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U.S. —-, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the “equitable discretion” of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons. See McCleskey, supra, at —-, 111 S.Ct., at 1474. But this body of our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.
          Petitioner in this case is simply not entitled to habeas relief based on the reasoning of this line of cases. For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage of justice exception is available “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Kuhlmann, supra, at 454, 106 S.Ct., at 2627 (emphasis added). We have never held that it extends to free-standing claims of actual innocence. Therefore, the exception is inapplicable here.
          Petitioner asserts that this case is different because he has been sentenced to death. But we have “refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus.” Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (plurality opinion). We have, of course, held that the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed. See, e.g., McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (unanimity requirement impermissibly limits jurors’ consideration of mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (jury must be allowed to consider all of a capital defendant’s mitigating character evidence); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (same). But petitioner’s claim does not fit well into the doctrine of these cases, since, as we have pointed out, it is far from clear that a second trial 10 years after the first trial would produce a more reliable result.
          Perhaps mindful of this, petitioner urges not that he necessarily receive a new trial, but that his death sentence simply be vacated if a federal habeas court deems that a satisfactory showing of “actual innocence” has been made. Tr. of Oral Arg. 19-20. But such a result is scarcely logical; petitioner’s claim is not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place. It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison.
          Petitioner argues that our decision Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), supports his position. The plurality in Ford held that, because the Eighth Amendment prohibits the execution of insane persons, certain procedural protections inhere in the sanity determination. “[I]f the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact,” Justice Marshall wrote, “then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being.” Id., at 411, 106 S.Ct., at 2603. Because the Florida scheme for determining the sanity of persons sentenced to death failed “to achieve even the minimal degree of reliability,” id., at 413, 106 S.Ct., at 2603, the plurality concluded that Ford was entitled to an evidentiary hearing on his sanity before the District Court.
          Unlike petitioner here, Ford did not challenge the validity of his conviction. Rather, he challenged the constitutionality of his death sentence in view of his claim of insanity. Because Ford’s claim went to a matter of punishment—not guilt —it was properly examined within the purview of the Eighth Amendment. Moreover, unlike the question of guilt or innocence, which becomes more uncertain with time for evidentiary reasons, the issue of sanity is properly considered in proximity to the execution. Finally, unlike the sanity determination under the Florida scheme at issue in Ford, the guilt or innocence determination in our system of criminal justice is made “with the high regard for truth that befits a decision affecting the life or death of a human being.” Id., at 411, 106 S.Ct., at 2603.
          Petitioner also relies on Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), where we held that the Eighth Amendment requires reexamination of a death sentence based in part on a prior felony conviction which was set aside in the rendering State after the capital sentence was imposed. There, the State insisted that it was too late in the day to raise this point. But we pointed out that the Mississippi Supreme Court had previously considered similar claims by writ of error coram nobis. Thus, there was no need to override state law relating to newly discovered evidence in order to consider Johnson’s claim on the merits. Here, there is no doubt that petitioner seeks additional process—an evidentiary hearing on his claim of “actual innocence” based on newly discovered evidence—which is not available under Texas law more than 30 days after imposition or suspension of sentence. Tex.Rule App.Proc. 31(a)(1) (1992).5
          Alternatively, petitioner invokes the Fourteenth Amendment’s guarantee of due process of law in support of his claim that his showing of actual innocence entitles him to a new trial, or at least to a vacation of his death sentence.6 “[B]ecause the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition,” we have “exercis[ed] substantial deference to legislative judgments in this area.” Medina v. California, 505 U.S. —-, —- – —-, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992). Thus, we have found criminal process lacking only where it ” ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Ibid. (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977)). “Historical practice is probative of whether a procedural rule can be characterized as fundamental.” 505 U.S., at —-, 112 S.Ct., at 2577.
          The Constitution itself, of course, makes no mention of new trials. New trials in criminal cases were not granted in England until the end of the 17th century. And even then, they were available only in misdemeanor cases, though the writ of error coram nobis was available for some errors of fact in felony cases. Orfield, New Trial in Federal Criminal Cases, 2 Vill.L.Rev. 293, 304 (1957). The First Congress provided for new trials for “reasons for which new trials have usually been granted in courts of law.” Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83. This rule was early held to extend to criminal cases. Sparf and Hansen v. United States, 156 U.S. 51, 175, 15 S.Ct. 273, 321, 39 L.Ed. 343 (1895) (Gray, J., dissenting) (citing cases). One of the grounds upon which new trials were granted was newly discovered evidence. See F. Wharton, Criminal Pleading and Practice §§ 854-874, pp. 584-592 (8th ed. 1880).
          The early federal cases adhere to the common-law rule that a new trial may be granted only during the term of court in which the final judgment was entered. See, e.g., United States v. Mayer, 235 U.S. 55, 67, 35 S.Ct. 16, 18, 59 L.Ed. 129 (1914); United States v. Simmons, 27 F.Cas. 1080, (No. 16,289) (CCEDNY 1878). Otherwise, “the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors.” 235 U.S., at 67, 35 S.Ct., at 19. In 1934, this Court departed from the common-law rule and adopted a time limit—60 days after final judgment—for filing new trial motions based on newly discovered evidence. Rule II(3), Criminal Rules of Practice and Procedure, 292 U.S. 659, 662. Four years later, we amended Rule II(3) to allow such motions in capital cases “at any time” before the execution took place. 304 U.S. 592, 592 (1938) (codified at 18 U.S.C. § 688 (1940)).
          There ensued a debate as to whether this Court should abolish the time limit for filing new trial motions based on newly discovered evidence to prevent a miscarriage of justice, or retain a time limit even in capital cases to promote finality. See Orfield, supra, at 299-304. In 1945, we set a two-year time limit for filing new trial motions based on newly discovered evidence and abolished the exception for capital cases. Rule 33, Federal Rules of Criminal Procedure, 327 U.S. 821, 855-856 (“A motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment”).7 We have strictly construed the Rule 33 time limits. United States v. Smith, 331 U.S. 469, 473, 67 S.Ct. 1330, 1332, 91 L.Ed. 1610 (1947). And the Rule’s treatment of new trials based on newly discovered evidence has not changed since its adoption.
          The American Colonies adopted the English common law on new trials. Riddell, New Trial in Present Practice, 27 Yale L.J. 353, 360 (1917). Thus, where new trials were available, motions for such relief typically had to be filed before the expiration of the term during which the trial was held. H. Underhill, Criminal Evidence 579, n. 1 (1898); J. Bassett, Criminal Pleading and Practice 313 (1885). Over time, many States enacted statutes providing for new trials in all types of cases. Some States also extended the time period for filing new trial motions beyond the term of court, but most States required that such motions be made within a few days after the verdict was rendered or before the judgment was entered. See American Law Institute Code of Criminal Procedure 1040-1042 (Official Draft 1931) (reviewing contemporary new trials rules).
          The practice in the States today, while of limited relevance to our historical inquiry, is divergent. Texas is one of 17 States that requires a new trial motion based on newly discovered evidence to be made within 60 days of judgment.8 One State adheres to the common-law rule and requires that such a motion be filed during the term in which judgment was rendered.9 Eighteen jurisdictions have time limits ranging between 1 and 3 years, with 10 States and the District of Columbia following the 2-year federal time limit.10 Only 15 States allow a new trial motion based on newly discovered evidence to be filed more than 3 years after conviction. Of these States, 4 have waivable time limits of less than 120 days, 2 have waivable time limits of more than 120 days, and 9 States have no time limits.11
          In light of the historical availability of new trials, our own amendments to Rule 33, and the contemporary practice in the States, we cannot say that Texas’ refusal to entertain petitioner’s newly discovered evidence eight years after his conviction transgresses a principle of fundamental fairness “rooted in the traditions and conscience of our people.” Patterson v. New York, 432 U.S., at 202, 97 S.Ct., at 2322 (internal quotation marks and citations omitted). This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. See Tex. Const., Art. IV., § 11; Tex.Code Crim.Proc.Ann., Art. 48.01 (Vernon 1979). Clemency12 is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.13
          In England, the clemency power was vested in the Crown and can be traced back to the 700′s. W. Humbert, The Pardoning Power of the President 9 (1941). Blackstone thought this “one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment.” 4 W. Blackstone, Commentaries *397. Clemency provided the principal avenue of relief for individuals convicted of criminal offenses—most of which were capital —because there was no right of appeal until 1907. 1 L. Radzinowicz, A History of English Criminal Law 122 (1948). It was the only means by which one could challenge his conviction on the ground of innocence. United States Dept. of Justice, 3 Attorney General’s Survey of Release Procedures 73 (1939).
          Our Constitution adopts the British model and gives to the President the “Power to grant Reprieves and Pardons for Offences against the United States.” Art. II, § 2, cl. 1. In United States v. Wilson, 32 U.S. (7 Pet.) 150, 160-161, 8 L.Ed. 640 (1833), Chief Justice Marshall expounded on the President’s pardon power:
                    ”As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bears a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
                    ”A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.”
          See also Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-381, 18 L.Ed. 366 (1867); The Federalist No. 74, pp. 447-449 (C. Rossiter ed. 1961) (A. Hamilton) (“The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel”).
          Of course, although the Constitution vests in the President a pardon power, it does not require the States to enact a clemency mechanism. Yet since the British Colonies were founded, clemency has been available in America. C. Jensen, The Pardoning Power in the American States 3-4 (1922). The original States were reluctant to vest the clemency power in the executive. And although this power has gravitated toward the executive over time, several States have split the clemency power between the Governor and an advisory board selected by the legislature. See Survey of Release Procedures, supra, at 91-98. Today, all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency.14
          Executive clemency has provided the “fail safe” in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. In his classic work, Professor Edwin Borchard compiled 65 cases in which it was later determined that individuals had been wrongfully convicted of crimes. Clemency provided the relief mechanism in 47 of these cases; the remaining cases ended in judgments of acquittals after new trials. E. Borchard, Convicting the Innocent (1932). Recent authority confirms that over the past century clemency has been exercised frequently in capital cases in which demonstrations of “actual innocence” have been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356 (1992).15
          In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const., Art. IV, § 11, Tex.Code Crim.Proc.Ann.; Art. 48.01 (Vernon 1979). The board’s consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for a full pardon, Tex.Admin.Code, Tit. 37, § 143.1 (West Supp.1992), a commutation of death sentence to life imprisonment or appropriate maximum penalty, § 143.57, or a reprieve of execution, § 143.43. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days. § 143.41(a).
          The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will entertain applications for a recommendation of full pardon because of innocence upon receipt of the following: “(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based.” § 143.2. In this case, petitioner has apparently sought a 30-day reprieve from the Governor, but has yet to apply for a pardon, or even a commutation, on the ground of innocence or otherwise. Tr. of Oral Arg. 7, 34.
          As the foregoing discussion illustrates, in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant. Federal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings. Our federal habeas cases have treated claims of “actual innocence,” not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.
          We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. The showing made by petitioner in this case falls far short of any such threshold.
          Petitioner’s newly discovered evidence consists of affidavits. In the new trial context, motions based solely upon affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. See Orfield, 2 Vill.L.Rev., at 333. Petitioner’s affidavits are particularly suspect in this regard because, with the exception of Raul Herrera, Jr.’s, affidavit, they consist of hearsay. Likewise, in reviewing petitioner’s new evidence, we are mindful that defendants often abuse new trial motions “as a method of delaying enforcement of just sentences.” United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 467, 90 L.Ed. 562 (1946). Although we are not presented with a new trial motion per se, we believe the likelihood of abuse is as great—or greater —here.
          The affidavits filed in this habeas proceeding were given over eight years after petitioner’s trial. No satisfactory explanation has been given as to why the affiants waited until the 11th hour—and, indeed, until after the alleged perpetrator of the murders himself was dead—to make their statements. Taylor v. Illinois, 484 U.S. 400, 414, 108 S.Ct. 646, 655, 98 L.Ed.2d 798 (1988) (“[I]t is . . . reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed”). Equally troubling, no explanation has been offered as to why petitioner, by hypothesis an innocent man, pleaded guilty to the murder of Rucker.
          Moreover, the affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed. For instance, the affidavit of Raul Jr., who was nine years old at the time, indicates that there were three people in the speeding car from which the murderer emerged, whereas Hector Villarreal attested that Raul Sr. told him that there were two people in the car that night. Of course, Hernandez testified at petitioner’s trial that the murderer was the only occupant of the car. The affidavits also conflict as to the direction in which the vehicle was heading when the murders took place, and petitioner’s whereabouts on the night of the killings.
          Finally, the affidavits must be considered in light of the proof of petitioner’s guilt at trial—proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and a handwritten letter in which petitioner apologized for killing the officers and offered to turn himself in under certain conditions. See supra, at ____, and n. 1. That proof, even when considered alongside petitioner’s belated affidavits, points strongly to petitioner’s guilt.
          This is not to say that petitioner’s affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner’s trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.
          The judgment of the Court of Appeals is
          Affirmed.
           Justice O’CONNOR, with whom Justice KENNEDY joins, concurring.
          I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed—”contrary to contemporary standards of decency,” post, at ____ (dissenting opinion) (relying on Ford v. Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986)), “shocking to the conscience,” post, at ____ (relying on Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)), or offensive to a ” ‘ “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” ‘ ” ante, at ____ (opinion of the Court) (quoting Medina v. California, 505 U.S. —-, —- – —-, 112 S.Ct. 2572, 2573, 120 L.Ed.2d 353 (1992), in turn quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977))—the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word.
          As the Court explains, ante, at ____, petitioner is not innocent in the eyes of the law because, in our system of justice, “the trial is the paramount event for determining the guilt or innocence of the defendant.” Ante, at ____. Accord, post, at ____ (dissenting opinion). In petitioner’s case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that trial, the jury found petitioner guilty beyond a reasonable doubt. Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury’s verdict, demands a hearing in which to have his culpability determined once again. Ante, at ____ (opinion of the Court).
          Consequently, the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial. Ante, at ____, n. 6; see ante, at ____. In most circumstances, that question would answer itself in the negative. Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent. Ante, at ____ (opinion of the Court). The question similarly would be answered in the negative today, except for the disturbing nature of the claim before us. Petitioner contends not only that the Constitution’s protections “sometimes fail,” post, at ____ (dissenting opinion), but that their failure in his case will result in his execution—even though he is factually innocent and has evidence to prove it.
          Exercising restraint, the Court and Justice WHITE assume for the sake of argument that, if a prisoner were to make an exceptionally strong showing of actual innocence, the execution could not go forward. Justice BLACKMUN, in contrast, would expressly so hold; he would also announce the precise burden of proof. Compare ante, at ____ (opinion of the Court) (We assume, “for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim”), and ante, at ____ (WHITE, J., concurring in judgment) (assuming that a persuasive showing of actual innocence would render a conviction unconstitutional but explaining that, even under such an assumption, “petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could [find] proof of guilt beyond reasonable doubt.’ Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979)“), with post, at ____ (dissenting opinion) (“I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent”). Resolving the issue is neither necessary nor advisable in this case. The question is a sensitive and, to say the least, troubling one. It implicates not just the life of a single individual, but also the State’s powerful and legitimate interest in punishing the guilty, and the nature of state-federal relations. Indeed, as the Court persuasively demonstrates, ante, at ____, throughout our history the federal courts have assumed that they should not and could not intervene to prevent an execution so long as the prisoner had been convicted after a constitutionally adequate trial. The prisoner’s sole remedy was a pardon or clemency.
          Nonetheless, the proper disposition of this case is neither difficult nor troubling. No matter what the Court might say about claims of actual innocence today, petitioner could not obtain relief. The record overwhelmingly demonstrates that petitioner deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner’s new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court’s decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent. Nor could it: The record makes it abundantly clear that petitioner is not somehow the future victim of “simple murder,” post, at ____ (dissenting opinion), but instead himself the established perpetrator of two brutal and tragic ones.
          Petitioner’s first victim was Texas Department of Public Safety Officer David Rucker, whose body was found lying beside his patrol car. The body’s condition indicated that a struggle had taken place and that Rucker had been shot in the head at rather close range. Petitioner’s Social Security card was found nearby. Shortly after Rucker’s body was discovered, petitioner’s second victim, Los Fresnos Police Officer Enrique Carrisalez, stopped a car speeding away from the murder scene. When Carrisalez approached, the driver shot him. Carrisalez lived long enough to identify petitioner as his assailant. Enrique Hernandez, a civilian who was riding with Carrisalez, also identified petitioner as the culprit. Moreover, at the time of the stop, Carrisalez radioed a description of the car and its license plates to the police station. The license plates corresponded to a car that petitioner was known to drive. Although the car belonged to petitioner’s girlfriend, she did not have a set of keys; petitioner did. He even had a set in his pocket at the time of his arrest.
          When the police arrested petitioner, they found more than car keys; they also found evidence of the struggle between petitioner and Officer Rucker. Human blood was spattered across the hood, the left front fender, the grill, and the interior of petitioner’s car. There were spots of blood on petitioner’s jeans; blood had even managed to splash into his wallet. The blood was, like Rucker’s and unlike petitioner’s, type A. Blood samples also matched Rucker’s enzyme profile. Only 6% of the Nation’s population shares both Rucker’s blood type and his enzyme profile.
          But the most compelling piece of evidence was entirely of petitioner’s own making. When the police arrested petitioner, he had in his possession a signed letter in which he acknowledged responsibility for the murders; at the end of the letter, petitioner offered to turn himself in:
          ”I am terribly sorry for those [to whom] I have brought grief. . . . What happened to Rucker was for a certain reason. . . . [H]e violated some of [the] laws [of my drug business] and suffered the penalty, like the one you have for me when the time comes. . . . The other officer [Carrisalez] . . . had not[hing] to do [with] this. He was out to do what he had to do, protect, but that’s life. . . . [I]f this is read word for word over the media, I will turn myself in. . . .” Ante, at ____, n. 1 (opinion of the Court).
          There can be no doubt about the letter’s meaning. When the police attempted to interrogate petitioner about the killings, he told them “it was all in the letter’ ” and suggested that, if “they wanted to know what happened,” they should read it. Herrera v. State, 682 S.W.2d 313, 317 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1131, 105 S.Ct. 2665, 86 L.Ed.2d 282 (1985).
          Now, 10 years after being convicted on that seemingly dispositive evidence, petitioner has collected four affidavits that he claims prove his innocence. The affidavits allege that petitioner’s brother, who died six years before the affidavits were executed, was the killer—and that petitioner was not. Affidavits like these are not uncommon, especially in capital cases. They are an unfortunate although understandable occurrence. It seems that, when a prisoner’s life is at stake, he often can find someone new to vouch for him. Experience has shown, however, that such affidavits are to be treated with a fair degree of skepticism.
          These affidavits are no exception. They are suspect, produced as they were at the eleventh hour with no reasonable explanation for the nearly decade-long delay. See ante, at ____ (opinion of the Court). Worse, they conveniently blame a dead man someone who will neither contest the allegations nor suffer punishment as a result of them. Moreover, they contradict each other on numerous points, including the number of people in the murderer’s car and the direction it was heading when Officer Carrisalez stopped it. Ibid. They do not even agree on when Officer Rucker was killed. According to one, Rucker was killed when he and the murderer met at a highway rest stop. Brief for Petitioner 30. In contrast, another asserts that there was an initial meeting, but that Rucker was not killed until afterward when he “pulled [the murderer's car] over” on the highway. Id., at ____. And the affidavits are inconsistent with petitioner’s own admission of guilt. The affidavits blame petitioner’s deceased brother for both the Rucker and Carrisalez homicides—even though petitioner pleaded guilty to murdering Rucker and contested only the Carrisalez slaying.
          Most critical of all, however, the affidavits pale when compared to the proof at trial. While some bits of circumstantial evidence can be explained, petitioner offers no plausible excuse for the most damaging piece of evidence, the signed letter in which petitioner confessed and offered to turn himself in. One could hardly ask for more unimpeachable—or more unimpeached evidence of guilt.
          The conclusion seems inescapable: Petitioner is guilty. The dissent does not contend otherwise. Instead, it urges us to defer to the District Court’s determination that petitioner’s evidence was not “so insubstantial that it could be dismissed without any hearing at all.” Post, at ____. I do not read the District Court’s decision as making any such determination. Nowhere in its opinion did the District Court question the accuracy of the jury’s verdict. Nor did it pass on the sufficiency of the affidavits. The District Court did not even suggest that it wished to hold an evidentiary hearing on petitioner’s actual innocence claims. Indeed, the District Court apparently believed that a hearing would be futile because the court could offer no relief in any event. As the court explained, claims of “newly discovered evidence bearing directly upon guilt or innocence” are not cognizable on habeas corpus “unless the petition implicates a constitutional violation.” App. 38.
          As the dissent admits, post, at ____, the District Court had an altogether different reason for entering a stay of execution. It believed, from a “sense of fairness and due process,” App. 38, that petitioner should have the chance to present his affidavits to the state courts. Id., at 38-39; ante, at ____ (opinion of the Court). But the District Court did not hold that the state courts should hold a hearing either; it instead ordered the habeas petition dismissed and the stay lifted once the state court action was filed, without further condition. App. 39. As the Court of Appeals recognized, that rationale was insufficient to support the stay order. Texas courts do not recognize new evidence claims on collateral review. Id., at 67-68. Nor would they entertain petitioner’s claim as a motion for a new trial; under Texas law, such motions must be made within 30 days of trial. See ante, at ____, ____ (opinion of the Court); App. 68. Because petitioner could not have obtained relief—or even a hearing—through the state courts, it was error for the District Court to enter a stay permitting him to try.
          Of course, the Texas courts would not be free to turn petitioner away if the Constitution required otherwise. But the District Court did not hold that the Constitution required them to entertain petitioner’s claim. On these facts, that would be an extraordinary holding. Petitioner did not raise his claim shortly after Texas’ 30-day limit expired; he raised it eight years too late. Consequently, the District Court would have had to conclude not that Texas’ 30-day limit for new evidence claims was too short to comport with due process, but that applying an 8-year limit to petitioner would be. As the Court demonstrates today, see ante, at ____, there is little in fairness or history to support such a conclusion.
          But even if the District Court did hold that further federal proceedings were warranted, surely it abused its discretion. The affidavits do not reveal a likelihood of actual innocence. See ante, at ____, ____ (opinion of the Court); supra, at ____. In-person repetition of the affiants’ accounts at an evidentiary hearing could not alter that; the accounts are, on their face and when compared to the proof at trial, unconvincing. As a result, further proceedings were improper even under the rather lax standard the dissent urges, for ” ‘it plainly appear[ed] from the face of the petition and [the] exhibits annexed to it that the petitioner [wa]s not entitled to relief.’ ” Post, at ____ (quoting 28 U.S.C. § 2254 Rule 4).
