Innocence is not enough to get you out of prison.

 

By Lara Bazelon

 

Innocence Network

In May, the Innocence Network will hold its annual conference at a glitzy Hilton in Orlando, Florida. Lawyers, students, and activists from all over the country who work to overturn wrongful convictions will gather to do all the regular conference-like things: attend panel discussions, listen to inspirational talks from boldface speakers, network, and socialize. There is also a part of the Innocence Network Conference that is unique and wonderful. Every year, it brings together scores of wrongfully convicted men and women, offering a variety of programs geared toward their specific needs and celebrating their freedom.

The most dramatic moment of the conference comes after a dinner in the hotel’s ballroom, when each exonerated man and woman is invited up to the stage. One by one, they come forward. They are male, female, black, white, Latino, Asian, and Native American. Some are still young and strong, others walk slowly and with assistance. They hail from the Deep South, the Midwest, the Rockies, the East and West coasts, from big cities and tiny rural communities. As their names are called, so are the number of years they served behind bars: five, eight, 13, 18, 28, 34, 39. Collectively, it adds up to centuries.

Slowly, the stage begins to fill, first one row, then another, then another. When every last exoneree has taken his or her place, scores of them are standing shoulder to shoulder, a dizzying tableau of faces and stolen lives. The weight of the collective injustice is heart-stopping. Then the music starts and the exonerees sing and dance together. The hope and joy in the room is deeply moving.

. Bloodsworth was the first American sentenced to death row who was exonerated by DNA fingerprinting.

But here is a dirty little secret about the exonerated, some of whom were on death row, some just days away from execution. They were able to prove that they were wrongfully convicted, yet very, very few could show that they were actually innocent. They were—they are—innocent, but in our legal system, that all-important fact is largely beside the point.

A wrongful conviction stems from a fundamental breakdown in the legal process—what the uninitiated like to call a “technical error.” Prosecutors buried crucial evidence, witnesses lied, police coerced false confessions, defense attorneys performed so poorly that they basically failed to advocate at all. These “technical” breakdowns matter because they violate the Constitution, which guarantees all criminal defendants the right to be free from police and prosecutorial abuses, to have access to favorable evidence in the state’s possession, and to have a defense attorney who will fight for their cause.

If you are a wrongfully convicted man or woman in this country, it is extremely difficult—if not outright impossible—to win your case by advancing the simple argument that you are innocent. Sounds crazy, right? But it’s true. The Supreme Court has repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other “technical” violation to back up your argument. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

This judicial perversion started with the Supreme Court’s 1993 decision in Herrera v. Collins, a textbook example of bad facts making bad law. Leonel Torres Herrera was charged with shooting Officer David Rucker in 1981 and leaving him to die beside his patrol car in a pool of blood. Also left at the crime scene was Herrera’s Social Security card. Officer Enrique Carrisalez and his partner saw Herrera’s car speeding away and gave chase. Herrera pulled over, and when Carrisalez approached, Herrera shot him in the chest. Carrisalez died less than two weeks later.

The state tried the Carrisalez case first, and evidence introduced against Herrera was overwhelming. Carrisalez’s partner testified that Herrera was the shooter, as did the victim himself in the days before he died. The license plate of the killer’s car matched that of Herrera’s girlfriend; when Herrera was arrested, he had the car keys in his pocket. He also had a handwritten letter in which he apologized for the killings. A jury convicted Herrera of capital murder, he was sentenced to death. After the verdict, Herrera pleaded guilty to killing Rucker.

“With any luck, we shall avoid ever having to face this embarrassing question again.”

Antonin Scalia

Nine years later, Herrera petitioned the Supreme Court to overturn both convictions. Because so many years had passed and because Herrera had been convicted in state court, he had to use a legal vehicle called habeas corpus, a centuries-old, last-ditch remedy that allows prisoners to argue that their imprisonment violates the federal Constitution. Because there is a strong presumption that the criminal justice system functioned correctly in the first instance, only a fraction of these claims succeed.

Herrera argued that he should be among the lucky few because newly discovered evidence proved his innocence. The evidence consisted of three sworn statements. One was written by a lawyer for Herrera’s dead brother, Raul, claiming that Raul confessed to him that he had killed Rucker and Carrisalez. The second, signed by a former cellmate of Raul’s, claimed the same thing. The third, signed by Raul’s son, claimed that he had witnessed his father shoot both officers.

By no stretch of the imagination could these biased affidavits—which conveniently blamed the murders on a dead man—prove Herrera’s innocence of the Carrisalez and Rucker murders, the latter of which he flat out admitted to committing. Herrera’s innocence claim, quite simply, was a farce. And yet it was this claim that the Supreme Court chose to review when deciding a profoundly important question: whether anyinmate with newly discovered evidence of innocence could argue that his conviction had been obtained in violation of the constitutional guarantees of due process and protection against cruel and unusual punishment.

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