Finality, Habeas, Innocence, and the Death Penalty: Can Justice Be Done?
Roko, Ellyde, Washington Law Review
Abstract: In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate's claim on the merits could lead to the execution of an innocent person.
This Article argues that the Supreme Court's 2009 response to a petition for an original writ of habeas corpus in In re Davis1 shows that courts have gone too far. Rather than merely weeding out frivolous claims or showing deference to reasoned state court decisions, federal courts have allowed arcane procedural rules to prevent even meritorious claims from being heard. The Supreme Court's rare intervention should encourage courts to interpret procedural rules less stringently in an effort to make sure justice is done.
In the August 2009 case of In re Davis,2 the Supreme Court of the United States took the unusual step of directing a district court in Georgia to conduct an evidentiary hearing on the possible innocence of a death row inmate.3 After seeking relief from the Georgia Supreme Court4 and the U.S. Court of Appeals for the Eleventh Circuit5 without success, the inmate petitioned the Supreme Court for an original writ of habeas corpus.6 The Court had not granted such a writ in nearly fifty years.7 Surprisingly, the Court directed the district court to hold an evidentiary hearing on the claim.8 As Justice John Paul Stevens wrote in a concurring opinion, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."9
The procedural rarity of the case, however, quickly fell under the shadow of Justice Antonin Scalia' s proclamation in a dissent. "This Court," Justice Scalia wrote,
has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.10
The Supreme Court's dramatic action in Davis highlights the failures of the existing system of appellate and habeas review. Davis, unable to achieve relief through the usual state and federal channels, had to rely on an unlikely action of the Supreme Court to avoid a potentially unconstitutional execution. Given the rarity of such relief, the specter of executing condemned inmates innocent of death penalty crimes looms. Indeed, innocent defendants have been sentenced to death" and evidence suggests some of them have been executed.12 The Davis case highlights a question that most often falls on the shoulders of lower court judges: In the context of the death penalty, can justice be done?
Judge Fletcher posed this question in 1995 while giving the Madison Lecture at New York University School of Law.13 In her lecture, Judge Fletcher highlighted the responsibility of federal district and appellate judges in ensuring justice for defendants sentenced to death: "While some may view the courts as obstructions when appeals drag on for years, the federal courts are surely not doing their duty if they fail to protect the constitutional rights of capital defendants and if they tolerate execution of innocent people."14
Judge Fletcher and her fellow judges on the U.S. Court of Appeals for the Ninth Circuit shouldered that responsibility under intense public scrutiny in 1992. …