          The abuse of discretion is particularly egregious given the procedural posture. The District Court actually entered an order staying the execution. Such stays on “second or successive federal habeas petition[s] should be granted only when there are ‘substantial grounds upon which relief might be granted,’ “ Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990) (quoting Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983)), and only when the equities favor the petitioner, Gomez v. United States District Court for the Northern Dist. of California, 503 U.S. —-, —-, 112 S.Ct. 1652, 1653, 118 L.Ed.2d 293 (1992) (Whether a claim is framed “as a habeas petition or § 1983 action, [what is sought] is an equitable remedy. . . . A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief”). Petitioner’s claim satisfied neither condition. The grounds petitioner offered in his habeas petition were anything but substantial. And the equities favored the State. Petitioner delayed presenting his new evidence until eight years after conviction—without offering a semblance of a reasonable excuse for the inordinate delay. At some point in time, the State’s interest in finality must outweigh the prisoner’s interest in yet another round of litigation. In this case, that point was well short of eight years.
          Unless federal proceedings and relief—if they are to be had at all—are reserved for “extraordinarily high” and “truly persuasive demonstration[s] of ‘actual innocence’ ” that cannot be presented to state authorities, ante, at ____ (opinion of the Court), the federal courts will be deluged with frivolous claims of actual innocence. Justice Jackson explained the dangers of such circumstances some 40 years ago:
          ”It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.” Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring in result).
          If the federal courts are to entertain claims of actual innocence, their attention, efforts, and energy must be reserved for the truly extraordinary case; they ought not be forced to sort through the insubstantial and the incredible as well.
            * * *
          Ultimately, two things about this case are clear. First is what the Court does not hold. Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim. Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge—no state court judge, not the District Court Judge, none of the three Judges of the Court of Appeals, and none of the Justices of this Court—has expressed doubt about petitioner’s guilt. Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open. If the Constitution’s guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.
           Justice SCALIA, with whom Justice THOMAS joins, concurring.
          We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.” I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) “shocks” the dissenters’ consciences, post, at ____, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience-shocking” as a legal test.
          I nonetheless join the entirety of the Court’s opinion, including the final portion (pages 869-870)—because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution 1 lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.
          My concern is that in making life easier for ourselves we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly-discovered-evidence-of-innocence claims in capital cases (in which event such federal claims, it can confidently be predicted, will become routine and even repetitive). A number of Courts of Appeals have hitherto held, largely in reliance on our unelaborated statement
Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief. See, e.g., Boyd v. Puckett, 905 F.2d 895, 896-897 (CA5), cert. denied, 498 U.S. 988, 111 S.Ct. 526, 112 L.Ed.2d 537 (1990); Stockton v. Virginia, 852 F.2d 740, 749 (CA4 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989); Swindle v. Davis, 846 F.2d 706, 707 (CA11 1988) (per curiam ); Byrd v. Armontrout, 880 F.2d 1, 8 (CA8 1989), cert. denied, 494 U.S. 1019, 110 S.Ct. 1326, 108 L.Ed.2d 501 (1990); Burks v. Egeler, 512 F.2d 221, 230 (CA6), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). I do not understand it to be the import of today’s decision that those holdings are to be replaced with a strange regime that assumes permanently, though only “arguendo, ” that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court’s extensive and scholarly discussion of the question presented in the present case does nothing but support our statement in Townsend, and strengthen the validity of the holdings based upon it.
           Justice WHITE, concurring in the judgment.
          In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979). For the reasons stated in the Court’s opinion, petitioner’s showing falls far short of satisfying even that standard, and I therefore concur in the judgment.
           Justice BLACKMUN, with whom Justice STEVENS and Justice SOUTER join with respect to Parts I-IV, dissenting.
          Nothing could be more contrary to contemporary standards of decency, Ford v. Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986), or more shocking to the conscience, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), than to execute a person who is actually innocent.
          I therefore must disagree with the long and general discussion that precedes the Court’s disposition of this case. See ante, at ____. That discussion, of course, is dictum because the Court assumes, “for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Ante, at ____. Without articulating the standard it is applying, however, the Court then decides that this petitioner has not made a sufficiently persuasive case. Because I believe that in the first instance the District Court should decide whether petitioner is entitled to a hearing and whether he is entitled to relief on the merits of his claim, I would reverse the order of the Court of Appeals and remand this case for further proceedings in the District Court.
I
          The Court’s enumeration, ante, at ____, of the constitutional rights of criminal defendants surely is entirely beside the point. These protections sometimes fail.1 We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas’ astonishing protestation to the contrary, see Tr. of Oral Arg. 37, I do not see how the answer can be anything but “yes.”
          The Eighth Amendment prohibits “cruel and unusual punishments.” This proscription is not static but rather reflects evolving standards of decency. Ford v. Wainwright, 477 U.S., at 406, 106 S.Ct. at 2600; Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion); Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). I think it is crystal clear that the execution of an innocent person is “at odds with contemporary standards of fairness and decency.” Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984). Indeed, it is at odds with any standard of decency that I can imagine.
          This Court has ruled that punishment is excessive and unconstitutional if it is “nothing more than the purposeless and needless imposition of pain and suffering,” or if it is “grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Gregg v. Georgia, 428 U.S., at 173, 96 S.Ct., at 2925 (opinion of Stewart, Powell, and STEVENS, JJ.). It has held that death is an excessive punishment for rape, Coker v. Georgia, 433 U.S., at 592, 97 S.Ct., at 2866, and for mere participation in a robbery during which a killing takes place. Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982). If it is violative of the Eighth Amendment to execute someone who is guilty of those crimes, then it plainly is violative of the Eighth Amendment to execute a person who is actually innocent. Executing an innocent person epitomizes “the purposeless and needless imposition of pain and suffering.” Coker v. Georgia, 433 U.S., at 592, 97 S.Ct., at 2866.2
          The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), the petitioner had been convicted of murder and sentenced to death on the basis of three aggravating circumstances. One of those circumstances was that he previously had been convicted of a violent felony in the State of New York. After Johnson had been sentenced to death, the New York Court of Appeals reversed his prior conviction. Although there was no question that the prior conviction was valid at the time of Johnson’s sentencing, this Court held that the Eighth Amendment required review of the sentence because “the jury was allowed to consider evidence that has been revealed to be materially inaccurate.” Id., at 590, 108 S.Ct., at 1989.3 In Ford v. Wainwright, supra, the petitioner had been convicted of murder and sentenced to death. There was no suggestion that he was incompetent at the time of his offense, at trial, or at sentencing, but subsequently he exhibited changes in behavior that raised doubts about his sanity. This Court held that Florida was required under the Eighth Amendment to provide an additional hearing to determine whether Ford was mentally competent, and that he could not be executed if he were incompetent. 477 U.S., at 410, 106 S.Ct., at 2602 (plurality opinion); id., at 422-423, 106 S.Ct., at 2608 (Powell, J., concurring in part and concurring in the judgment). Both Johnson and Ford recognize that capital defendants may be entitled to further proceedings because of an intervening development even though they have been validly convicted and sentenced to death.
          Respondent and the United States as amicus curiae argue that the Eighth Amendment does not apply to petitioner because he is challenging his guilt, not his punishment. Brief for Respondent 21-23; Brief for United States as Amicus Curiae 9-12. The majority attempts to distinguish Ford on that basis. Ante, at ____.4 Such reasoning, however, not only contradicts our decision Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), but also fundamentally misconceives the nature of petitioner’s argument. Whether petitioner is viewed as challenging simply his death sentence or also his continued detention, he still is challenging the State’s right to punish him. Respondent and the United States would impose a clear line between guilt and punishment, reasoning that every claim that concerns guilt necessarily does not involve punishment. Such a division is far too facile. What respondent and the United States fail to recognize is that the legitimacy of punishment is inextricably intertwined with guilt.
          Beck makes this clear. In Beck, the petitioner was convicted of the capital crime of robbery-intentional killing. Under Alabama law, however, the trial court was prohibited from giving the jury the option of convicting him of the lesser included offense of felony murder. We held that precluding the instruction injected an impermissible element of uncertainty into the guilt phase of the trial.
          ”To insure that the death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the State] is constitutionally prohibited from withdrawing that option in a capital case.” 447 U.S., at 638, 100 S.Ct., at 2390 (footnote omitted).
          [[DCQ!]] The decision in Beck establishes that, at least in capital cases, the Eighth Amendment requires more than reliability in sentencing. It also mandates a reliable determination of guilt. See also Spaziano v. Florida, 468 U.S., at 456, 104 S.Ct., at 3160.
          The Court also suggests that allowing petitioner to raise his claim of innocence would not serve society’s interest in the reliable imposition of the death penalty because it might require a new trial that would be less accurate than the first. Ante, at ____. This suggestion misses the point entirely. The question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence. Furthermore, it is far from clear that a State will seek to retry the rare prisoner who prevails on a claim of actual innocence. As explained in part III, infra, I believe a prisoner must show not just that there was probably a reasonable doubt about his guilt but that he is probably actually innocent. I find it difficult to believe that any State would chose to retry a person who meets this standard.
          I believe it contrary to any standard of decency to execute someone who is actually innocent. Because the Eighth Amendment applies to questions of guilt or innocence, Beck v. Alabama, 447 U.S., at 638, 100 S.Ct., at 2390, and to persons upon whom a valid sentence of death has been imposed, Johnson v. Mississippi, 486 U.S., at 590, 108 S.Ct., at 1988, I also believe that petitioner may raise an Eighth Amendment challenge to his punishment on the ground that he is actually innocent.
B
          Execution of the innocent is equally offensive to the Due Process Clause of the Fourteenth Amendment. The majority’s discussion misinterprets petitioner’s Fourteenth Amendment claim as raising a procedural rather than a substantive due process challenge.5
                    ”The Due Process Clause of the Fifth Amendment provides that ‘No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .’ This Court has held that the Due Process Clause protects individuals against two types of government action. So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ Rochin v. California, 342 U.S. 165, 172 [72 S.Ct. 205, 209, 96 L.Ed. 183] (1952), or interferes with rights ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325-326 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335 [96 S.Ct. 893, 903, 47 L.Ed.2d 18] (1976). This requirement has traditionally been referred to as ‘procedural’ due process.” United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987).
          Petitioner cites not Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), or Medina v. California, 505 U.S. —-, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), in support of his due process claim, but Rochin. Brief for Petitioner 32-33.
          Just last Term, we had occasion to explain the role of substantive due process in our constitutional scheme. Quoting the second Justice Harlan, we said:
          ” ‘[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points. . . . It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. . . .’ “ Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. —-, —-, 112 S.Ct. 2791, 2805, 120 L.Ed.2d 674 (1992) quoting Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1777, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).
          Petitioner’s claim falls within our due process precedents. In Rochin, deputy sheriffs investigating narcotics sales broke into Rochin’s room and observed him put two capsules in his mouth. The deputies attempted to remove the capsules from his mouth and, having failed, took Rochin to a hospital and had his stomach pumped. The capsules were found to contain morphine. The Court held that the deputies’ conduct “shock[ed] the conscience” and violated due process. 342 U.S., at 172, 72 S.Ct., at 209. “Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.” Ibid. The lethal injection that petitioner faces as an allegedly innocent person is certainly closer to the rack and the screw than the stomach pump condemned in Rochin. Execution of an innocent person is the ultimate ” ‘arbitrary impositio[n].’ ” Planned Parenthood, 505 U.S., at —-, 112 S.Ct., at 2805. It is an imposition from which one never recovers and for which one can never be compensated. Thus, I also believe that petitioner may raise a substantive due process challenge to his punishment on the ground that he is actually innocent.
C
          Given my conclusion that it violates the Eighth and Fourteenth Amendments to execute a person who is actually innocent, I find no bar Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to consideration of an actual innocence claim. Newly discovered evidence of petitioner’s innocence does bear on the constitutionality of his execution. Of course, it could be argued this is in some tension with Townsend § statement, id., at 317, 83 S.Ct., at 759, that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” That statement, however, is no more than distant dictum here, for we never had been asked to consider whether the execution of an innocent person violates the Constitution.
II
          The majority’s discussion of petitioner’s constitutional claims is even more perverse when viewed in the light of this Court’s recent habeas jurisprudence. Beginning with a trio of decisions in 1986, this Court shifted the focus of federal habeas review of successive, abusive, or defaulted claims away from the preservation of constitutional rights to a fact-based inquiry into the habeas petitioner’s guilt or innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (plurality opinion); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434; McCleskey v. Zant, 499 U.S. —-, —-, 111 S.Ct. 1454, 1469-1470, 113 L.Ed.2d 517 (1991). The Court sought to strike a balance between the State’s interest in the finality of its criminal judgments and the prisoner’s interest in access to a forum to test the basic justice of his sentence. Kuhlmann v. Wilson, 477 U.S., at 452, 106 S.Ct., at 2626. In striking this balance, the Court adopted the view of Judge Friendly that there should be an exception to the concept of finality when a prisoner can make a colorable claim of actual innocence. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970).
          Justice Powell, writing for the plurality in Wilson, explained the reason for focusing on innocence:
                    ”The prisoner may have a vital interest in having a second chance to test the fundamental justice of his incarceration. Even where, as here, the many judges who have reviewed the prisoner’s claims in several proceedings provided by the State and on his first petition for federal habeas corpus have determined that his trial was free from constitutional error, a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain.” 477 U.S., at 452, 106 S.Ct., at 2626.
          In other words, even a prisoner who appears to have had a constitutionally perfect trial, “retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated.” It is obvious that this reasoning extends beyond the context of successive, abusive, or defaulted claims to substantive claims of actual innocence. Indeed, Judge Friendly recognized that substantive claims of actual innocence should be cognizable on federal habeas. 38 U.Chi.L.Rev., at 159-160, and n. 87.
          Having adopted an “actual innocence” requirement for review of abusive, successive, or defaulted claims, however, the majority would now take the position that “the claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Ante, at ____. In other words, having held that a prisoner who is incarcerated in violation of the Constitution must show he is actually innocent to obtain relief, the majority would now hold that a prisoner who is actually innocent must show a constitutional violation to obtain relief. The only principle that would appear to reconcile these two positions is the principle that habeas relief should be denied whenever possible.
III
          The Eighth and Fourteenth Amendments, of course, are binding on the States, and one would normally expect the States to adopt procedures to consider claims of actual innocence based on newly discovered evidence. See Ford v. Wainwright, 477 U.S., at 411-417, 106 S.Ct., at 2602-2606 (plurality opinion) (minimum requirements for state-court proceeding to determine competency to be executed). The majority’s disposition of this case, however, leaves the States uncertain of their constitutional obligations.
A.
          Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The majority correctly points out: “A pardon is an act of grace.” Ante, at ____. The vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, we explicitly rejected the argument that executive clemency was adequate to vindicate the Eighth Amendment right not to be executed if one is insane. 477 U.S., at 416, 106 S.Ct., at 2605. The possibility of executive clemency “exists in every case in which a defendant challenges his sentence under the Eighth Amendment. Recognition of such a bare possibility would make judicial review under the Eighth Amendment meaningless.” Solem v. Helm, 463 U.S. 277, 303, 103 S.Ct. 3001, 3016, 77 L.Ed.2d 637 (1983).
          ”The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). If the exercise of a legal right turns on “an act of grace,” then we no longer live under a government of laws. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). It is understandable, therefore, that the majority does not say that the vindication of petitioner’s constitutional rights may be left to executive clemency.
B
          Like other constitutional claims, Eighth and Fourteenth Amendment claims of actual innocence advanced on behalf of a state prisoner can and should be heard in state court. If a State provides a judicial procedure for raising such claims, the prisoner may be required to exhaust that procedure before taking his claim of actual innocence to federal court. See 28 U.S.C. 2254(b) and (c). Furthermore, state-court determinations of factual issues relating to the claim would be entitled to a presumption of correctness in any subsequent federal habeas proceeding. See 28 U.S.C. § 2254(d).
          Texas provides no judicial procedure for hearing petitioner’s claim of actual innocence and his habeas petition was properly filed in district court under 28 U.S.C. § 2254. The district court is entitled to dismiss the petition summarily only if “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” 28 U.S.C. § 2254 Rule 4. If, as is the case here, the petition raises factual questions and the State has failed to provide a full and fair hearing, the district court is required to hold an evidentiary hearing. Townsend v. Sain, 372 U.S., at 313, 83 S.Ct., at 757.
          Because the present federal petition is petitioner’s second, he must either show cause for and prejudice from failing to raise the claim in his first petition or show that he falls within the “actual-innocence” exception to the cause and prejudice requirement. McCleskey v. Zant, 499 U.S., at —- – —-, 111 S.Ct., at 1470-1471). If petitioner can show that he is entitled to relief on the merits of his actual-innocence claim, however, he certainly can show that he falls within the “actual-innocence” exception to the cause and prejudice requirement and McCleskey would not bar relief.
C
          The question that remains is what showing should be required to obtain relief on the merits of an Eighth or Fourteenth Amendment claim of actual innocence. I agree with the majority that “in state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.” Ante, at ____. I also think that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Ante, at ____. The question is what “a truly persuasive demonstration” entails, a question the majority’s disposition of this case leaves open.
          In articulating the “actual-innocence” exception in our habeas jurisprudence, this Court has adopted a standard requiring the petitioner to show a ” ‘fair probability that, in light of all the evidence . . ., the trier of facts would have entertained a reasonable doubt of his guilt.’ ” Kuhlmann v. Wilson, 477 U.S., at 455, n. 17, 106 S.Ct., at 2627, n. 17. In other words, the habeas petitioner must show that there probably would be a reasonable doubt. See also Murray v. Carrier, 477 U.S., at 496, 106 S.Ct., at 2649 (exception applies when a constitutional violation has “probably resulted” in a mistaken conviction); McCleskey v. Zant, 499 U.S., at —-, 111 S.Ct., at 1470 (exception applies when a constitutional violation “probably has caused” a mistaken conviction).6
          I think the standard for relief on the merits of an actual-innocence claim must be higher than the threshold standard for merely reaching that claim or any other claim that has been procedurally defaulted or is successive or abusive. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent. This standard is supported by several considerations. First, new evidence of innocence may be discovered long after the defendant’s conviction. Given the passage of time, it may be difficult for the State to retry a defendant who obtains relief from his conviction or sentence on an actual-innocence claim. The actual-innocence proceeding thus may constitute the final word on whether the defendant may be punished. In light of this fact, an otherwise constitutionally valid conviction or sentence should not be set aside lightly. Second, conviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the defendant’s guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.
          In considering whether a prisoner is entitled to relief on an actual-innocence claim, a court should take all the evidence into account, giving due regard to its reliability. See Sawyer v. Whitley, 505 U.S., at —-, n. 5, 112 S.Ct., at 2519, n. 5; Kuhlmann v. Wilson, 477 U.S., at 455, n. 17, 106 S.Ct., at 2627, n. 17; Friendly, 38 U.Chi.L.Rev., at 160. Because placing the burden on the prisoner to prove innocence creates a presumption that the conviction is valid, it is not necessary or appropriate to make further presumptions about the reliability of newly discovered evidence generally. Rather, the court charged with deciding such a claim should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances. The court then should weigh the evidence in favor of the prisoner against the evidence of his guilt. Obviously, the stronger the evidence of the prisoner’s guilt, the more persuasive the newly discovered evidence of innocence must be. A prisoner raising an actual-innocence claim in a federal habeas petition is not entitled to discovery as a matter of right. Harris v. Nelson, 394 U.S. 286, 295, 89 S.Ct. 1082, 1088, 22 L.Ed.2d 281 (1969); 28 U.S.C. § 2254 Rule 6. The district court retains discretion to order discovery, however, when it would help the court make a reliable determination with respect to the prisoner’s claim. Harris v. Nelson, 394 U.S., at 299-300, 89 S.Ct., at 1090-1091; see Advisory Committee Note to 28 U.S.C. § 2254 Rule 6.
          It should be clear that the standard I would adopt would not convert the federal courts into ” ‘forums in which to relitigate state trials.’ ” Ante, at ____, quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983). It would not “require the habeas court to hear testimony from the witnesses who testified at the trial,” ante, at ____, though, if the petition warrants a hearing, it may require the habeas court to hear the testimony of “those who made the statements in the affidavits which petitioner has presented.” Ibid. I believe that if a prisoner can show that he is probably actually innocent, in light of all the evidence, then he has made “a truly persuasive demonstration,” ante, at ____, and his execution would violate the Constitution. I would so hold.
IV
          In this case, the District Court determined that petitioner’s newly discovered evidence warranted further consideration. Because the District Court doubted its own authority to consider the new evidence, it thought that petitioner’s claim of actual innocence should be brought in state court, see App. 38-39, but it clearly did not think that petitioner’s evidence was so insubstantial that it could be dismissed without any hearing at all.7 I would reverse the order of the Court of Appeals and remand the case to the District Court to consider whether petitioner has shown, in light of all the evidence, that he is probably actually innocent.
          I think it is unwise for this Court to step into the shoes of a district court and rule on this petition in the first instance. If this Court wishes to act as a district court, however, it must also be bound by the rules that govern consideration of habeas petitions in district court. A district court may summarily dismiss a habeas petition only if “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” 28 U.S.C. § 2254 Rule 4. In one of the affidavits, Hector Villarreal, a licensed attorney and former state court judge, swears under penalty of perjury that his client Raul Herrera confessed that he, and not petitioner, committed the murders. No matter what the majority may think of the inconsistencies in the affidavits or the strength of the evidence presented at trial, this affidavit alone is sufficient to raise factual questions concerning petitioner’s innocence that cannot be resolved simply by examining the affidavits and the petition.
          I do not understand why the majority so severely faults petitioner for relying only on affidavits. Ante, at ____. It is common to rely on affidavits at the preliminary-consideration stage of a habeas proceeding. The opportunity for cross-examination and credibility determinations comes at the hearing, assuming that the petitioner is entitled to one. It makes no sense for this Court to impugn the reliability of petitioner’s evidence on the ground that its credibility has not been tested when the reason its credibility has not been tested is that petitioner’s habeas proceeding has been truncated by the Court of Appeals and now by this Court. In its haste to deny petitioner relief, the majority seems to confuse the question whether the petition may be dismissed summarily with the question whether petitioner is entitled to relief on the merits of his claim.
V
          I have voiced disappointment over this Court’s obvious eagerness to do away with any restriction on the States’ power to execute whomever and however they please. Coleman v. Thompson, 501 U.S. —-, —-, 111 S.Ct. 2546, 2569, 115 L.Ed.2d 640 (1991) (dissenting opinion). Coleman v. Thompson, 504 U.S. —-, 112 S.Ct. 1845, 119 L.Ed.2d 1 (1992) (dissent from denial of stay of execution). I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all. Sawyer v. Whitley, 505 U.S. at —- – —-, 112 S.Ct., at 2528-2530 (opinion concurring in the judgment). Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

