The Appeals Process Is Woefully Insufficient
To Protect The Innocent - Part II

By Jeff Deskovic

In my last article I outlined the deficiencies in the State Court System in protecting the innocent. In this article, I will go into the Federal Court System. After a defendant has been denied by their state’s highest court, they are no longer entitled to a lawyer if they cannot afford one. The Problem With Not Having An Attorney In Federal Court Unlike State Court, where a defendant is assigned an attorney to represent
him if they cannot afford one, the defendant does not have a right to an attorney while challenging his conviction in Federal Court.

Although federal courts have the authority to assign a lawyer, most of the time they do not. This results in the logic defying sight of an innocent defendant, often, although not always, poorly educated, forced to represent him or herself against a seasoned prosecutor. If one
stops to consider for a moment, this is totally outrageous and inconsistent with any type of fundamental fairness from which we may have confidence in the accuracy of outcomes.

After all, although most wrongfully convicted prisoners familiarize themselves with the law, as I did, the fact of the matter is that to be an attorney requires three years of study including invaluable classroom training, and passage of a bar exam before they may represent other people. Learning law through going to the law library and reading cases is no way comparable to that, nor a substitute. If it was, lawyers would skip law school, read case law, and then take the bar exam. Often, wrongfully convicted prisoners are charged with serious crimes carrying heavy prison sentences, and they are somehow expected to use the little bit of learning that they have gained from the prison law library against a prosecutor who has been law school-trained, passed the bar, and then gained experience. The unfairness in this equation is obvious.

Somehow neither Congress nor the United States Supreme Court has seen this practice as violating our Sixth Amendment right to counsel. Additionally, the groundbreaking and justice-promoting decision in Gideon v Wainwright granting defendants the right to a court appointed attorney was somehow not seen as applying to prisoners filing habeas corpus proceedings, appeals to the Circuit Courts, or to the United States Supreme Court.

As I see it the situation, coupled with the frequent practice by appeals courts of not really addressing issues on the merits and ruling as the facts and/or the law requires, constitute the two most important reasons why miscarriages of justice are often not corrected at the federal level. All too often it is often found that the wrongfully convicted have long ago had all of their appeals exhausted at the time they are ultimately proven innocent. Compounding these problems is the fact that the instinct of most courts is to deny motions and appeals brought by defendants pro se, (representing themselves). In a sense, this is a kind of tacit admission that those representing themselves are usually incapable of bringing forward meritorious claims and/or arguing them correctly.

The arguments against appointed counsel by the state is essentially twofold. Firstly, they claim it would be too costly. My counter to that argument is that there is no price that should ever be put on an innocent person’s freedom. A competent attorney is essential to ensuring
that justice is done. Secondly, since the issues that may be raised in federal court have to have been raised in prior state court proceedings, these issues have already been mapped out for the defendant.

The refutation of this is that while the issues themselves have previously been argued, that fact does not take into account that one is allowed to supplement the record, citing additional cases as authority as to why a case should be overturned so long as it does not fundamentally
alter the claim, and that secondary persuasive sources may also be cited, such as scientific studies or treatise. In addition, an attorney is far more likely to be aware of recent decisions impacting, or related to, the issues raised in the case at bar. This additional material is important
to bring to the court’s attention in order to help it decide the case correctly, and essential to a defendant’s obtaining justice.

In addition, for several reasons, it is not enough for the defendant to simply submit a brief, essentially copied from the state appellate briefs, and then wait for an answer from the opposition, relying on that to obtain justice. As will be demonstrated, as I review various court
proceedings, a defendant must answer responses given by the prosecution and then must also draft applications. To ensure justice, these must be done by a competent attorney. Furthermore, since state court law is irrelevant in federal court, the state court cases and arguments need to be removed from the briefs.

Habeas Corpus

A habeas corpus proceeding is different from an appeal in that federal courts do not entertain issues pertaining to state law. Instead, state prisoners who file a petition for a writ of habeas corpus are arguing their conviction is running contrary to the United States Constitution.
Therefore the issues that must be raised must be Constitutional issues, and must previously have been raised in state courts, in such a way as to put those courts on notice that the appellant was arguing his or her issues in a Constitutional context. If issues are raised for the first time in federal court then the court will dismiss the petition without ruling on it on the grounds that the issues were not exhausted.

