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April 1, 2007

Readings for April 5 on Herrera and innocence

Here is the note from Kurt Copper from his team explaining their reading choices and plans:

I have attached two files which are edited copies of Herrera v. Collins, 506 U.S. 390 (1993), and House v. Bell, 126 S.Ct. 2064(2006). I tried to do textbook style edits on the cases so people would be more apt to read them and get the point. I would suggest to the class that they might like to read the entire cases to more fully understand the Justices' arguments, but these edited versions give a decent synopsis in about 15 pages total.

Also, we suggest a law review article, "SIMPLE MURDER: A COMMENT ON THE LEGALITY OF EXECUTING THE INNOCENT", 44 BFLR 501 (1996).  We will show a short video clip in class and try to spur the discussion on innocence claims, the role of the federal courts, and the effectiveness of clemency. 

Also, could you post on the blog a short explanation that the difference between a "Herrera" claim and a "Schlup" or "gateway" claim is that the herrera claim is a purely constitutional one (i .e. "it is unconstitutional for you to hold and execute me because I am innocent") and the gateway claim is a procedural one ("though my claims of constitutional violations in my state trial have been procedurally defaulted and thus normally wouldn't be heard, the federal courts should excuse this and hear them because i am actually innocent"). I think just getting that basic concept before reading the cases will help frame them better for the reader.

It should be interesting.

Download edited_version_of_herrera_v. Collins.doc

Download edited_version_of_house_v. Bell.doc

April 1, 2007 in Student-assigned readings | Permalink


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In response to Prof. Berman's suggestion of a 10 year limit on habeas or innocence claims, I wanted to emphasize that the reason Earl Washington sat in prison for 9 years after his first appeal is that the state does not provide counsel for habeas petitions. That is mighty close to the 10 year limit. Interestingly, a significant factor in the pro bono attorneys taking Mr. Washington's case was a fellow prisoner was so moved by his predicament that he did everything he could to bring it to folks' attention.
In the face of procedures available to judge facts, law and innocence in our system, none will be effective without counsel. I might go so far as to say the argument is irrelevant without providing defendants with competent counsel.

Posted by: Kristin | Apr 5, 2007 3:35:40 PM

Also, I wanted to post a possible constitutional argument in addition to the 8th amendment Coker argument I discussed today. One can also certainly argue that it is a violation of the 14th Amendment's substantive due process to execute someone who is actually innocent. Under Griswold, it's unconstitutional for the state to criminalize buying contraception. Under Roe, it's unconstitutional for the state to criminalize abortion. Under Lawrence, it's unconstitutional for the state to criminalize homosexual sex. Yet, under Herrera, it IS constitutional for the state to execute someone for . . . NOTHING AT ALL???? Smells like a 14th amendment violation to me.

Posted by: Kurt | Apr 5, 2007 10:25:54 PM

In response to Kurt's point, I think the counter argument is that the state isn't criminalizing nothing at all...it has a penalty for a crime you have been convicted of committing. You are guilty of a crime in the eyes of the legal system and the punishment for that crime is death. You are not being put to death for nothing, even if you actually didn’t do anything. It's all about how your frame the argument.

Posted by: Tiffany | Apr 6, 2007 10:42:26 AM

For those who presented, I was just curious - are the majority of post-conviction innocence claims based on new DNA evidence?

The reason I ask is because I wonder if in another decade or two the "finality problem" will be slightly less of a problem due to the now-prevalent use of more technologically advanced DNA testing. I suppose claims based on new testimony running up against the desire for finality will always be an issue, though -- but then again, those are likely to be defendants who we are less likely to believe are actually innocent, anyway.

The political reality of relying on clemency and pardons was quite shocking, and I appreciate you three bringing it up. I also found the fact that Washington was required to serve one year for his original crime after he had been pardoned for the murder... for which he had just served 17 years! That is absolutely outrageous and borderline indefensible (I only qualify it as "borderline" because I'm sure there is a reason, but I REALLY struggle to see it).

Posted by: Brett T. | Apr 6, 2007 4:03:15 PM

I really enjoyed the presentation and was also very startled by the Washington case.
I agree with Kristin's hesitance to embrace a 10 year limit on habeas or innocence claims, and I was also uncertain about the suggestion of setting up an innocence commission that reviewed all death row cases before execution. Of course, if members of this commission were elected, we would run into the same problems that already exist. I would also be skeptical of allowing members to be appointed as well - it seems it would be too easy for executives to appoint their political friends who will merely go through the motions of meaningful review.

Posted by: Katherine L | Apr 8, 2007 9:43:07 PM

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