1. The letter read: “To whom it may concern: I am terribly sorry for those I have brought grief to their lives. Who knows why? We cannot change the future’s problems with problems from the past. What I did was for a cause and purpose. One law runs others, and in the world we live in, that’s the way it is.

“I’m not a tormented person. . . . I believe in the law. What would it be without this [sic ] men that risk their lives for others, and that’s what they should be doing—protecting life, property, and the pursuit of happiness. Sometimes, the law gets too involved with other things that profit them. The most laws that they make for people to break them, in other words, to encourage crime.

“What happened to Rucker was for a certain reason. I knew him as Mike Tatum. He was in my business, and he violated some of its laws and suffered the penalty, like the one you have for me when the time comes.

“My personal life, which has been a conspiracy since my high school days, has nothing to do with what has happened. The other officer that became part of our lives, me and Rucker’s (Tatum), that night had not to do in this [sic ]. He was out to do what he had to do, protect, but that’s life. There’s a lot of us that wear different faces in lives every day, and that is what causes problems for all. [Unintelligible word].

“You have wrote all you want of my life, but think about yours, also. [Signed Leonel Herrera].

“I have tapes and pictures to prove what I have said. I will prove my side if you accept to listen. You [unintelligible word] freedom of speech, even a criminal has that right. I will present myself if this is read word for word over the media, I will turn myself in; if not, don’t have millions of men out there working just on me while others—robbers, rapists, or burglars —are taking advantage of the law’s time. Excuse my spelling and writing. It’s hard at times like this.” App. to Brief for United States as Amicus Curiae 3a-4a.

2. Villarreal’s affidavit is dated December 11, 1990. He attested that while he was representing Raul Sr. on a charge of attempted murder in 1984, Raul Sr. had told him that he, petitioner, their father, Officer Rucker, and the Hidalgo County Sheriff were involved in a drug-trafficking scheme; that he was the one who had shot Officers Rucker and Carrisalez; that he didn’t tell anyone about this because he thought petitioner would be acquitted; and that after petitioner was convicted and sentenced to death, he began blackmailing the Hidalgo County Sheriff. According to Villarreal, Raul Sr. was killed by Jose Lopez, who worked with the sheriff on drug-trafficking matters and was present when Raul Sr. murdered Rucker and Carrisalez, to silence him.

Palacious’ affidavit is dated December 10, 1990. He attested that while he and Raul Sr. shared a cell together in the Hidalgo County jail in 1984, Raul Sr. told him that he had shot Rucker and Carrisalez.

3. Raul Jr.’s affidavit is dated January 29, 1992. Ybarra’s affidavit is dated January 9, 1991. It was initially submitted with Petitioner’s Reply to State’s Brief in Response to Petitioner’s Petition for Writ of Habeas Corpus filed January 18, 1991, in the Texas Court of Criminal Appeals.

4. After the Court of Appeals vacated the stay of execution, petitioner attached a new affidavit by Raul Jr. to his Petition for Rehearing, which was denied. The affidavit alleges that during petitioner’s trial, various law enforcement officials and the Hidalgo County Sheriff told Raul Jr. not to say what happened on the night of the shootings and threatened his family.

5. The dissent relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), for the proposition that, “at least in capital cases, the Eighth Amendment requires more than reliability in sentencing. It also mandates a reliable determination of guilt.” Post, at ____. To the extent Beck rests on Eighth Amendment grounds, it simply emphasizes the importance of ensuring the reliability of the guilt determination in capital cases in the first instance. We have difficulty extending this principle to hold that a capital defendant who has been afforded a full and fair trial may challenge his conviction on federal habeas based on after-discovered evidence.

6. The dissent takes us to task for examining petitioner’s Fourteenth Amendment claim in terms of procedural rather than substantive due process. Because “[e]xecution of an innocent person is the ultimate ‘arbitrary impositio[n],’ ” post, at ____, quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. —-, —-, 112 S.Ct. 2791, 2805, 120 L.Ed.2d 674 (1992) (internal quotation marks omitted), the dissent concludes that “petitioner may raise a substantive due process challenge to his punishment on the ground that he is actually innocent.” Post, at ____. But the dissent puts the cart before the horse. For its due process analysis rests on the assumption that petitioner is in fact innocent. However, as we have discussed, petitioner does not come before this Court as an innocent man, but rather as one who has been convicted by due process of law of two capital murders. The question before us, then, is not whether due process prohibits the execution of an innocent person, but rather whether it entitles petitioner to judicial review of his “actual innocence” claim. This issue is properly analyzed only in terms of procedural due process.

7. In response to the second preliminary draft of the Federal Rules of Criminal Procedure, Chief Justice Harlan Stone forwarded a memorandum on behalf of the Court to the Rules Advisory Committee with various comments and suggestions, including the following: “It is suggested that there should be a definite time limit within which motions for new trial based on newly discovered evidence should be made, unless the trial court in its discretion, for good cause shown, allows the motion to be filed. Is it not desirable that at some point of time further consideration of criminal cases by the court should be at an end, after which appeals should be made to Executive clemency alone?” 7 Drafting History of the Federal Rules of Criminal Procedure 3, 7 (M. Wilken & N. Triffin eds. 1991) (responding to proposed Rule 35). As noted above, we eventually rejected the adoption of a flexible time limit for new trial motions, opting instead for a strict two-year time limit.

8. Ala.Code § 15-17-5 (1982) (30 days); Ariz.Rule Crim.Proc. 24.2(a) (1987) (60 days); Ark.Rule Crim.Proc. 36.22 (1992) (30 days); Fla.Rule Crim.Proc. 3.590 (1992) (10 days); Haw.Rule Penal Proc. 33 (1992) (10 days); Ill.Rev.Stat., ch. 38, ¶ 116-1 (1991) (30 days); Ind.Rule Crim.Proc. 16 (1992) (30 days); Mich.Ct.Rule Crim.Proc. 6.431(A)(1) (1992) (42 days); Minn.Rule Crim.Proc. 26.04(3) (1992) (15 days); Mo. Rule Crim.Proc. 29.11(b) (1992) (15-25 days); Mont.Code Ann. § 46-16-702(2) (1991) (30 days); S.D. Codified Laws § 23A-29-1 (1988) (10 days); Tenn.Rule Crim.Proc. 33(b) (1992) (30 days); Tex.Rule App.Proc. 31(a)(1) (1992) (30 days); Utah Rule Crim.Proc. 24(c) (1992) (10 days); Va.Sup.Ct. Rule 3A:15(b) (1992) (21 days); Wis.Stat. § 809.30(2)(b) (1989-1990) (20 days).

9. Miss.Circuit Ct.Crim.Rule 5.16 (1992).

10. Alaska Rule Ct., Crim.Rule 33 (1988) (two years); Conn.Gen.Stat. §§ 52-270, 52-582 (1991) (three years); Del.Ct.Crim.Rule 33 (1987) (two years); D.C.Super.Ct.Crim.Rule 33 (1992) (two years); Kan.Stat. Ann. § 22-3501 (1988) (two years); La.Code Crim.Proc.Ann., Art. 853 (West 1984) (one year); Maine Rule Crim.Proc. 33 (1992) (two years); Md.Rule Crim.Proc. 4-331(c) (1992) (one year); Neb.Rev.Stat. § 29-2103 (1989) (three years); Nev.Rev.Stat. § 176.515(3) (1991) (two years); N.H.Rev.Stat.Ann. § 526:4 (1974) (three years); N.M.Rule Crim.Proc. 5-614(C) (1992) (two years); N.D.Rule Crim.Proc. 33(b) (1992-1993) (two years); Okla.Ct.Rule Crim.Proc., ch. 15, § 953 (1992) (one year); R.I.Super.Ct.Rule Crim.Proc. 33 (1991-1992) (two years); Vt.Rule Crim.Proc. 33 (1983) (two years); Wash.Crim.Rule 7.8(b) (1993) (one year); Wyo.Rule Crim.Proc. 33(c) (1992) (two years).

11. Cal.Penal Code Ann. § 1181(8) (West 1985) (no time limit); Colo.Rule Crim.Proc. 33 (Supp.1992) (no time limit); Ga.Code Ann. §§ 5-5-40, 5-5-41 (1982) (30 days, can be extended); Idaho Code § 19-2407 (Supp.1992) (14 days, can be extended); Iowa Rule Crim.Proc. 23 (1993) (45 days, can be waived); Ky. Rule Crim.Proc. 10.06 (1983) (one year, can be waived); Mass.Rule Crim.Proc. 30 (1979) (no time limit); N.J.Rule Crim.Prac. 3:20-2 (1993) (no time limit); N.Y.Crim.Proc.Law § 440.10(1)(g) (McKinney 1983) (no time limit); N.C.Gen.Stat. § 15A-1415(b)(6) (1988) (no time limit); Ohio Rule Crim.Proc. 33(A)(6), (B) (1988) (120 days, can be waived); Ore.Rev.Stat. § 136.535 (1991) (five days, can be waived); Pa.Rule Crim.Proc. 1123(d) (1992) (no time limit); S.C.Rule Crim.Proc. 29(b) (Supp.1991) (no time limit); W.Va.Rule Crim.Proc. 33 (1992) (no time limit).

12. The term “clemency” refers not only to full or conditional pardons, but also commutations, remissions of fines, and reprieves. See Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex.L.Rev. 569, 575-578 (1991).

13. The dissent relies on the plurality opinion in Ford v. Wainw right, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), to support the proposition that “[t]he vindication of rights guaranteed by the Constitution has never been made to turn on the unreviewable discretion of an executive official or administrative tribunal.” Post, at ____. But that case is inapposite insofar as it pertains to our discussion of clemency here. The Ford plurality held that Florida’s procedures for entertaining post-trial claims of insanity, which vested the sanity determination entirely within the executive branch, were “inadequate to preclude federal redetermination of the constitutional issue [of Ford's sanity].” 477 U.S., at 416, 106 S.Ct., at 2605. Unlike Ford’s claim of insanity, which had never been presented in a judicial proceeding, petitioner’s claim of “actual innocence” comes 10 years after he was adjudged guilty beyond a reasonable doubt after a full and fair trial. As the following discussion indicates, it is clear that clemency has provided the historic mechanism for obtaining relief in such circumstances.

