Wednesday, September 25, 2013

Form Over Substance

“Vous Avez La Parole"
Honoré Daumier
The ultimate goal of a criminal trial is ascertainment of truth. If it’s not that, it’s the punishment of those, and only those, who deserve it. Right?

Yes, but perhaps just in theory.

It seems the contentiousness of legal proceedings has skewed this country’s view of justice. Somewhere in the process “winning,” or at least saving face, became the goal for the government.

Perhaps I paint with too broad a brush—there are plenty of honorable prosecutors and judges, those who would never stand for a potentially innocent person’s conviction. But you see it over and over again: judges and lawyers throwing up roadblocks for defendants with a legitimate chance of proving innocence.

Consider a recent federal case. This month the Ninth Circuit Court of Appeals considered the cause of a man sentenced to 28 years to life in prison for possession of a knife. (No, this isn’t a diatribe on three strikes laws.) Without getting into the facts in detail, the defendant claimed that his trial lawyer, who was later disbarred, completely dropped the ball. One of the lawyer’s failures was investigation, which would have revealed overwhelming doubt as to whether the knife belonged to the defendant. (Larsen v. Soto, 10-56118 (9th Cir. 2013).)

The story ends happily, as the Ninth Circuit agreed with the lower court that the defendant’s showing was strong enough to merit retrial (that is, if the government has the gumption to try him again). But what concerns—no, flabbergasts—me is an argument littered throughout legal briefs and opinions. It goes like this: “Even if the defendant is innocent, he didn’t observe proper procedure, so tough luck.”

In the Ninth Circuit case, it was the government arguing that the defendant had forfeited his claim for federal habeas relief because he hadn’t filed it within a year of his conviction becoming final.

That kind of argument is far too common. And perhaps because they’re so keen on preserving the status quo, courts can be far too receptive to it. Consider the infamous remarks by Justice Antonin Scalia in the context of Troy Davis’s case (In re Davis, 130 S. Ct. 1 (2009)): 

This Court 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 to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.