The procedure is that a judge, referred to as a magistrate, is assigned to the case, and he makes a recommendation to another judge as to how he or she should rule. The defendant files legal papers, and then the prosecution submits legal documents. It is up to the defendant,
or his or her attorney, to then counter the answer of the prosecution in what is known as a traverse. Otherwise, it is presumed to be accurate.
This counter obviously is an original document, which must take into account the cases cited by the prosecution and show that they do not apply and that the cases the defendant has cited are controlling. Therefore, it must be drafted, and thus is not a mere copying of arguments
that were previously made. As stated above, in reality, it requires an attorney to do it properly.

Once the magistrate judge has made his or her recommendation, that is then forwarded to the presiding judge. It is up to the defendant to file objections to the recommendation and point out, through citing case law, how the recommendation is, incorrect if in fact, it is. Any unobjected to portions of the recommendation is presumed to be correct. Again, this requires an attorney with first-hand knowledge of the law who can work to make credible arguments in the objection, especially given the short time limit allotted for filing such objections. It is
especially critical when one considers that judges, although not mandated to follow the recommendations of the magistrate judge, frequently do. Therefore it is critical that a persuasive document be crafted.

Often the prosecution attempts to circumvent the court from even ruling on the merits of the issue that the defendant raises by attempting to get the court to dismiss the petition for one reason or another without even looking at the merits. Historically, many a case has fallen through the cracks this way. There are other problems inherent within habeas corpus proceedings. In Rose v Lundy, the court ruled that the previous practice of defendants filing a second petition in federal court if they had new issues, that they had no longer presented, would no longer be allowed and instead the petitions would be looked upon as “successive” and “abusive.”

The intent was to prevent defendants from having more than their day in court, and to reduce appeals. However, this law posed two obstacles to the innocent. Since lawyers often were not appointed, petitions were being filed by the defendants pro se. Then, later on, if they were able to somehow obtain an attorney, the attorney would be faced with the roadblock that the petition had been filed already in desperation by the wrongfully convicted. District Attorneys are quick to take advantage of this and urge the courts not even look at petitions. Additionally, new facts may not have been learned until after the first petition had been filed and ruled upon, and yet the waters are now murky as to whether the new issues will even be looked at under the law.

Another problem is that President Clinton signed the Anti Terrorism Effective Death Penalty Act into law. That law gave all state prisoners one year in which to file a habeas petition after being denied by their state’s highest court. Considering the fact that once a person is finished with state court, they are suddenly without a lawyer and often without money to hire one, out of desperation they find themselves in a scramble against the odds to somehow find a lawyer who will represent them pro bono (free). Meanwhile, the clock is running.

Additionally, that law presents other implications that impact habeas corpus, rendering it ineffective. Under the law, federal courts were directed to review issues “defferentially” to state courts, wherein they were no longer looking at things as critically, nor were they
necessarily looking to see if a state court ruling was correct. It merely became a question of whether the ruling was “reasonable.” If it appeared to be, even if it was wrong, then the federal court was to grant no relief.

In my own case, when I filed a Habeas Corpus Petition there was confusion in the courts regarding how the new one-year rule would apply to cases already in the system, and different courts were answering the question in different ways. My then-lawyer called the court clerk and asked if my petition could be postmarked on the due date, or whether it had to be physically filed and in the building. She was told that it was enough that it be postmarked. That information turned out to be false and, as a result, the petition arrived four days too late.

The then-Westchester District Attorney, Jeanine Pirro, took the position that those four days were somehow prejudicial to the government’s case, and that the Court should simply rule that I was late, and dismiss the petition. It did not matter to her that I was arguing my innocence as established by the DNA or that my Fifth Amendment Rights had been violated.