14. Ala. Const., Amend. 38, Ala.Code § 15-18-100 (1982); Ariz. Const., Art. V, § 5, Ariz.Rev.Stat.Ann. §§ 31-443, 31-445 (1986 and Supp.1992); Ark. Const., Art. VI, § 18, Ark.Code Ann. §§ 5-4-607, 16-93-204 (Supp.1991); Cal. Const., Art. VII, § 1, Cal.Govt.Code Ann. § 12030(a) (West 1992); Colo. Const., Art. IV, § 7, Colo.Rev.Stat. §§ 16-17-101, 16-17-102 (1986); Conn. Const., Art. IV, § 13, Conn.Gen.Stat. § 18-26 (1988); Del. Const., Art. VII, § 1, Del.Code Ann., Tit. 29, § 2103 (1991); Fla. Const., Art. IV, § 8, Fla.Stat. § 940.01 (Supp.1991); Ga. Const., Art. IV, § 2, ¶ 2, Ga.Code Ann. §§ 42-9-20, 42-9-42 (1991); Idaho Const., Art. IV, § 7, Idaho Code §§ 20-240 (Supp.1992), 67-804 (1989); Ill. Const., Art. V, § 12, Ill.Rev.Stat., ch. 38, ¶ 1003-3-13 (1991); Ind. Const., Art. V, § 17, Ind.Code §§ 11-9-2-1 to 11-9-2-4, 35-38-6-8 (1988); Ky. Const., § 77; La. Const., Art. IV, § 5(E), La.Rev.Stat.Ann. § 15:572 (West 1992); Md. Const., Art. II, § 20, Md.Ann.Code, Art. 27, § 77 (1992), and Art. 41, § 4-513 (1990); Miss. Const., Art. V, § 124, Miss.Code Ann. § 47-5-115 (1981); Mo. Const., Art. IV, § 7, Mo.Rev.Stat. §§ 217.220 (Vernon Supp.1992), 552.070 (Vernon 1987); Mont. Const., Art. VI, § 12, Mont.Code Ann. §§ 46-23-301 to 46-23-316 (1991); Neb. Const., Art. IV, § 13, Neb.Rev.Stat. §§ 83-1, 127 to 83-1, 132 (1987); Nev. Const., Art. V, § 13, Nev.Rev.Stat. § 213.080 (1991); N.H. Const., pt. 2, Art. 52, N.H.Rev.Stat.Ann. § 4:23 (1988); N.J. Const., Art. V, § 2, ¶ 1, N.J.Stat.Ann. §§ 2A:167-4, 2A:167-12 (West 1985); N.M. Const., Art. V, § 6, N.M.Stat.Ann. § 31-21-17 (1990); N.C. Const., Art. III, § 5(6), N.C.Gen.Stat. §§ 147-23 to 147-25 (1987); Ohio Const., Art. III, § 11, Ohio Rev.Code Ann. §§ 2967.1 to 2967.12 (1987 and Supp.1991); Okla. Const., Art. VI, § 10, Okla.Stat., Tit. 21, § 701.11a (Supp.1990); Ore. Const., Art. V, § 14, Ore.Rev.Stat. §§ 144.640 to 144.670 (1991); Pa. Const., Art. IV, § 9, 61 Pa.Stat.Ann., Tit. 61, § 2130 (Purdon Supp.1992); S.C. Const., Art. IV, § 14, S.C.Code Ann. §§ 24-21-910 to 24-21-1000 (1977 and Supp.1991); S.D. Const., Art. IV, § 3, S.D. Codified Laws §§ 23A-27A-20 to 23A-27A-21, 24-14-1 (1988); Tenn. Const., Art. III, § 6, Tenn.Code Ann. §§ 40-27-101 to 40-27-109 (1990); Tex. Const., Art. IV, § 11, Tex.Code Crim.Proc.Ann. § 48.01 (Vernon 1979); Utah Const., Art. VII, § 12, Utah Code Ann. § 77-27-5.5 (Supp.1992); Va. Const., Art. V, § 12, Va.Code Ann. § 53.1-230 (1991); Wash. Const., Art. III, § 9, Wash.Rev.Code § 10.01.120 (1992); Wyo. Const., Art. IV, § 5, Wyo.Stat. § 7-13-801 (1987).

15. The dissent points to one study concluding that 23 innocent persons have been executed in the United States this century as support for the proposition that clemency requests by persons believed to be innocent are not always granted. See post, at ____, n. 1 (citing Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21 (1987)). Although we do not doubt that clemency—like the criminal justice system itself is fallible, we note that scholars have taken issue with this study. See Comment, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan.L.Rev. 121 (1988).

1. My reference is to an article by Professor Monaghan, which discusses the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981).

1. One impressive study has concluded that 23 innocent people have been executed in the United States in this century, including one as recently as 1984. Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan.L.Rev. 21, 36, 173-179 (1987); M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356 (1992). The majority cites this study to show that clemency has been exercised frequently in capital cases when showings of actual innocence have been made. See ante, at __. But the study also shows that requests for clemency by persons the authors believe were innocent have been refused. See, e.g., Bedau & Radelet, 40 Stan.L.Rev., at 91 (discussing James Adams who was executed in Florida on May 10, 1984); M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence, at 5-10 (same).

2. It also may violate the Eighth Amendment to imprison someone who is actually innocent. Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962) (“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold”). On the other hand, this Court has noted that ” ‘death is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality.’ “ Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980), quoting Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (opinion of STEVENS, J.). We are not asked to decide in this case whether petitioner’s continued imprisonment would violate the Constitution if he actually is innocent, see Brief for Petitioner 39, n. 52; Tr. of Oral Arg. 3-5, and I do not address that question.

3. The majority attempts to distinguish Johnson on the ground that Mississippi previously had considered claims like Johnson’s by writ of error coram nobis. Ante, at ____. We considered Mississippi’s past practice in entertaining such claims, however, to determine not whether an Eighth Amendment violation had occurred but whether there was an independent and adequate state ground preventing us from reaching the merits of Johnson’s claim. See 486 U.S., at 587-589, 108 S.Ct., at 1987-1988. Respondent does not argue that there is any independent and adequate state ground that would prevent us from reaching the merits in this case.

4. The Court also suggests that Ford is distinguishable because “unlike the question of guilt or innocence . . . the issue of sanity is properly considered in proximity to the execution.” Ante, at ____. Like insanity, however, newly discovered evidence of innocence may not appear until long after the conviction and sentence. In Johnson, the New York Court of Appeals decision that required reconsideration of Johnson’s sentence came five years after he had been sentenced to death. 486 U.S., at 580-582, 108 S.Ct., at 1983-1985.

5. The majority’s explanation for its failure to address petitioner’s substantive due process argument is fatuous. The majority would deny petitioner the opportunity to bring a substantive due process claim of actual innocence because a jury has previously found that he is not actually innocent. See ante, at ____, n. 6. To borrow a phrase, this “puts the cart before the horse.” Ibid.

Even under the procedural due process framework of Medina v. California, 505 U.S. —-, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), the majority’s analysis is incomplete, for it fails to consider “whether the rule transgresses any recognized principle of ‘fundamental fairness’ in operation.” Id., at —-, 112 S.Ct., at 2578, quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990).

6. Last Term Sawyer v. Whitley, 505 U.S. —-, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), this Court adopted a different standard for determining whether a federal habeas petitioner bringing a successive, abusive, or defaulted claim has shown “actual innocence” of the death penalty. Under Sawyer, the petitioner must “show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law.” Id., at —-, 112 S.Ct., at 2515. That standard would be inappropriate here. First, it requires a showing of constitutional error in the trial process, which, for reasons already explained, is inappropriate when petitioner makes a substantive claim of actual innocence. Second, it draws its “no reasonable juror” standard from Jackson v. Virginia’s standard for sufficiency of the evidence. As I explain below, however, sufficiency of the evidenc e review differs in important ways from the question of actual innocence. Third, the Court developed this standard for prisoners who are concededly guilty of capital crimes. Here, petitioner claims that he is actually innocent of the capital crime.

7. Justice O’CONNOR reads too much into the fact that the District Court failed to pass on the sufficiency of the affidavits, did not suggest that it wished to hold an evidentiary hearing, and did not retain jurisdiction after the state court action was filed. Ante, at ____. The explanation for each of these actions, as Justice O’CONNOR notes, is that the District Court believed that it could offer no relief in any event. Ante, at ____.

 

 

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An Important Upcoming Supreme Court Case Raises Questions About Both the Fourth Amendment and the Weight of Precedent

Saturday, August 30th, 2008

By VIKRAM DAVID AMAR Aug. 29, 2008

In about a month, the Supreme Court will begin hearing arguments for its 2008-2009 Term. And although, as in recent years, the number of cases slated for full review is down from late-Twentieth-Century norms, there are a number of potentially quite significant cases being heard. In this column, I will preview one case that is scheduled to be argued during the Court’s first week back in session in October – Herring v. United States. 

Herring is important because it implicates two recurring and hugely important constitutional doctrines. The first is the exclusionary rule in Fourth Amendment cases (which embodies the idea that evidence obtained improperly by the police should not be used at trial, even if it is very relevant to the question of guilt). The second is the command of stare decisis (the notion that the Court ought generally to follow its own past rulings.) 

The Facts of Herring  

The facts of Herring are relatively straightforward. When Bennie Dean Herring was present at the Coffee County, Alabama, Sheriff’s Department collecting some belongings, a County investigator asked his Department’s warrant clerk if there were any outstanding arrest warrants on Mr. Herring. When the clerk said there were not, the investigator asked her to check with a neighboring county to see if it had any outstanding warrants on Herring. The warrant clerk from neighboring Dale County replied that there was indeed one outstanding warrant for Mr. Herring, for failure to appear for a felony charge. 

Based on this information, the Coffee County investigator arrested Mr. Herring in his vehicle, and conducted a search of Herring and his truck pursuant to the arrest, turning up methamphetamine and a pistol. Shortly thereafter (fewer than ten minutes later), the warrant clerk from the Dale County Sheriff’s Department called back to say she had been in error; in fact, there was no active arrest warrant for Herring. Apparently, the Dale County court had recalled the warrant, but the recall had not been properly recorded in the Dale County Sheriff’s office. 

As a result of the evidence obtained during the search of Herring and his truck, federal authorities prosecuted Herring on federal drug charges, and a federal jury convicted him. The U.S. Court of Appeals for the Eleventh Circuit described the issue on appeal in the following terms: 

The parties agree on the central facts. The Coffee County officers made the arrest and carried out the searches incident to it based on their good faith, reasonable belief that there was an outstanding warrant for Herring in Dale County. They found the drugs and the firearm before learning that the warrant had been recalled. The erroneous information about the warrant resulted from the negligence of someone in the Dale County Sheriff’s Department, and no one in Coffee County contributed to the mistake. The only dispute is whether, under these facts, the exclusionary rule requires suppression of the firearm and drugs. 

The Meaning of Exclusionary Rule Precedent and the Eleventh Circuit’s Affirmance of Herring’s Conviction 

Before the Eleventh Circuit, the federal government leaned heavily on Arizona v. Evans, a 1995 Supreme Court ruling in which the Justices held that the exclusionary rule does not apply to circumstances in which officers rely in good faith on a court employee’s representation that a valid arrest warrant exists, when in fact the warrant has already been quashed. However, the Eleventh Circuit rejected this argument – quipping that the government’s effort to catch Herring red-handed itself relies on a “red herring” reading of Evans. The Eleventh Circuit noted that the

Evans Court

itself explicitly declined to opine whether the ruling there would extend beyond mistakes made by judicial employees, to cover mistakes by law enforcement department employees. Thus, the Eleventh Circuit concluded that the question raised by Herring was a new one, not covered by the ruling in Evans. 

The Eleventh Circuit nonetheless turned to another Supreme Court precedent – United States v. Leon – the 1984 case on which Evans itself had been built. The Eleventh Circuit judges decided under the Leon framework that in Mr. Herring’s case the societal benefits of applying the exclusionary rule, defined largely in terms of deterring police misconduct, did not outweigh the costs that result when probative evidence of a crime is excluded. 

In particular, the Eleventh Circuit noted that the Dale County Sheriff Department’s mistake had been one of negligence, rather than purposeful intent; that the Dale County employees might not be deterred by a sanction imposed in Coffee, rather than Dale, County; and that there were potentially other sanctions – such as employer discipline and possible civil liability — that would operate to induce Dale County employees to be more careful. 

The Supreme Court’s Upcoming Review of the Eleventh Circuit Ruling 

It would seem that the Eleventh Circuit’s application of Supreme Court precedent is, at a minimum, a plausible implementation of exclusionary rule doctrine. The Court has been stressing of late (as in the case of Michigan v. Hudson a few years ago) that the exclusionary rule is harsh medicine of last resort to be used only where its benefits outweigh its costs, and that judges ought to be mindful that there are other devices, such as civil liability, available to create a disincentive to lawlessness on the part of law enforcement officials. 

To be sure, the Eleventh Circuit might have excessively downplayed the possible deterrent effect of applying the exclusionary rule to Mr. Herring’s circumstances. For instance, while the Eleventh Circuit is correct that negligent acts are less likely to be deterred than are intentional police misdeeds (which were absent here), even negligence might be reduced by imposing a sanction (like the exclusionary rule) that has real bite. 

But any quibbles with the Eleventh Circuit’s specific statements would not, by themselves, easily explain the high Court’s grant of review. 

Why, then, did the Court take the case? Perhaps because there appears to be some lower court confusion over the meaning of Evans and other exclusionary rule precedents. Or perhaps because the Court is interested in moving beyond those precedents, to forge new doctrine in this area. Since the Court (unlike lower courts) has the power to revisit and modify or overrule its own precedent, the question here is whether the arguments in favor of stare decisis – the presumption in favor of past rulings – have much force in this area. 

My sometime FindLaw co-author Akhil Amar has suggested in his writings, including in a forthcoming Harvard Law Review essay, that the case for stare decisis in the exclusionary rule setting isn’t particularly strong. I think he is probably right. 

In some contexts, we might stick with doctrines and rulings that don’t square with our deepest understanding of what the Constitution itself means and requires on the ground people have relied upon past rulings, and we don’t want people to be worse off for that reasonable reliance. But what reliance exists in the exclusionary rule setting? It seems incredibly unlikely that any criminal decides to break the law in part because he factors into his risk/reward calculus the possibility that evidence of his crime will be suppressed under the exclusionary rule. As Akhil has pointed out, to state this supposed reliance interest here is to realize how unpersuasive it is. 

On the Court, a number of Justices – such as Justice Scalia — have made clear that they think the exclusionary rule does not follow from the best reading of the Constitution itself. If so, why don’t they simply call for the abolition of the rule entirely, since application of the rule of stare decisis wouldn’t seem particularly apt here? 

It is quite possible that Herring will give us some insight on this larger and very important question. 



Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. 

 

22nd KACDL Annual Criminal Defense Law Conference & Seminar – Nov. 7th. Mark your calendar!!

Friday, August 29th, 2008

November 7, 2008. Horseshoe Southern Indiana Resort & Casino (Near Louisville, Ky.)

Featured Speakers: Jonathan Turley John Wesley Hall, Jr. 

“The zealous defense attorney is the last bastion of liberty –the final barrier between an overreaching government and its citizens.”
Alan M. Dershowitz


“The Best Defense” Liberty’s Last Champions:
Renewing Our Commitment to Protect Basic Constitutional Rights
and Present the Best Defense for the Accused

KACDL
444 Enterprise Drive, Suite B
Somerset, Kentucky 42501
606-677-1687                   859-491-1899
 

kacdl 2000@yahoo.com
22nd KACDL Annual Criminal Defense Law Conference & Seminar Schedule •
  November 7, 2008 • Horseshoe Southern Indiana Resort & Casino 8:00 – 8:30 Registration
8:30 Welcome by Daniel T. Goyette, KACDL President
8:30 – 10:00 “Recent Developments and Case Decisions in the Appellate Courts”
Chief Justice John D. Minton, Jr. and Justice Mary C. Noble, Supreme Court of Kentucky; Chief Judge Sara Walter Combs and Judge Thomas B. Wine, Kentucky Court of Appeals
10:00 – 10:15 Coffee Break and Conversation With the Judges
10:15 – 11:15 “Effective Client Representation in Federal Criminal Cases:
Tips on Succesful Sentencing Advocacy and Useful Advice in Dealing with U.S.
Probation & Parole Officers”
Chief Judge John G. Heyburn, II, United States District Court for the Western District of Kentucky; Mr. Patrick Craig, Chief U.S. Probation Officer, and Ms. Kathryn Jarvis, Deputy Chief U.S. Probation Officer, Western District of Kentucky
11:15 – 12:15 “Kentucky DUI – 2008 Edition”
Judge (ret.) Stanley Billingsley and Wilbur M. Zevely, Esq.
12:15 – 1:15 Lunch — Awards Presentation
1:15 – 2:45 “Murder & Mayhem: The Role of Trials in the American Culture”
Professor Jonathan Turley, The George Washington University Law School
2:45 – 3:00 Break
3:00 – 4:30 “Ethical Considerations in Motion Practice Involving Search and Seizure Issues”
John Wesley Hall, Jr., President, National Association of Criminal Defense Lawyers
4:30 – 5:30 “Meeting the Challenges Currently Confronting the Criminal Defense Bar” Professor Jonathan Turley
5:30 – 7:00 “Meet and Greet” Cocktail Reception (Cash bar)
Immediately following the last presentation, everyone is invited to socialize with colleagues and continue informal discussion of the seminar topics with our speakers. Prof. Turley and Mr. Hall will be present for questions, conversation and photograph opportunities, and their publications will be available for sale with personalized autographs. 

Continuing Legal Education:
Approval is pending for 7.25 hours of continuing legal education
(CLE) credits from the Kentucky Bar Association CLE
Commission, including 1 hour of ethics. Approval for CLE credits
in other states will be applied for upon request.
KACDL is a statewide association of criminal defense advocates
promoting the fair administration of criminal justice, and ensuring
the individual rights of Kentucky citizens accused of a crime.
 

Why You Should Not Miss This Seminar:
This seminar is designed to improve the practice and performance
of criminal defense advocates. The speakers are recognized among
the best in their respective areas of the law. The information and
skills derived from this seminar will enhance your legal knowledge
and ability, and can be put to effective use immediately in the
representation of your clients. Attendees are assured of leaving
the conference better criminal defense advocates than when they
arrived!
:
SEMINAR FACULTY BIOGRAPHIES
 

Judge (Ret.) Stanley Billingsley served as a District Judge in
Carroll, Owen and Grant counties for 19 years, and as Senior Status
Judge assigned to the Circuit Court of Boone County for three and a half
years. He also served as Special Judge for one year in Boone Circuit Court
handling domestic relations cases. During his tenure he was assigned as
a Special Judge on numerous occasions in various Circuit and District
courts. He has the rare record of having served as a Judge in 26 counties.
In 1995 he was selected as the Outstanding Judge by the Kentucky Bar
Association. No other District Judge has ever been given this award. Prior
to being appointed to the bench, he practiced law for 13 years in Louisville
and Northern Kentucky.
 

Judge Billingsley is the co-author of Kentucky Driving Under the
Influence Law, published annually by the West-Thompson Publishing
Group since 1994. He is also Senior Editor of LawReader.com, an online
legal research library, which is used by over one thousand Kentucky
lawyers and numerous County Law Libraries and Public Libraries. For the last five years he has written and published a weekly synopsis of all decisions of the Kentucky Court of Appeals, and a Monthly synopsis of all decisions of the Kentucky Supreme Court. Additionally, he is a member of the Supreme Court Criminal Rules Committee, and served for four years on the Judicial Conduct Commission. He lives in Carrollton, Kentucky. He retired on March 22, 2006. He is a graduate of Western Kentucky University (1968), and University of Kentucky College of Law (1971).
 

Judge Sara Walter Combs is currently serving her 15th year on
the Kentucky Court of Appeals for the First Division of the 7th Judicial
District. Born in Louisville, Kentucky, Judge Combs resides in Powell
County at her farm, Fern Hill, where she and her late husband, the wellknown
and beloved former Governor Bert T. Combs, made their home.
Her background is filled with academic excellence: valedictorian at both
Sacred Heart Academy in Louisville and the University of Louisville
where she obtained a B.A. in French, she was recipient of a Woodrow
Wilson Fellowship and achieved the rank of second in her class at U of L
Law School. Both the College of Arts and Sciences and the Law School of
the University of Louisville honored Judge Combs by naming her among
their Distinguished Alumni.
 

Judge Combs’s professional experience includes teaching at both the high
school and university levels as well as the practice of law. Her range of
experience in the legal profession is quite broad. Initially practicing as an
associate with a sizable law firm in Louisville, she then served as corporate
counsel to an advertising company, practiced closely with her late husband,
and became the sole proprietor of her own small law office in Stanton. She
has brought a diverse range of training and experience to the bench.
She has also made history in a series of firsts. Sara was the
Commonwealth’s first woman to serve on the Supreme Court. She was
elected the Chief Judge of the Court of Appeals in May of 2004, was
the first woman to serve as Chief of an appellate court in Kentucky, and
was the first Chief Judge of the Court of Appeals from the mountains of
Eastern Kentucky.
 

Patrick Craig is a graduate of Western Kentucky and Eastern
Kentucky Universities with Bachelor of Science Degrees in Business
Administration and Corrections Administration, respectively. In
1978 Mr. Craig began his career as a probation officer with the state of
Kentucky, specifically in the Elizabethtown, Kentucky, office. After
10 years of service with the state, Mr. Craig was sworn in as a federal
probation officer in the Western District of Kentucky in March of 1988.
In his 20 years of service in the Western District of Kentucky, Mr. Craig
served from 1988 to 1991 as a presentence writer; from 1991 to 1995 as
the guideline and sentencing specialist; from 1995 to 1999 as a supervising
United States Probation Officer; from 1999 to 2003 as the Deputy Chief
U.S. Probation Officer; and in 2003 was appointed to his current position of
Chief United States Probation Officer for the Western District of Kentucky.
Mr. Craig currently works with the Federal Judicial Center as faculty for
the Executive Team Seminar program, and currently chairs the National
Search and Seizure Working Group for the Office of Probation and Pretrial
Services.
 

John Wesley Hall, Jr., a Little Rock, Ark., criminal defense attorney,
was recently sworn in as the 50th President of the National Association of
Criminal Defense Lawyers (NACDL). NACDL, originally the National
Association of Defense Lawyers in Criminal Cases, was founded in
Chicago in 1958 by a small group of defense lawyers who specialized in
criminal cases and aspired to excellence and professionalism in criminal
practice. Hall previously served as NACDL’s Secretary, Treasurer, Second
and First Vice President and President-Elect, as well as a member of the
organization’s Board of Directors from 1989-1995 and 1997-2003.
A member of the NACDL since 1983 and a life member since 1990, Hall
received the organization’s prestigious Robert C. Heeney Award in 2002
for service to the criminal defense bar. In addition, he was chair of the
NACDL Ethics Advisory Committee from 1990-2005.
As the author of the two-volume treatise Search and Seizure (Lexis Law
Publishing), Hall is the only published Fourth Amendment scholar and
author who actively handles criminal cases. Hall writes on search and
seizure for Lexis Law Publishing and daily at www.fourthamendment.
com, and on trial practice and criminal defense ethics for Thomson-
West law publishing company. He is also the author of Professional
Responsibility in Criminal Defense Practice (Thomson West), Trial
Handbook for Arkansas Lawyers (Thomson West) and numerous journal
articles and monographs. His much-reprinted article “Defensive Defense
Lawyering or Defending the Criminal Defense Lawyer From the Client,”
11 U. Ark Little Rock L.J. 329, won the law school’s “Best Article” award for 1989. He is a frequent contributor to NACDL’s monthly magazine, The Champion.
 

Hall has tried approximately 250 jury trials, handled over 200 appeals,
argued twice before the U.S. Supreme Court, and defended a military
officer accused of war crimes in an international tribunal in Sierra Leone.
He is a frequent speaker and expert witness on criminal defense ethics.
A native of Watertown, N.Y., he received his Bachelor’s in English from
Hendrix College, in Conway, Ark., and his Juris Doctor degree from the
University of Arkansas, Fayetteville, Leflar Law Center, in 1973. He also
attended the University of Arkansas at Little Rock School of Law.
John Wesley Hall, Jr. is a past president of the Arkansas Association of
Criminal Defense Lawyers, an NACDL affiliate. Since 1979, Hall has
worked in private practice at his own firm, the Law Offices of John Wesley
Hall, Jr., P.A. He is a member of the bars of Arkansas, Nevada, New
York, Tennessee, the District of Columbia and the International Criminal
Court, where he also is the only American Lawyer elected by the list of
counsel to the ICC’s Disciplinary Appeals Tribunal.
 

Judge John G. Heyburn, II grew up in Louisville, Kentucky. In
1970 he received his A.B. degree from Harvard University where he
majored in history and received seven varsity letters for participation in
cross country and track. Judge Heyburn received his J.D. degree from the
University of Kentucky in 1976.
From 1976 until his appointment to the bench, Judge Heyburn was
associated with the law firm of Brown, Todd & Heyburn, where he
was a partner at the firm from 1982 through 1992. His legal practice
focused on civil litigation, with an emphasis on problems within the
construction industry. Judge Heyburn was a frequent seminar speaker
on that subject. Judge Heyburn also served as special counsel to then
Jefferson County Judge Executive Mitch McConnell and as counsel for
two citizen commissions established to draft a new governmental charter
for Louisville and Jefferson County.
On March 20, 1992, President Bush nominated Judge Heyburn to the
United States District Court for the Western District of Kentucky.
He was confirmed by the United States Senate in August, 1992. Since
December, 2001, Judge Heyburn has served as Chief Judge of the Western
District of Kentucky. During this time Judge Heyburn served on the
Sixth Circuit Judicial Council and on the Executive Committee of the
Federal Judges Association.
In 1994, Chief Justice Rehnquist appointed Judge Heyburn to serve on
the Budget Committee of the Judicial Conference of the United States. In
January, 1997, the Chief Justice appointed Judge Heyburn as Chair of the
Budget Committee. He served as Chair for eight years, until December,
2004. In that role Judge Heyburn led development of the appropriations
request for the entire federal judiciary. Additionally, he has worked with
the government of the Republic of Ireland as it reformed its justice system
to create a more independent judicial branch.
In June, 2007, Chief Justice Roberts appointed Judge Heyburn as Chair of
the Judicial Panel on Multidistrict Litigation. The Panel decides whether
cases in districts around the country, including many nationwide class
actions, should be consolidated and the appropriate site for consolidation.
 

Kathryn Jarvis earned a B.A. in Sociology from Furman University
in 1990 and a Masters in Social Work as well as a Certificate in Theology
from the Southern Baptist Theological Seminar in 1993. Shortly
thereafter she was hired as a U.S. Probation Officer in the Western
District of Kentucky. For the first 6 years of her career (1993-1999),
Kathryn primarily wrote presentence reports. In 1999 she was promoted
to Supervisor, and in 2003 was promoted to Deputy Chief. Kathryn also
serves as faculty for the Federal Judicial Center’s leadership development
programs for experienced supervisors and for newly promoted Deputy
Chiefs.
 

Chief Justice John D. Minton, Jr. was sworn in as the fifth chief
justice of Kentucky on June 27, 2008, after serving two years as a justice
on the Supreme Court. He succeeds Chief Justice Joseph E. Lambert.
In November 2006, Chief Justice Minton was elected to an eight-year
term on the Supreme Court of Kentucky after running unopposed in
the 2nd Supreme Court District, which is comprised of 14 counties in
western Kentucky. He first joined the Supreme Court in July 2006 when
then-Gov. Ernie Fletcher appointed him to fill the unexpired term created
by the June 30, 2006, retirement of Justice William S. Cooper. Before
sitting on the Supreme Court, Chief Justice Minton had been a judge on
the Kentucky Court of Appeals, the state’s intermediate appellate court,
since November 2003.
Chief Justice Minton came to the appellate bench from the trial court.
He was judge of the Warren Circuit Court from 1992 to 2003. In
addition to his trial court duties, he also served by special appointment
of the late Chief Justice Robert F. Stephens and then-Chief Justice
Joseph E. Lambert as chief regional judge of the Green River Region, an
administrative post assisting the chief justice with assigning special judges
in a 21-county area of south central Kentucky.
While on the Circuit Court bench, Chief Justice Minton was recognized
for his leadership in forming Warren County Drug Court and for his
commitment to law-related education programs. In 2003, the Kentucky
Bar Association honored him with it Outstanding Judge Award. Chief
Justice Minton was actively involved in continuing judicial education as a
longtime member of the Education Committee of the Kentucky Circuit
Judges Association.
Prior to his election to the circuit bench, Chief Justice Minton engaged in
the private practice of law in Bowling Green, Kentucky, for more than 15
years. He graduated from the University of Kentucky College of Law in
1977 and was admitted to the Kentucky bar that same year. He earned
his bachelor’s degree with honors from Western Kentucky University in
1974 and is a 1970 graduate of Western’s University High School.
 

Justice Mary C. Noble was elected to the Supreme Court of Kentucky in November
2006 to serve the 5th Supreme Court District. Justice Noble began her judicial career in 1991 when she was elected circuit judge for Fayette County. She was re-elected to that office in 2000, where she served until her election to the Supreme Court. While on the Circuit Court bench, she served two terms, 1998 to 2002, as chief regional circuit
judge. Justice Noble is one of the founders of Kentucky Drug Courts and
served as a Drug Court judge from 1996 to November 2006. She has
been a member of the National Association of Drug Court Professionals
Congress of State Drug Courts since its inception and has served as its
president. She currently serves on the board of the National Association
of Drug Court Professionals. Justice Noble earned a bachelor’s degree in
1971 and a master’s degree in 1975 from Austin Peay State University in
Clarksville, Tenn. She completed her Juris Doctor at the University of
Kentucky College of Law in 1981. She was in private practice from 1981
to 1991 and served as domestic relations commissioner from 1989 to 1991
before being elected circuit judge. Justice Noble was born in Jackson, Ky.,
in 1949. She and her husband Larry Noble, live in Lexington.
 

Jonathan Turley is a nationally recognized legal scholar who has
written extensively in areas ranging from constitutional law to legal
theory to tort law. He has written over three dozen academic articles
that have appeared in a variety of leading law journals at Cornell, Duke,
Georgetown, Harvard, Northwestern, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George
Washington faculty in 1990 and, in 1998, was given the prestigious
Shapiro Chair for Public Interest Law, the youngest chaired professor in
the school’s history. In addition to his extensive publications, Professor
Turley has served as counsel in some of the most notable cases in the last
two decades ranging, representing whistleblowers, military personnel,
and a wide range of other clients. These include his representation of
the Area 51 workers at a secret air base in Nevada; the nuclear couriers
at Oak Ridge, Tennessee; the Rocky Flats grand jury in Colorado; Dr.
Eric Foretich, the husband in the famous Elizabeth Morgan custody
controversy; and four former United States Attorneys General during
the Clinton impeachment litigation. Professor Turley has also served as
counsel in a variety of national security cases, including espionage cases
like that of Jim Nicholson, the highest ranking CIA officer ever accused
of espionage. Turley also served as lead defense counsel in the successful
defense of Petty Officer Daniel King, who faced the death penalty for
alleged spying for Russia. Turley also served as defense counsel in the
case of Dr. Tom Butler, who is facing criminal charges dealing with the
importation and handling of thirty vials of plague in Texas. He also served
as counsel to Larry Hanauer, the House Intelligence Committee staffer
accused of leaking a classified Presidential National Intelligence Estimate
to the New York Times. (Hanauer was cleared of all allegations).
Among his current cases, Professor Turley represents Dr. Ali Al-Timimi,
who was convicted in Virginia in 2005 of violent speech against the United
States. He also represents Dr. Sami Al-Arian, accused of being the American
leader of a terrorist organization while he was a university professor in Florida.
Turley has served as a consultant on homeland security and constitutional
issues, including the Florida House of Representatives.
Professor Turley is a frequent witness before the House and Senate on
constitutional and statutory issues as well as tort reform legislation.
Professor Turley is also a nationally recognized legal commentator.
Professor Turley was ranked as 38th in the top 100 most cited “public
intellectuals” in the recent study by Judge Richard Posner. Turley was also
found to be the second most cited law professor in the country. In 2008,
he was ranked in a study of the nation’s top 500 lawyers – one of only a
handful of academics. In prior years, he was ranked as one of the nation’s
top ten lawyers in military law cases as well as one of the top 40 lawyers
under 40.
Professor Turley’s articles on legal and policy issues appear regularly in
national publications with over 500 articles in such newspapers as the
New York Times, Washington Post, USA Today, Los Angeles Times and
Wall Street Journal. He is on the Board of Contributors of USA Today. In
2005, Turley was given the Columnist of the Year award for Single-Issue
Advocacy for his columns on civil liberties by the Aspen Institute and the
Week Magazine. Professor Turley also appears regularly as a legal expert
on all of the major television networks, and is often a guest on the Sunday
talk shows with over two-dozen appearances on Meet the Press, ABC
This Week, Face the Nation, and Fox Sunday. Professor Turley teaches
courses on constitutional law, constitutional criminal law, environmental
law, litigation, and torts. He is the founder and executive director of the
Project for Older Prisoners (POPS).
Professor Turley received his B.A. at the University of Chicago and his
J.D. at Northwestern. (In 2008, he was given an honorary Doctorate of
Law from John Marshall Law School for his contributions to civil liberties
and the public interest).
Kentucky Court of Appeals, Fourth Judicial District. He was appointed
to that position in August 2006 and elected to a full eight year term in
November 2006. Previously he served for nearly 15 years as a trial judge
in the Jefferson County Circuit Courts. During that time he was elected
to serve as Chief Judge of the Circuit Court. He has lectured at various
seminars presented by the Kentucky and Louisville Bar Associations.
Prior to serving as a judge, he was engaged in the private practice of law,
representing clients in both Circuit and District Courts in criminal
matters as well as civil and domestic cases.
Previously, from October 1980 until December 1990, he served as a
prosecutor in the Jefferson County Commonwealth’s Attorney Office,
as well as the Kentucky Office of Attorney General. Responsibilities
included prosecuting jury trials, conducting investigations and supervising
staff attorneys and support staff.
Judge Wine is a member of the American, Kentucky and Louisville Bar
Associations. He is also a member of the Louis D. Brandeis, American
Inns of Court and has served as President of the Inn. In 1982 he was
nominated as Prosecutor of the Year by his fellow prosecutors in the
Commonwealth’s Attorney office and in 1997, the Louisville Bar
Association selected him as Judge of the Year. He graduated from the
University of Louisville, undergraduate studies, and the Brandeis School
of Law.
 

Wilbur M. Zevely, a partner in the Florence, Kentucky law firm
of Buswald, Funk, & Zevely, P.S.C., has practiced law since 1972,
concentrating on DUI jury trials in counties throughout Kentucky and
in Southern Ohio. Mr. Zevely received his B.S. from the University of
Cincinnati in 1968, and his J.D. from the Salmon P. Chase School of Law
at Northern Kentucky University in 1972. Prior to entering the practice
of law, he worked as a chemist for the Monsanto Company, under contract
with the U.S. Atomic Energy Commission.
For many years, Mr. Zevely has lectured on DUI issues for the Kentucky
Association of Criminal Defense Lawyers (KACDL), the Kentucky
Bar Association, and the Judicial College for Kentucky District Court
Judges. He has served as a Director and Treasurer of KACDL. Mr.
Zevely also is a member of the Kentucky Bar Association, the Cincinnati
Bar Association, and the Greater Cincinnati Criminal Defense Lawyer’s
Association.
Mr. Zevely is the co-author of Kentucky Driving Under the Influence
Law, published annually by West-Thompson Publishing Group since
1994.
 

“An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means – to protect that client at all hazards and costs to all others, and among others to himself, — is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the
destruction which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client’s protection.” —Henry Brougham, British Barrister (1820

Alaska Governor Sarah Palin named McCain Vice-President.

Friday, August 29th, 2008

John McCain has named Alaska Governor Sarah Palin as his Vice-Presidential running mate. Palin is an attractive 44 year old having been first runner up in the Miss Alaska contest in 1984. She is a first term Governor without foreign policy experience. 

 

 

 The state legislature recently voted $100,000 to investigate her firing of a state employee.  She has been Governor for 18 months.

 

 Sarah Palin 

 



11th Governor of Alaska 

Incumbent 

Assumed office 
December 4, 2006 

Lieutenant 

Sean Parnell 

Preceded by 

Frank Murkowski 



Born 

February 11 1964 ( 1964-02-11) (age 44)
Sandpoint, Idaho 

Political party 

Republican 

Spouse 

Todd Palin 

Residence 

Wasilla, Alaska 

Alma mater 

University of Idaho 

Profession 

Journalist 

Religion 

Protestant 

Sarah Louise Heath Palin (born February 11, 1964) is the current Governor of Alaska, and the presumptive 2008 Republican candidate for Vice President of the United States.[1] She is expected to be the second female Vice Presidential candidate representing a major American political party (the first was Geraldine Ferraro). After being selected as the runner up in the 1984 Miss Alaska contest, Palin served two terms on the Wasilla, Alaska City Council from 1992 to 1996, was elected mayor of Wasilla in 1996, and ran unsuccessfully for Lieutenant Governor in 2002. 

After charging ethical violations by state Republican Party leaders,[2] she won election in 2006 by first defeating the incumbent governor in the Republican primary, then a former Democratic Alaskan governor in the general election. 

Contents 

  • 4 2008 Vice-presidential candidacy 

  • 5 Electoral history 

  • 6 References 

  • 7 External links 

  • Family and personal background 

    Palin was born in Sandpoint, Idaho, the daughter of Charles and Sally (Sheeran) Heath.[3] Her family moved to Alaska when she was an infant.[4] Charles Heath was a popular science teacher and coached track.[4] The Heaths were avid outdoors enthusiasts; Sarah and her father would sometimes wake at 3 a.m. to hunt moose before school, and the family would regularly run 5k and 10k races.[4] 

    Palin was the point guard and captain for the Wasilla High School Warriors, in Wasilla, Alaska, when they won the Alaska small-school basketball championship in 1982; she earned the nickname “Sarah Barracuda” because of her intense play.[4] She played the championship game despite a stress fracture in her ankle, hitting a critical free throw in the last seconds.[4] Palin, who was also the head of the school Fellowship of Christian Athletes, would lead the team in prayer before games.[4] 

    In 1984, after winning the Miss Wasilla contest earlier that year, Palin finished second in the Miss Alaska beauty pageant which won her a scholarship to help pay her way through college.[4] In the Wasilla pageant, she played the flute and also won Miss Congeniality

    Palin holds a bachelor’s degree in journalism from the University of Idaho where she also minored in politics. 