Apparently it did not bother the conscience of Assistant District Attorney John J. Sergi, who actually wrote the brief arguing that position. He similarly had no trouble arguing that the DNA Test which showed that the semen found in the victim did not match me somehow did not show my innocence. At several points in the brief he wrote, “To be sure, petitioner incorrectly asserts that DNA evidence is conclusive of innocence.” Elsewhere he argued that the fact that the test results came before I was convicted rather than post-conviction somehow impacted upon whether they proved that I was innocent. He argued, “ is is not a case in which an exculpatory result of a DNA analysis is
offered as new evidence after a trial comporting such reasonable doubt as to warrant a retrial at which that result can be considered by a jury
along with other evidence in the case. Rather, the full flower of the herein asserted exculpatory evidence was admitted at the trial and was considered and rejected by the jury as a sufficient basis to create reasonable doubt”. Unfortunately for me, the Court did, in fact, time bar me.

The Federal Court Of Appeals

The procedure is that a defendant must get permission from them before they will agree to hear the merits of his case. Often defendants are denied this permission, thereby leaving them with only one court file to go to, The United States Supreme Court, where the chances
that they will agree to hear a case are slimmer yet.

In my case, the court gave me permission to appeal to them. My lawyer advanced two arguments as to why they should reverse the ruling time barring me:

1) That to allow such a ruling to remain in place would be to allow a miscarriage of justice to continue.

2) That reversing the procedural ruling against me would open the door up to more sophisticated DNA Testing. Once again Pirro, through Sergi, opposed, and once again the court sided with them. My attorney moved to reargue the case in front of them, but this too was denied.


The United States Supreme Court

This is the highest court in the land. The procedure is that before the court agrees to rule on the merits of a case, they must first agree to hear the case. Defendants therefore file legal papers requesting that they agree to hear the case, and the prosecution usually automatically tries to persuade the Court not to agree, regardless of innocence issues being raised or the merits of the arguments being made.

Nationwide the Court agrees to hear only approximately five percent of the total number of cases that come before it. Often the United States Supreme Court ducks questions it does not want to answer and cases it does not wish to rule on by declining to hear the merits of
the case. The media frequently points out when the high court declines to agree to hear the merits of a case which presents an issue that they do not want to deal with that “the United States Supreme Court ducked the issue by declining to agree to hear the case.” As I see it, this
is a moral abdication of its responsibility: A) the Supreme Court is the ultimate arbiter of justice, and, B) they should ensure that injustice is not going on in the court system, and, C) they are charged with resolving questions of controversy by making final rulings.

Included in this general sweep of declining to hear cases it does not want to rule are serious allegations of innocence or errors that occurred in the course of a trial so serious as to cast doubt on the reliability of the verdict. There has not been one single case in which the primary issue was innocence that has been successfully raised as a basis for agreeing to hear the merits of the case, and then ruled on in favor of the
defendant. And, that includes not one of the current 215 DNA based exonerations, nor any of the non-DNA exonerations that have occurred.

Indeed, the sheer futility of it is so known to attorneys that they very rarely even raise it. Thus attorneys for the wrongfully convicted are often stuck raising issues of law as the more likely vehicle by which to gain relief for their clients, which is another reason why it is important that issues of law, often viewed as “technicalities”, be looked at, and ruled upon the right way, because an innocent defendant may be adversely affected. As I will highlight below, it is no wonder why they often do not bother to rule on it.

Most citizens do not realize that guilt and innocence are not, according to the United States Supreme Court, the bedrock of our justice system. Many would be shocked to discover that the Court wrote the following quotations in the case Herrera v Collins: “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.” And, “But we have also observed that ‘due 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, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977). To conclude otherwise would all
but paralyze our system of enforcement of the criminal law.”

One final quote from the high court. “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.” Here the court is not even unequivocally saying that there is such a right. In another case, the court ruled, stating “Few rulings would be so disruptive to our system of justice as would be to
allow free standing claims of innocence.” By all of the above language, the court makes clear that points of law are more important than guilt or innocence, and this is why they don’t like to entertain issues involving guilt or innocence.

I certainly witnessed this first-hand in my case: My attorney raised the issue of my innocence, as established by the DNA. How much more clear cut does it get that a defendant is innocent? Yet the Court, nonetheless, declined to intervene in the injustice that was unfolding in my
case, and it would be approximately five more long years before I would be released from prison, when it could have, and should have, ended right there.