    Her husband, Todd, is a Native Yup’ik Eskimo.[4] Outside the fishing season, Todd works for BP at an oil field on the North Slope[5] and is a champion snowmobiler, winning the 2000-mile “Iron Dog” race four times.[4] The two eloped shortly after Palin graduated college; when they learned they needed witnesses for the civil ceremony, they recruited two residents from the old-age home down the street.[4] The Palin family lives in Wasilla, about 40 miles (64 km) north of Anchorage.[6] 

    She briefly worked as a sports reporter for local Anchorage television stations while also working as a commercial fisherman with her husband, Todd, her high school sweetheart.[4] One summer when she was working on Todd’s fishing boat, the boat collided with a tender while she was holding onto the railing; Palin broke several fingers.[4] 

    On September 11, 2007, the Palins’ eighteen-year-old son Track, eldest of five, joined the Army.[6] He now serves in an infantry brigade and will be deployed to Iraq in September. She also has three daughters: Bristol, 17, Willow, 13, and Piper, 7.[7] On April 18, 2008, Palin gave birth to her second son, Trig Paxson Van Palin, who has Down syndrome.[8] She returned to the office three days after giving birth.[9] Palin refused to let the results of prenatal genetic testing change her decision to have the baby. “I’m looking at him right now, and I see perfection,” Palin said. “Yeah, he has an extra chromosome. I keep thinking, in our world, what is normal and what is perfect?”[9] 

    Details of Palin’s personal life have contributed to her political image. She hunts, eats moose hamburger, ice fishes, rides snowmobiles, and owns a float plane.[10][11] Palin holds a lifetime membership with the National Rifle Association. She admits that she used marijuana when it was legal in Alaska, but says that she did not like it.[12] 

    Pre-gubernatorial political experience 

    Palin served two terms on the Wasilla City Council from 1992 to 1996. In 1996, she challenged the incumbent mayor, criticizing wasteful spending and high taxes.[4] The ex-mayor and sheriff tried to organize a recall campaign, but failed.[4] Palin kept her campaign promises, reducing her own salary, as well as reducing property taxes by 60%.[4] She ran for reelection against the former mayor in 1999, winning by an even larger margin.[4][13] Palin was also elected president of the Alaska Conference of Mayors.[7] 

    In 2002, Palin made an unsuccessful bid for Lieutenant Governor, coming in second to Loren Leman in a four-way race. After Frank Murkowski resigned from his long-held U.S. Senate seat in mid-term to become governor, Palin interviewed to be his possible successor. Instead, Murkowski appointed his daughter, then-Alaska State Representative Lisa Murkowski.[4] 

    Governor Murkowski appointed Palin Ethics Commissioner of the Alaska Oil and Gas Conservation Commission,[14] where she served from 2003 to 2004 until resigning in protest over what she called the “lack of ethics” of fellow Alaskan Republican leaders, who ignored her whistleblowing complaints of legal violations and conflicts of interest.[4] After she resigned, she exposed the state Republican party’s chairman, Randy Ruedrich, one of her fellow Oil & Gas commissioners, who was accused of doing work for the party on public time, and supplying a lobbyist with a sensitive e-mail.[15] Palin filed formal complaints against both Ruedrich and former Alaska Attorney General Gregg Renkes, who both resigned; Ruedrich paid a record $12,000 fine.[4] 

    Governorship 

    In 2006, Palin, running on a clean-government campaign, executed an upset victory over then-Gov. Murkowski in the Republican gubernatorial primary.[4] Despite the lack of support from party leaders and being outspent by her Democratic opponent, she went on to win the general election in November 2006, defeating former Governor Tony Knowles.[4] Palin said in 2006 that education, public safety, and transportation would be three cornerstones of her administration.[12] 

    When elected, Palin became the first woman to be Alaska’s governor, and the youngest governor in Alaskan history at 42 years old upon taking office. Palin was also the first Alaskan governor born after Alaska achieved U.S. statehood. She was also the first Alaskan governor not to be inaugurated in Juneau, instead choosing to hold her inauguration ceremony in Fairbanks. She took office on December 4, 2006. 

    Highlights of Governor Palin’s tenure include a successful push for an ethics bill, and also shelving pork-barrel projects supported by fellow Republicans. Palin successfully killed the Bridge to Nowhere project that had become a nationwide symbol of wasteful earmark spending.[9][16] “Alaska needs to be self-sufficient, she says, instead of relying heavily on ‘federal dollars,’ as the state does today.”[10] 

    She has challenged the state’s Republican leaders, helping to launch a campaign by Lieutenant Governor Sean Parnell to unseat U.S. Congressman Don Young[17] and publicly challenging Senator Ted Stevens to come clean about the federal investigation into his financial dealings.[9] Fred Barnes of The Weekly Standard praised Palin as a “politician of eye-popping integrity” and referred to her rise as “a great (and rare) story of how adherence to principle—especially to transparency and accountability in government—can produce political success.”[10] 

    In 2007, Palin had an approval rating often in the 90s.[10] A poll published by Hays Research on July 28, 2008 showed Palin’s approval rating at 80%.[18] 

    Energy policies 

    Palin’s tenure is noted for her independence from big oil companies, while still promoting resource development.[10][9] Palin has announced plans to create a new sub-cabinet group of advisors, to address climate change and reduce greenhouse gas emissions within Alaska.[19] 

    Shortly after taking office, Palin rescinded an appointment by Murkowski of his former chief of staff Jim Clark to the Alaska Natural Gas Development Authority, one of thirty-five appointments made by Murkowski in the last hour of his administration that she reversed.[20][21] Clark later pled guilty to conspiring with a defunct oil-field-services company to channel money into Frank Murkowski’s re-election campaign.[22] 

    In March 2007, Palin presented the Alaska Gasline Inducement Act (AGIA) as the new legal vehicle for building a natural gas pipeline from the state’s North Slope.[23] Only one legislator, Representative Ralph Samuels, voted against the measure,[24] and in June Palin signed it into law.[25][26] On January 5, 2008, Palin announced that a Canadian company, Transcanada, was the sole AGIA-compliant applicant.[27][28] 

    In response to high oil and gas prices, and in response to the resulting state government budget surplus, Palin proposed giving Alaskans $100-a-month energy debit cards. She also proposed providing grants to electrical utilities so that they would reduce customers’ rates.[29] She subsequently dropped the debit card proposal, and in its place she proposed to send Alaskans $1,200 directly and eliminate the gas tax.[30][31] 

    Social issues 

    Palin is strongly pro-life and belongs to Feminists for Life.[12] 

    She opposes same-sex marriage, but she has stated that she has gay friends and is receptive to gay and lesbian concerns about discrimination.[12] While the previous administration did not implement same-sex benefits, Palin complied with a state Supreme Court order and signed them into law.[32] She supported a democratic advisory vote from the public on whether there should be a constitutional amendment on the matter.[33] Alaska was one of the first U.S. states to pass a constitutional ban on gay marriage, in 1998, along with Hawaii.[34] 

    Palin’s first veto was used to block legislation that would have barred the state from granting benefits to the partners of gay state employees. In effect, her veto granted State of Alaska benefits to same-sex couples. The veto occurred after Palin consulted with Alaska’s attorney general on the constitutionality of the legislation.[35] 

    Matanuska Maid Dairy closure 

    When the Alaska Creamery Board recommended closing Matanuska Maid Dairy, an unprofitable state-owned business, Palin objected, citing concern for the impact on dairy farmers and the fact that the Dairy had just received $600,000 in state money. When Palin learned that only the Board of Agriculture and Conservation could appoint Creamery Board members, she simply replaced the entire membership of the Board of Agriculture and Conservation.[10][36] The new board, led by businesswoman Kristan Cole, reversed the decision to close.[36] The new board approved milk price increases offered by the dairy in an attempt to control fiscal losses, even though milk from Washington was already offered in Alaskan stores at lower prices.[37] In the end, the dairy was forced to close, and the state tried to sell the assets to pay off its debts but received no bids.[38][39] 

    Budget 

    In the first days of her administration, Palin followed through on a campaign promise to sell the Westwind II jet purchased (on a state government credit account) by the Murkowski administration. The state placed the jet for sale on eBay three times. In August 2007, the jet was sold for $2.7 million.[40] 

    Shortly after becoming governor, Palin canceled an 11-mile (18-kilometer) gravel road outside of Juneau to a mine. This reversed a decision made in the closing days or hours of the Murkowski Administration.[41] 

    In June 2007, Palin signed into law the largest operating budget in Alaska’s history ($6.6 billion).[42] At the same time, she used her veto power to make the second-largest cuts of the construction budget in state history. The US$237 million in cuts represented over 300 local projects, and reduced the construction budget to nearly US$1.6 billion.[43] 

    Commissioner dismissal 

    On July 11, 2008, Governor Palin dismissed Walter Monegan as Commissioner of Public Safety and instead offered him a position as executive director of the state Alcoholic Beverage Control Board, which he subsequently turned down.[44][45] Monegan alleged shortly after his dismissal that it may have been partly due to his reluctance to fire an Alaska State Trooper, Mike Wooten, who had been involved in a divorce and child custody battle with Palin’s sister, Molly McCann.[46] In 2006, before Palin was governor, Wooten was briefly suspended for ten days for threatening to kill McCann’s (and Palin’s) father, tasering his 11-year-old stepson, and violating game laws. After a union protest, the suspension was reduced to five days.[47] 

    Governor Palin asserts that her dismissal of Monegan was unrelated to the fact that he had not fired Wooten, and asserts that Monegan was instead dismissed for not adequately filling state trooper vacancies, and because he “did not turn out to be a team player on budgeting issues.”[48] Palin acknowledges that a member of her administration, Frank Bailey, did contact the Department of Public Safety regarding Wooten, but both Palin and Bailey say that happened without her knowledge and was unrelated to her dismissal of Monegan.[48] Bailey was put on leave for two months for acting outside the scope of his authority as the Director of Boards and Commissions. 

    In response to Palin’s statement that she had nothing to hide, in August 2008 the Alaska Legislature hired Steve Branchflower to investigate Palin and her staff for possible abuse of power surrounding the dismissal, though lawmakers acknowledge that “Monegan and other commissioners serve at will, meaning they can be fired by Palin at any time.”[49] The investigation is being overseen by Democratic State Senator Hollis French, who says that the Palin administration has been cooperating and thus subpoenas are unnecessary.[50] The Palin administration itself was the first to release an audiotape of Bailey making inquiries about the status of the Wooten investigation.[48][51] 

    Wooten and the police union alleged that the governor had improperly released his employment files in his divorce case. However, McCann’s attorney released a signed waiver from Wooten demonstrating that Wooten had authorized the release of his files through normal discovery procedures.[52][53] 

    2008 Vice-presidential candidacy 

    On August 29, 2008 it was reported that Palin was chosen as John McCain‘s running mate.[54] 

     

     

    References 

    1. ^McCain picks Alaska governor as running mate” (2008-08-29). Retrieved on 2008-08-29.  
    2. ^ Kizzia, Tom (October 24, 2006). “Part 2: Rebel status has fueled front-runner’s success“. Anchorage Daily News. 

    3. ^ Ancestry of Sarah Palin by Robert Battle. Accessed 2008-08-26

    4. ^ a b c d e f g h i j k l m n o p q r s t u Johnson, Kaylene (2008). “Sarah: How a Hockey Mom Turned Alaska’s Political Establishment Upside Down”. Epicenter Press.  
    5. ^ Ross, Mike (August 21, 2007). “Mr. Palin goes back to Prudhoe“, KTUU-TV. Retrieved on 2008-07-19.  
    6. ^ a b Associated Press (September 13, 2007). “Alaska Gov.’s Son Enlists in Army“, WTOPNews.com, WTOP-FM. Retrieved on 2007-12-27.  
    7. ^ a b“About the Governor”“. Biography. State of Alaska. Retrieved on 2007-12-27

    8. ^ Alaska Superstation 

    9. ^ a b c d e Quinn, Steve (2007-05-10). “Alaska governor balances newborn’s needs, official duties“. Associated Press. 

    10. ^ a b c d e f Barnes, Fred (July 16, 2007). “The Most Popular Governor“, The Weekly Standard. Retrieved on 2007-12-27.  
    11. ^ Arnold, Elizabeth. “Alaska’s Governor Is Tough, Young — and a Woman“, NPR.org, National Public Radio. Retrieved on 2007-12-27.  
    12. ^ a b c d Hopkins, Kyle (August 6, 2006). “Same-sex unions, drugs get little play“, Anchorage Daily News. Retrieved on 2007-12-27.  
    13. ^ 2006 Campaign Tip Sheets: Alaska Governor 

    14. ^ Alaska Oil and Gas Conservation Commission – Homepage (Redirect) 

    15. ^ adn.com | front : Palin explains her actions in Ruedrich case 

    16. ^ “‘Bridge to nowhere’ abandoned”, Associated Press via CNN 2007-09-22

    17. ^ Carlton, Jim. “Alaska’s Palin Faces Probe” (2008-07-31). 

    18. ^ Alaska Statewide ‘Opinion Counts’ Survey Results, www.haysresearch.com. Retrieved on 2008-07-29 

    19. ^ Kizzia, Tom (April 12, 2007). “State aims to reduce emissions“, Anchorage Daily News. Retrieved on 2007-12-27.  
    20. ^Palin Sacks Murkowski Crony Clark“, Alaska Report (December 7, 2006). Retrieved on 2007-12-27.  
    21. ^ Sutton, Anne (2006-12-06). “Palin to examine last-hour job blitz”, Associated Press.  
    22. ^ Richard, Mauer; Sean Cockerham (2008-03-05). “Murkowski staff chief pleads guilty“, Anchorage Daily News, The McClatchy Company. Retrieved on 2008-04-19.  
    23. ^“Governor Palin Unveils the AGIA”“. News & Announcements. State of Alaska (March 2, 2007). Retrieved on 2007-12-27

    24. ^“Palin to sign gas pipeline plan today”“. News & Announcements. Alaska Legislature (June 6, 2007). Retrieved on 2008-02-26

    25. ^“Gov. Performs Ceremonial Signing of AGIA”“. News & Announcements. State of Alaska (June 7, 2007). Retrieved on 2007-12-27

    26. ^“Bill History/Action for 25th Legislature: HB 177″“. BASIS. Alaska State Legislature (June 7, 2007). Retrieved on 2007-12-27

    27. ^ Palin picks Canadian company for gas line: Gas Pipeline | adn.com 

    28. ^ KTUU.com | Alaska’s news and information source | Canadian company meets AGIA requirements 

    29. ^ Cockerham, Sean. “Palin wants to give Alaskans $100 a month to use on energy”, Anchorage Daily News (2008-05-16). 

    30. ^ Cockerham, Sean.“Palin expected to drop energy debit card plan”, Anchorage Daily News (2008-06-18). 

    31. ^ http://www.ibdeditorials.com/IBDArticles.aspx?id=300668510518137 

    32. ^ McAllister, Bill (December 20, 2006). “Gay partners of state employees win benefits“, KTUU News, KTUU-TV. Retrieved on 2007-12-27.  
    33. ^ Demer, Lisa (December 21, 2006). “Palin to comply on same-sex ruling“, Anchorage Daily News. Retrieved on 2007-12-27.  
    34. ^ Vestal, Christine (March 1, 2007 (updateSeptember d 20, 2007)). “Gay marriage decisions ripe in 2 courts“, Stateline.org. Retrieved on 2007-12-27.  
    35. ^Alaska governor won’t block partner benefits“, Gay.com (December 29, 2006). Retrieved on 2008-07-31.  
    36. ^ a b Komarnitsky, S. J. (July 4, 2007). “State board votes to replace Mat Maid CEO“, Anchorage Daily News. Retrieved on 2008-01-06.  
    37. ^ Komarnitsky, S. J. (July 10, 2007). “Creamery Board approves milk price increase for dairy farmers“, Anchorage Daily News. Retrieved on 2008-01-06.  
    38. ^ Komarnitsky, S. J. (August 30, 2007). “State to put Mat Maid dairy up for sale“, Anchorage Daily News.  
    39. ^State gets no bids for Matanuska Maid“, Anchorage Daily News (December 8, 2007). Retrieved on 2008-01-06.  
    40. ^“Jet That Helped Defeat an Alaska Governor Is Sold”“. The New York Times (August 25, 2007). Retrieved on 2008-08-06

    41. ^ KTUU.com | Alaska’s news and information source | Palin cancels contracts for pioneer road to Juneau 

    42. ^ Shinohara, Rosemary (July 16, 2007). “No vetoes here“, Anchorage Daily News. Retrieved on 2007-12-27.  
    43. ^ http://www.alaskajournal.com/stories/070807/hom_20070708005.shtml 

    44. ^ Resources from Anchorage Daily News regarding the Monegan affair

    45. ^ Hopkins, Kyle (2008-07-12). “Governor offered Monegan a different job“, Anchorage Daily News, The McClatchy Company. Retrieved on 2008-08-21.  
    46. ^ Hollan, Megan (2008-07-19). “Monegan says he was pressured to fire cop“, Anchorage Daily News, The McClatchy Company. Retrieved on 2008-07-22. : “Monegan said he still isn’t sure why he was fired but thought that Wooten could be part of it.” 
    47. ^ Demer, Lisa. Is Wooten a good trooper?, Anchorage Daily News (2008-07-27). 

    48. ^ a b c Cockerham, Sean. “Palin staff pushed to have trooper fired”, Anchorage Daily News (2008-08-14). Retrieved 2008-08-24

    49. ^ Quinn, Steve. “Lawmakers formally call for investigation into Palin’s Public Safety firing”, Associated Press via Daily News-Miner (2008-07-28). Retrieved 2008-08-24

    50. ^ “Subpoenas uncalled for in Wooten matter”, Anchorage Daily News (2008-08-16). Retrieved 2008-08-24

    51. ^ Palin press release with audio of Bailey call 

    52. ^ http://gov.state.ak.us/pdf/pr_08122_doc1.pdf 

    53. ^ http://gov.state.ak.us/pdf/pr_08122_doc_2.pdf 

    54. ^ “McCain picks Alaska Gov. Palin as running mate” CNN.com, August 29, 2008 

    55. ^“State of Alaska Primary Election – August 27, 2002: Official Results”“. Division of Elections. The Office of Lieutenant Governor Sean Parnell (September 18, 2002). Retrieved on 2007-12-27

    External links 

     

    Wikimedia Commons has media related to: 

    Sarah Palin 

     

     

    McCain names Alaska Governor Sarah Palin as his Vice-Presidential candidate

    Friday, August 29th, 2008

    Attorney General Jack Conway issued a warning today about a scam targeting immigrants in Kentucky.

    Thursday, August 28th, 2008

     

    Investigators report that a man, claiming to be a “notario” or notary, has approached immigrants in two counties saying that he will assist them in obtaining their I-130’s or “green cards” in exchange for cash. Forty-nine-year-old Ronald M. Alvarez, has reportedly received several thousand dollars for services he never provides before he disappears.

     

    Alvarez has been indicted in Warren and Nelson counties on two counts of theft by deception of more than $300.

     

    If you have information about Alvarez or his whereabouts, please contact the Nelson County Sheriff’s Office at (502) 348-1870.

    Executive privilege showdown looms for Congress, White House

    Thursday, August 28th, 2008

     

     House Democrats schedule a hearing that would put former White House counsel Harriet Miers under oath. The Justice Department prepares a last-ditch court appeal. 

     

    By Richard B. Schmitt, Los Angeles Times
    August 28, 2008 

    WASHINGTON — Congress and the Bush administration headed for a preelection showdown Wednesday over the issue of executive privilege, with House Democrats scheduling a hearing that would put a key former administration figure under oath and the Justice Department mapping a last-ditch court appeal.

    Justice lawyers said they would go to court as soon as today to block a ruling by U.S. District Judge John D. Bates that forces the White House to cooperate with a congressional investigation into the politically charged firing of nine U.S. attorneys in 2006. 

    The move came as Democrats pushed ahead with that investigation. Rep. John Conyers Jr. (D-Mich.), the chairman of the House Judiciary Committee, announced that he was calling former White House counsel Harriet E. Miers to appear before the committee on Sept. 11 to answer questions about her role in the firings.

    Conyers also set a Sept. 4 deadline for the administration to turn over White House documents concerning the firings as well as a log detailing what documents it was withholding because of security concerns and why.

    Legal experts said they doubted that the Justice Department would succeed in persuading the federal appeals court in Washington to intervene in the matter at this point. But it was also unclear what questions Miers would choose to answer if she took the witness chair next month, and that raised the possibility of further legal wrangling. 

    Experts said the tug-of-war also seemed unlikely to be resolved before January, when the subpoenas legally expire. That would confront the new Congress with the decision whether to renew the battle.

    “It is an unpredictable game at this point,” said Charles Tiefer, a former House counsel who is a professor at the University of Baltimore law school. “The Congress could win or the White House could drag it out.”

    The rapid-fire series of events was triggered by an order by Bates on Tuesday in which he declined to put on hold a July 31 ruling in which he held that the refusal of the administration to cooperate in the U.S. attorney investigation was legally untenable.

    Bates had ruled that the administration’s position that it had “absolute immunity” from being forced to honor subpoenas issued by Congress was unprecedented. He said Miers was obliged to at least show up — but did not rule on which questions she would be required to answer.

    Justice Department lawyers told Bates at a hearing Wednesday that they intended to ask the appeals court to overrule the judge. Justice Department lawyer Carl Nichols indicated the government would file court papers to that effect no later than today.

    Investigators are trying to determine whether Miers and Karl Rove, Bush’s former chief political advisor, were involved in the 2006 firings. Democrats have alleged that the prosecutors were singled out for failing to bring corruption and other cases that benefited Republicans and that the idea was hatched at the White House. Rove has also refused to appear before the House and Senate Judiciary committees and has been held in contempt by both panels.

    The Justice Department has argued that the former Bush aides are immune from having to testify because of the doctrine of executive privilege, which is grounded in the principle of separation of powers and is intended to insulate presidential policymaking decisions.

    Officials have also argued that, because U.S. attorneys are presidential appointees, Congress has no authority to question executive-branch advisors about decisions to fire them.

    The Justice Department effort to block the lower-court ruling would be considered by a three-judge panel that is randomly assigned to hear emergency appeals. The federal appeals court here, whose alumni include Chief Justice John G. Roberts Jr. and Supreme Court Associate Justice Antonin Scalia, has a generally conservative reputation.

    If the appeals court blocks Miers’ testimony, even temporarily, it could allow the Bush administration to drag out the proceedings until after the election.

    But several legal scholars said they doubted that even a conservative panel would intervene. Bates himself was appointed by Bush to the federal bench in 2001, they noted, and he was likely to be shown deference.

    They also said his central ruling appeared to be indisputable.

    “The Supreme Court has never given any indication that the White House counsel or people who work for the president can just ignore a subpoena,” said Cass R. Sunstein, a professor at the University of Chicago law school. “It would be very surprising to think that the White House official does not even have to appear to assert the privilege.” 

     

    Chief Justice Minton forms committee to review policy on court records retention

    Thursday, August 28th, 2008

    Group will hold first meeting Sept. 4 in Frankfort 

    FRANKFORT, Ky., Aug. 27, 2008 ¾ Chief Justice of Kentucky John D. Minton Jr. has formed a committee to review how the Kentucky court system retains, destroys and archives court records statewide. The new Court Records Retention Committee, or CRRC, will hold its first meeting Thursday, Sept. 4, in Frankfort.  

    The CRRC members represent those with an interest in the preservation of court records, including judges, attorneys, circuit court clerks and personnel from the Administrative Office of the Courts. The members are Court of Appeals Judge Thomas B. Wine, who will chair the committee; Jefferson County Family Court Judge Patricia Walker FitzGerald; Senior Judge Roger L. Crittenden; District Judge Brandy O. Brown, who serves Clark and Madison counties; Woodford County Circuit Court Clerk Tricia Kittinger; Fayette County Commonwealth’s Attorney Ray Larson; Fayette County Attorney Larry Roberts; Damon Preston, director of the Trial Division of the Kentucky Department of Public Advocacy; Kevin Smalley, manager of the AOC Division of Clerk Services; Jim Columbia, manager of the AOC Division of Records and Statistics; and Brian Sudduth, supervisor of the AOC Division of Accessioning.  

    “I appreciate Chief Justice Minton for bringing together all of the parties who use court records to figure out a plan for retaining necessary records and destroying those that have little or no value,” said Judge Wine. 

    “Above all,” he said, “this is an exercise in cooperation between the Executive and Judicial branches in carrying out a mandate given by the Legislative Branch. In 1977 the legislature gave the chief justice of Kentucky statutory authority to determine how court records are to be maintained. For 30 years the public has trusted the Supreme Court to carry out this responsibility. We are now asking agencies that use these records to work with the Judicial Branch to decide what to destroy and what to keep.” 

    Judge Wine said the committee will have three goals: “Our first priority is to ensure community safety by keeping the records prosecutors need to effectively prosecute individuals who have committed crimes against the commonwealth. Secondly, people are allowed to seek expungement of their criminal records under certain circumstances and we want the records to be available for them to do that. And finally, we have a fiscal responsibility that requires us to appropriately spend limited state funds.” 

    Based on KRS 26A.200-220, the AOC created a records retention policy in 1977 to address the cost and space involved in housing court records long-term. The policy called for misdemeanor records to be stored for at least five years before being destroyed. The policy was revised in 1996 and 2005. The 2005 amendment protected records that could be used to enhance future felony offenses and allowed the destruction of electronic copies of already purged paper records.  

    The records retention process came to the forefront in late 2006 when the AOC, following current guidelines, destroyed records in Jefferson County. Prosecutors and others called for a change to the records retention policy, maintaining that the destruction of records eliminated information necessary for enhancing the charges of offenders and other significant uses. After a panel recommended changes to the policy, the AOC announced in April 2007 that the destruction of all court records would be halted statewide until the issue could be further reviewed. 

    The AOC is currently storing 33,335 cubic feet of court records at the Kentucky Department for Libraries and Archives in Frankfort at an annual cost of $4.56 per cubic foot, or approximately $152,000 per year. Of that total, 28,482 cubic feet are permanent records that cannot be destroyed under the current guidelines. Also of that total, 5,058 cubic feet of records are those that would have been destroyed under the current guidelines had destruction not been halted in 2007. 

    The AOC is the operational arm of the Kentucky Court of Justice and supports the activities of 4,000 court system employees, including the elected offices of justices, judges and circuit court clerks. The AOC also executes the Judicial Branch budget. 

    Attorney General Conway Names 2008 Outstanding Commonwealth’s and County Attorneys

    Tuesday, August 26th, 2008

     

    Aug. 26, 2008

     

    Attorney General Jack Conway recently presented awards for the 2008 Outstanding Commonwealth’s and County Attorneys at the Kentucky Prosecutor’s Conference last week in Lexington.

     

    The recipients of the 2008 Outstanding Commonwealth’s Attorney awards are David Flatt, Commonwealth’s Attorney for the 37th Judicial Circuit serving Carter, Elliott and Morgan counties, and Allen Trimble, Commonwealth’s Attorney for the 34th Judicial Circuit encompassing McCreary and Whitley counties.

     

    “David has prosecuted hundreds of felony cases and has taken on many high-profile cases, both in his judicial circuit and as a special prosecutor,” General Conway said.

    Upon presenting Trimble’s award General Conway said, “Allen has tried more than 75 homicide cases and obtained the first death-penalty verdict in 50 years in the 34th Circuit.”

     

    The recipients of the 2008 Outstanding County Attorney awards are Brucie Moore, County Attorney for Union County since 1999 and Dan Boaz, County Attorney for McCracken County since 1997.

     

    “Brucie is a friend and a leader when it comes to collecting child support for Kentucky kids,” General Conway said. “She also continues to lead the efforts to pass a drugged driver bill in Kentucky.”

     

    Of Dan Boaz, General Conway stated, “Dan Boaz has taken on tough assignments and handled them in an exceptional manner. When the Lyon County Attorney was indicted in 2004 and someone was needed to handle the prosecutions in that county, Dan took over the duties and carried the extra load to keep the criminal justice system functioning in that neighboring county.”

     

    Click here for pictures from the conference.

     
     

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    The ABA way to pick judges

    Monday, August 25th, 2008

    The American Bar Association.  Aug. 25, 2008

     

    Its idea to establish bipartisan panels of lawyers and others to screen federal judges has merit, even if conservatives hate it.

    August 24, 2008

     

    It sounds like a common-sense idea: Establish bipartisan panels of lawyers and community leaders to screen potential federal judges. Yet a proposal to that effect by the American Bar Assn. is being publicly savaged by conservatives and given short shrift by liberal Democrats.

    Republican presidential candidate John McCain did not endorse the proposal — he ignored it — but conservatives pounced, accusing the ABA of a liberal bias. A Wall Street Journal editorial warned that using such panels to screen nominees “takes the partisan politics out of the public eye and into backrooms stocked with political insiders.”

    Former Senate Majority Leader Tom Daschle, a spokesman for the Barack Obama campaign, declined to comment on whether the Democratic candidate supported the proposal, though he said Obama, if elected, would “consider a lot of options” to reduce the role of partisanship in the selection of judges. Other Democrats, who’ve decried the Bush administration’s penchant for appointing conservatives to the bench, are looking forward to Obama doing the same in reverse.

    The negative reaction is unfortunate because adoption of the ABA proposal would improve the quality of the federal judiciary without infringing on the constitutional prerogatives of the president or the Senate. It even could lead to a truce in the tiresome partisan tit-for-tat in the Senate that has blocked the confirmation of qualified and moderate judicial nominees, a development the next president should welcome, regardless of who he is. The idea of less strife over judges might even appeal to congressional leaders once the election is over.

    Lawyers in other countries, where judges are essentially civil servants, marvel at the extent to which the judiciary in the United States is enmeshed in politics, not only at the state level, where judges often campaign for election, but at the federal level. Yet it was a 19th century European, Alexis de Tocqueville, who explained why.

    In “Democracy in America,” Tocqueville wrote that a visitor to this country “hears the authority of a judge invoked in the political consequences of every day, and he naturally concludes that in the United States judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer at the first glance nothing that is contrary to the usual habits and privileges of those bodies; and the magistrates seem to him to interfere in public affairs only by chance, but by a chance that recurs every day.”

    In other words, judges in theory apply the law, but in practice they make law on momentous issues from school desegregation to abortion to same-sex marriage. It could hardly be otherwise, given the role of courts in interpreting the Constitution, including what Supreme Court Justice Robert Jackson called “the majestic generalities of the Bill of Rights.” Given that fact, liberals and conservatives alike argue, why not drop the pretense of apolitical judges and support or oppose nominees on the basis of their party label or ideology?

    There are two compelling answers to that question.

    The first is that the vast majority of the work done by federal judges — particularly trial judges who preside over civil and criminal trials — doesn’t involve hot-button social issues. In most cases, what matters most to lawyers on both sides is the judge’s intelligence and sense of fair play, not his or her ideology. Even on appeals courts, where ideology or partisan identification plays a greater role, the process is more complicated and collaborative than many politicians and interest groups imagine.

    Second, until the recent trench fighting in the Senate over judicial nominations, partisan imbalances on the federal bench were corrected over time as the White House changed hands. By tradition, home-state senators proposed candidates for federal trial courts to the president, who would then exercise his constitutional prerogative of making nominations. The Senate, in turn, would treat those nominations with deference as long as the candidates were professionally qualified.

    An understandable exception to this practice has been the appointment of Supreme Court justices, who as the unreviewable arbiters of the meaning of the Constitution loom much larger in national policy than trial or appellate judges. Even with high court justices, however, deference to the president generally has produced a diversity of views on the bench.

    That said, the ABA proposal would not affect the Supreme Court. It calls for senators to impanel diverse and bipartisan commissions to screen candidates for district courts, and for similar panels to be appointed (presumably by senators and the White House) for multi-state appellate courts. Some senators already rely on advisory panels, though the rules differ from state to state. The Judicial Advisory Committee for California comprises appointees both of Democratic Sens. Barbara Boxer and Dianne Feinstein and of the White House.

    Boxer was accused of hypocrisy when she opposed President Bush’s nomination of one of the names recommended by the California panel, state Superior Court Judge James E. Rogan of Orange County. Her objection was frankly political: As a member of the House, Rogan was one of the managers of the impeachment of President Clinton. But the purpose of screening panels is to identify qualified candidates from which senators and presidents can choose, not to make the appointments themselves.

    It’s naive to think that politics will play no role in the appointment of federal judges. What matters is that the bench is not filled by cronies or contributors who lack legal qualifications or a judicial temperament. The next president should urge senators in every state to join him in adopting a politically sophisticated variation of the ABA proposal.

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    Sarbanes-Oxley Upheld By Court as Constitutional

    Sunday, August 24th, 2008

    By David S. Hilzenrath Washington Post August 23, 2008

    An appeals court yesterday upheld the Sarbanes-Oxley Act of 2002, dismissing arguments that the government’s attempt to protect investors from repeats of the scandals at Enron and WorldCom gave federal overseers unchecked power. 

    The U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the heart of the act, the creation of a nonprofit board to set auditing requirements and police the accounting firms that audit public companies. 

    The legislation, adopted in response to a wave of corporate accounting abuses, was meant to restore public confidence in the stock market, make executives more accountable and improve the audits on which shareholders depend to keep companies honest. Among other things, it required top executives to certify corporate financial statements and subjected audit firms to periodic inspections by the new board. 

    Businesses have protested that the act imposed costly burdens and provided too little benefit. The legal challenge was brought by Beckstead and Watts, a Nevada accounting firm that the oversight board accused of performing flawed audits, and the Free Enterprise Fund, which advocates reduced taxes and limited government, according to court papers. 

    Lawyers for the losing side said they plan to appeal yesterday’s 2-to-1 decision by a three-judge panel. 

    The decision is “one more reason for Congress to step up to the plate on comprehensive modernization of our regulatory structure,” said David Hirschmann, senior vice president of the U.S. Chamber of Commerce. The Chamber of Commerce was not a party to the case, but it views the accounting oversight board as part of a larger regulatory drag on the economy. 

    The plaintiffs in the lawsuit argued that the Sarbanes-Oxley Act violated the constitution’s separation of powers by investing the Public Company Accounting Oversight Board with governmental authority while insulating it from presidential supervision and control. They also argued that the act subverted the president’s power over appointments by having PCAOB members appointed by majority vote of the Securities and Exchange Commission

    Defenders of the Sarbanes-Oxley Act said in a court filing that the case against the law was tantamount to an assault on independent agencies — a reference to such long-established regulators as the SEC, the Federal Trade Commission and the Federal Communications Commission, which are not directly controlled by the president. 

    Writing for the appeals court panel’s majority, Judge Judith W. Rogers said the plaintiffs lost the bulk of their case more than 70 years ago when the Supreme Court upheld the constitutionality of independent agencies. In addition, the SEC, whose members are nominated by the president and confirmed by the Senate, has broad authority over the board, including the power to change its rules, limit its operations and block any sanctions it proposes against auditors, she said. 

    The Sarbanes-Oxley Act “vests a broad range of duties” in the accounting oversight board, but the board’s “exercise of those duties is subject to check” by the SEC “at every significant step,” Rogers wrote. She was joined in the majority by Judge Janice Rogers Brown. 

    In an impassioned dissent, Judge Brett M. Kavanaugh wrote that the Sarbanes-Oxley Act renders the PCAOB “unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure.” 

    The majority sided with U.S. District Judge James Robertson, who threw out the suit last year, asserting that its legal theories did not merit a trial. 

    The fact that President Bush’s Justice Department joined in the defense of the Sarbanes-Oxley Act was noteworthy in part because the lawsuit framed the act as an encroachment on presidential power. The Bush administration has generally fought to expand presidential power. 

    Seven former SEC chairmen filed a brief in support of the Sarbanes-Oxley Act, as did the Council of Institutional Investors and several pension funds for public employees. 

    The lawyers waging the case against the act included Michael A. Carvin, a former Justice Department official who represented then-candidate George W. Bush in litigation over the 2000 election recount in Florida, and Kenneth W. Starr, the former judge and solicitor general who investigated President Bill Clinton‘s relationship with Monica Lewinsky

    Though the lawsuit focused on constitutional issues, the parties behind it had other grievances. A leader of the Free Enterprise Fund, Mallory Factor, has argued in print that the act damaged the economy and made it possible for chief executives to be sent to jail for honest mistakes. 

    Meanwhile, Beckstead and Watts suffered damage to its reputation as a result of PCAOB action, according to a legal brief. Beckstead and Watts asserted that the board was demanding too much from audits of small companies. 

    The Sarbanes-Oxley Act took aim at a system in which auditors, who are supposed to serve as watchdogs, were widely accused of serving the interests of the companies they audited. Corporate profit statements that were later found to be deeply flawed or fraudulent passed muster at big audit firms such as the now-defunct Arthur Andersen

    Under the old system, big audit firms inspected each other and found little to criticize. They pursued lucrative consulting contracts from the companies they audited, giving auditors another reason to curry favor with their clients. Their main lobbying organization wrote auditing rules that made it hard to hold auditors accountable for fraud or negligence, and they faced little discipline. 

    Under Sarbanes-Oxley, consulting was restricted, and the new board replaced the lobbying group as the auditors’ overseer. In the years since President Bush signed the law, corrections to corporate financial statements became more commonplace, as have disclosures that companies had serious weaknesses in their internal controls. Accounting firms received consolation in the form of expanded audit work–and bigger audit fees. 

    But the PCAOB faced a backlash. Under pressure from business and the SEC, it last year eased requirements that it had put in place three years earlier for audits of companies’ internal controls, 

    The act is named after Paul S. Sarbanes (D-Md.), former chairman of the Senate Committee on Banking, Housing and Urban Affairs, and Michael G. Oxley (R-Ohio), former chairman of the House Financial Services Committee

    Sarbanes wasn’t blind to the constitutional issues involved in the lawsuit. When the law was being drafted, he sought legal advice on some of the same questions. 

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    New managers named for General Butler State Park, Jenny Wiley State Resort Park and Lake Barkley State Resort.

    Saturday, August 23rd, 2008

     

    FRANKFORT, Ky. – Three new park managers have been appointed by the Kentucky State Parks. 

     

    Ty Lindon, who has served in several management positions for parks in Kentucky and Mississippi, was named the park manager at Jenny Wiley State Resort Park near Prestonsburg. Lindon, a Boone County native, has been the assistant park manager at Jenny Wiley and for the past eight months has served as acting park manager. 

     

    Lindon has 25 years of experience in the Mississippi State Park system, where he worked as assistant park manager and park manager at four parks and received several honors for his work. 

     

    John Rittenhouse, who has been the manager at Lake Barkley State Resort Park at Cadiz since 2004, has been named the manager at Kenlake State Resort Park near Aurora. 

     

    Rittenhouse is a Hopkinsville native who previously worked as the city manager for Cadiz and as the Florence city utilities manager. 

     

    Timothy Hibbard has been named the new park manager at General Butler State Park in Carrollton. Hibbard has 18 years of experience in the hotel industry and most recently served as assistant general manager at Hilton Suites Lexington Green in Lexington. He has also held various positions with other hotel management companies. 

     

    All of these appointments are effective Sept. 1, 2008. 

     

    There is a new sheriff in town. Our new Kentucky Supreme Court shows that they believe justice should trump procedure.

    Saturday, August 23rd, 2008

    By LawReader Senior Editor Stan Billingsley                        Aug. 23, 2008
    In a Fayette County rape conviction, LACY BEDINGFIELD V. COMMONWEALTH OF KENTUCKY, 2007-SC-000128-DG.pdf the Supreme Court overruled the Court of Appeals and granted a new trial based on DNA evidence.
    This important decision written by Justice Scott, grants a new trial and discusses in depth the basis upon which new evidence discovered years after the trial and outside the one year rule of CR 60.02 will be dealt with when substantial evidence is presented.
    This decision raises DNA evidence to a new level of importance in Kentucky.  Evidence of the absence of a defendant’s DNA is also applied in this decision.
    This case shows that this Court recognizes that the search for justice should not be hindered by rules of procedure that do not take cognizance of the reliability of newly developed scientific tools.
     We cannot fail to note that this decision is contrary to the words of U.S. Supreme Court Justice Anthoin Scalia, who wrote in an infamous capital punishment decision,   “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

    Correction:  see the following follow up re: this Scalia attributed quote:
      Barry Miller: Widely published Scalia quote re: “innocence” is inaccurate. We have to agree. Scalia didn’t really ever say: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

    What Scalia did say was:
    “There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

     Prior to 2007 the Scalia doctrine seemed to be a doctrine advocated by the majority of Kentucky Appellate Judges.  This case demonstrates the paradigm shift back to the search for justice even at the expense of procedure.  
     

    The Kentucky Supreme Court held:
    “When newly discovered evidence is of such a nature that it is manifest to the conviction, substantially impacts the testimony of a material witness, or would have probably induced a different conclusion by the jury had the evidence been heard, then assuredly, the interests of justice demand that a criminal defendant is entitled to have such evidence set before the court.
    …we are now faced with the question of what weight we should attribute to newly discovered, quasi-exculpatory evidence in the form of DNA data and, thus, whether the post-conviction introduction of such information warrants Appellant’s request for a new trial under these circumstances.”
    In the Bedingfield case, the prosecution argued that DNA was found on the victim and this buttressed her claims.  Later advances in the testing of DNA revealed that the sperm on the victim was not from the Defendant.
    The Kentucky Court of Appeals and the Fayette Circuit Court had denied Bedingfield a new trial basically relying on CR 60.02 time limits.

    Senator David Williams Calls for Inquiry over District Judge Popovichs release of two accused felons when Dept. of Public Advocacy won’t represent them. DPA funding issue heats up

    Saturday, August 23rd, 2008

    By LawReader Associate Editor Steve Horner                       Aug. 23, 2008

     

                State Senate Pres. David Williams (D-Burkesville) is calling for a probe to sanction a Campbell District Judge who released two defendants on Aug. 14 because they did not receive preliminary hearings pursuant to law.  Judge Gregory Popovich was unable to hold preliminary hearings for the two defendants because the Department of Public Advocacy said that it could no longer add to its swelling Campbell County caseload because of budget cutbacks. 

     

                “I am releasing someone charged with attempted murder in a drug deal, a drug war where the other person allegedly started the war,” Popovich said from the bench, according to a story by The Cincinnati Enquirer’s Kevin Kelly posted on Aug. 15 at the newspaper’s nky.com. “I’m releasing them into our streets. Please be careful. Hope that nobody else gets hurt. But remember the fight is between the public advocacy office and the state Senate who don’t seem to care enough to protect us. They should put that stuff aside and protect us.”  Popovich added the following:  “If I were to ignore that 10-day rule then we’ve got Guantanamo Bay.  We’d never have counsel. I could keep them in jail forever and they’d never have a trial because we can’t take them to trial without counsel.”

     

                Popovich’s remarks drew very heavy fire in a prepared statement by Williams as covered by the newspaper’s chief political reporter, Patrick Crowley, in a story posted about 3pm on Aug. 15.  Williams’ statement read in part as follows:  “The fundamental duty of the Judiciary is to protect public safety.  It is incomprehensible that Judge Popovich would release an individual who he acknowledges is dangerous because of his failure to conduct a timely preliminary hearing…The judge has at his disposal the statutory authority to protect the public and a full investigation should be conducted by the Judicial Removal and Retirement Commission as to his rash actions disregarding the public safety and his bizarre explanation thereof.”          

     

    Williams is not related to former state Highway Commissioner Marc Williams.

     

     

    Senator David Williams Calls for Inquiry over District Judge Popovich’s release of two accused felons when Dept. of Public Advocacy won’t represent them. DPA funding issue heats up.

    Saturday, August 23rd, 2008

    By LawReader Associate Editor Steve Horner                       Aug. 23, 2008

                State Senate Pres. David Williams (D-Burkesville) is calling for a probe to sanction a Campbell District Judge who released two defendants on Aug. 14 because they did not receive preliminary hearings pursuant to law.  Judge Gregory Popovich was unable to hold preliminary hearings for the two defendants because the Department of Public Advocacy said that it could no longer add to its swelling Campbell County caseload because of budget cutbacks. 

                “I am releasing someone charged with attempted murder in a drug deal, a drug war where the other person allegedly started the war,” Popovich said from the bench, according to a story by The Cincinnati Enquirer’s Kevin Kelly posted on Aug. 15 at the newspaper’s nky.com. “I’m releasing them into our streets. Please be careful. Hope that nobody else gets hurt. But remember the fight is between the public advocacy office and the state Senate who don’t seem to care enough to protect us. They should put that stuff aside and protect us.”  Popovich added the following:  “If I were to ignore that 10-day rule then we’ve got Guantanamo Bay.  We’d never have counsel. I could keep them in jail forever and they’d never have a trial because we can’t take them to trial without counsel.”            Popovich’s remarks drew very heavy fire in a prepared statement by Williams as covered by the newspaper’s chief political reporter, Patrick Crowley, in a story posted about 3pm on Aug. 15.  Williams’ statement read in part as follows:  “The fundamental duty of the Judiciary is to protect public safety.  It is incomprehensible that Judge Popovich would release an individual who he acknowledges is dangerous because of his failure to conduct a timely preliminary hearing…The judge has at his disposal the statutory authority to protect the public and a full investigation should be conducted by the Judicial Removal and Retirement Commission as to his rash actions disregarding the public safety and his bizarre explanation thereof.”           Williams is not related to former state Highway Commissioner Marc Williams.

    Death Row Inmate, Marco Allen Chapman, asks for quick execution

    Saturday, August 23rd, 2008

     

    On Thursday Aug. 21, 2008,  the Kentucky Supreme Court upheld the death sentence of Marco Chapman.  Chapman plead guilty in 2004 to the stabbing deaths of 7 year old Chelbi Sharon and 6 year old Cody Sharon and to attacking their mother Carolyn Marksberry and older sister Courtney Sharon in Warsaw, Kentucky.

     

    Chapman has from his arrest asked for the death penalty.  He waived a jury trial and asked Boone Circuit Judge Tony Frohlich to impose the death penalty.  The Department of Public Advocacy advanced the mandatory appeal to the Kentucky Supreme Court.

     

    One of the issues raised by his appellate attorneys was that he was asking for the state to kill him and that this was evidence of his incompetency.  The court held that the facts of this case did not warrant such a conclusion.  Chapman has said he didn’t want to have to go through a trial and didn’t want to put the victims and their family through a trial.

     

    He has accepted responsibility for his actions, and this is not per se evidence of incompetence.

     

    Kentucky has executed only two inmates since the death penalty was restored in 1976

    Federal Judge Lowers Fen Phen lawyers Bail by $93.25 million

    Saturday, August 23rd, 2008

    U.S. District Judge Danny Reeves, has lowered the bail for Shirley Cunningham from $45 million to $1.25 million. Bail for William Gallion has been lowered from $52 million to $2.5 million.

    A number of restrictions have been placed on the two attorneys regarding international phone calls, travel, and business activities.   Strangely Judge Reeves prohibited William Gallion from having any contact with his long time significant other, Melissa Green.  When this restriction was announced Green left the courtroom in tears.

    Both Gallion and Cunningham have been held in the Boone County Detention Center since August of 2007. 

    Both Gallion and Cunningham, whose first jury trial ended in a mistrial when the jury split 10-2 for acquittal, are scheduled to be retried on Oct. l4, but that date is now likely to be continued

    CANADIAN JUDGE SHOCKS COURT FOR PRAISING HOME INCARCEREE…THIS JUDGE SURELY CANNOT BE AN ELECTED JUDGE…

    Thursday, August 21st, 2008

    August 20, 2008  Brian Caldwell Record staff   KITCHENER, CANADA

    James Boppre broke all the rules of house arrest when he went for a late-night drive in his pickup truck last month.

    He did not observe his curfew.

    He did not remain sober.

    He did not keep the peace.

    And as he crashed into a Kitchener car lot — driving naked while speeding, drunk, high on crack cocaine and next to a naked prostitute — he was not being of good behaviour.

    “This is one of the most flamboyant, flaming relapses I’ve ever seen,” defence lawyer Brennan Smart said. “It’s almost the stuff of comedy writers.”

    Boppre, 39, of Waterloo, already had a drunk driving record when he was convicted last year of two weapons offences and breach of recognizance.

    He received a nine-month conditional sentence of house arrest and went to a rehabilitation facility, where he was an “exemplary resident.”

    Once out and living with his sister, Boppre thought he had his problem under control and gradually began drinking and taking drugs again.

    Then, on the night of July 30, he completely snapped.

    “He just jumped in with both feet,” Smart said. “It’s astounding.”

    The former owner of a landscaping business with a six-figure income, Boppre got drunk, went out in his truck and picked up a prostitute at a Kitchener  intersection.

    Crown prosecutor Mark Poland said Boppre then parked on East Avenue and smoked crack with the woman before they both took their clothes off.

    Boppre sped away on East, masturbating while watching the woman masturbate, then missed a curve, went over an island and crashed into a parked car at the intersection of Weber Street.

    Witnesses saw Boppre grab his clothes and dress while running away, leaving the accident and the naked woman behind.

    He was arrested after one of the witnesses followed him behind a nearby plaza and gave police a description.

    “I think Your Honour would struggle to find a more egregious breach,” Poland told Justice Colin Westman.

    “It holds the conditional sentencing regime up to ridicule.”

    Poland argued for a six-month jail term after Boppre — supported in court by two rows of friends and relatives — pleaded guilty yesterday to impaired driving, possession of crack cocaine and leaving the scene of an accident.

    Westman, however, disagreed the house arrest was a failure because Boppre unravelled with about a month to go.

    He credited Boppre with doing well for so long and gave him just four months in jail — the minimum penalty given his three previous drunk driving convictions.

    “I want to reward you for the efforts you’ve made,” Westman said.

    Boppre was also prohibited from driving for five years and placed on probation for three years, with a term he get recommended counselling.

    Smart said Boppre has a supportive family and wants to try rehab again to beat his “debilitating addiction.”

    Eddy Montgomery, Com. Attorney for Pulaski county, sues Dept. of Corrections over early release of inmates – Court grants temporary injunction blocking application of 2008 Budget Bill language which changes parole rules.

    Thursday, August 21st, 2008

    Aug. 21, 2008
     

    LawReader presents the law behind the news on this important issue.
    Circuit Judge David Tapp has granted a temporary  injunctive relief directing the Kentucky Department of Corrections cease application of new parole rules that have resulted in the release of more than 1,000 inmates statewide.   The new rules also have resulted in the release of 1,500 inmates who were on parole supervision.

    Judge Tapp’s order applies only to inmates convicted in Pulaski, Lincoln and Rockcastle counties for the time being.    He will consider making the order permanent and will consider making the order effective statewide after conducting an additional hearing on Aug. 27th

    Eddy Montgomery, the Commonwealth Attorney for Pulaski, Lincoln and Rockcastle counties filed a lawsuit in the Pulaski Circuit Court to stop the early release of inmates made possible by new release rules adopted by the 2008 session of the General Assembly.   See HB 406 at http://www.lrc.ky.gov/record/08RS/HB406.htm 

    Montgomery, who credits his Deputy David Dalton with doing a lot of the research necessary to prepare the lawsuit, argues in his complaint that the Legislature improperly included the new rules in a Budget Bill and not an amendment to the applicable KRS provisions, and that the Department of Corrections is improperly making these rules retroactively.

    In his complaint against the Department of Corrections, Montgomery argues that the changes are illegal and endanger the public, including him.  “The plaintiff has a right to remain safe from convicts and felons being released early and shooed out the jailhouse door,” Montgomery said in a motion. “The Department of Corrections is flooding the Commonwealth with people not due to be released from either jail or parole supervision.”

    Montgomery asked Judge Tapp to rule that the new parole credits are unconstitutional, and sought an order for all the people released under the rules to be put back in jail or on supervision.

    Justice and Public Safety Secretary J. Michael Brown said the cabinet will defend the new rules on parole credits. The legislature had the authority to make changes in parole, and the law is presumed to be constitutional, Brown said.

    The state will abide by Tapp’s order and not apply the new rules on parole credits to any inmates or parolees from his circuit. However, corrections officials are not barred from continuing to use the rules elsewhere, Brown said.

    And Brown disagreed that the new rules on parole credits endanger the public. People are released from prison and parole supervision all the time in Kentucky; the people released under the new provisions are no different, he said.

    The legislature made the changes to save money by reducing the inmate population at a time when the state is strapped.

    The legislature approved the new rules as part of the budget, instead of in a regular bill. That’s one thing that rankles critics such as Montgomery, who has said lawmakers sneaked the provisions into the budget with little notice.

    One change affected people who commit violations such as drug use while on parole, and have their parole revoked.

    Before, if a person sentenced to five years had served one year and been on parole two years before being sent back to prison, he would have the remaining four years of his original sentence to serve.

    Under the new provision, he would get credit for the two years on parole – “street credit,” some call it — leaving two years to serve.

    Montgomery said the state is applying street credit retroactively, giving inmates credit for time they spent on parole before the new rules were adopted. There is no limit, meaning inmates are getting credit for parole time from crimes 20 years ago, Montgomery said.

    Montgomery’s lawsuit argues the changes are unconstitutional, in part because they infringe on the power to commute sentences and make pardons that rests solely with the governor.

    The lawsuit also claims the new rules violate state law. Among other things, there are no written policies to implement the rules, and it is illegal to apply the measures retroactively, Montgomery said.

    State Rep. Kathy Stein, D-Lexington and chair of the House Judiciary Committee, said the legislature had to reduce the inmate population to cut costs, but do it in a way that was safe.

    The changes in parole credits have accomplished that, she said.

    Brown, however, said the only approach that makes sense is to apply past parole credit to the current inmate population

    LawReader has reviewed Montgomery’s complaint and notes the following essential issues raised.

    Quotes from Montgomery v. Dept. of Corrections lawsuit:
    “2. In the 2008 Legislative Session, the Kentucky Legislature passed a Budget for 2008-2010 (hereafter referred to HB 406). Language was slipped into the budget language for the Department of Corrections, fundamentally changing the way that the Department of Corrections determines when prisoners get parole, how much and in what manner parolees get jail credit when their parole is revoked, and at what point parolees are determined to have served heir entire sentence.”

    (The following provisionsof HB 406  are targeted by Montgomery as being unconstitutional.)
    “3.  Pursuant to HB 406, Part I (Justice and Public Safety Cabinet”; Subsectin 5 (Corrections); Sub-section (4) and (5):

    Probation and Parole Credit: Notwithstanding KRS 439.344, the period of time spent on parole shall count as part of the prisoner’s remaining unexpired sentence when it is used to determine a parolee’s eligibility for a final discharge from parole as set out in subsection (5) of this section or when a parolee is returned as a parole violator for a violation other than a new felony conviction.

    Minimum Expiration of Sentence:  Notwithstanding KRS 439.354, a final discharge shall be issued when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by minimum expiration of sentence had he not been paroled, provided before this date he had not absconded from parole supervision or that a warrant for parole violation had not been issued by the board.”

     

    “4. Nowhere in HB 406 does it authorize the application of the statute in a retroactive manner.”

    “15.  This action is brought pursuant to KRS 418.404, the Kentucky Rules of Civil Procedure, CR 57, CR 65.01, CR 65.03 and CR 65.04 to stop ongoing and continuous violations of the laws and constitution of the Commonwealth of Kentucky. These violations being the existence of unconstitutional provisions with the body of HB 406 as well as the illegal and unconstitutional actions by the Department of Corrections regarding their application of certain provisions of HB 406.”

     

    (Montgomery argues that the Legislature by adoption of HB 406 has infringed on the exclusive commutation powers of the Governor.)
    “28. Section 77 of the Kentucky Constitution vests all power of pardons and commutations in the Office of the Governor. Amongst other requirements, the Governor must make certain written findings to exercise this power.”

    “29. KRS 439.340 mandates that parole shall be ordered only for the best interest of society and not as an award of clemency, and it shall not be considered a reduction of sentence or pardon.”

    “30. KRS 13A.130 mandates that an administrative body by internal policy, memorandum or other forces of action may not expand or limit a statute of administrative regulation.”

    “31. KRS 446.080 mandates that no statute shall be construed to be retroactive, unless expressly so declared.”

    “37. HB 406 KRS 439.340 by using parole; “street time” and other factors to manipulation the expiration of sentences for reasons inconsistent with the plain language of the statute.”

    Personal:  Eddy Montgomery is a l990 graduate of the U of L Law School.   His office is located in Somerset.   When LawReader inquired about his hobbies, he says he is a frustrated golfer with an incurable slice.  While we might be able to help him with some advice on his slice, he appears to need no help in getting the attention of the Department of Corrections.  See the following links in LawReader FREE LINKS:

    GOLF TIPS:  http://www.golfdigest.com/  swing tips,        The Perfect Golf Swing A great video that really works.   Weight Shift in Golf Swing      how to hit iron shots straight – video