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Why Death Penalty Appeals Are So Hard

W. Scott Cole

Posted on November 27, 2019 21:35

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In my last TLT, I talked about Texas death row inmate Rodney Reed and why it has taken him so many years to get a ruling from any court to allow him to present the mountain of evidence that showed he is most likely innocent. It occurred to me that most people may not know why it is such a struggle when the evidence is available and easy to present. I will try now to explain a few of the obstacles those inmates need to overcome.

Rodney Reed’s case may not be normal for death row inmates in that he has a very good claim of actual innocence, but there are more than a few that are trying to convince a court to allow them to present evidence of innocence. Most of them do not manage to do so before their execution. Most recently was Ray Cromartie, who was executed in Georgia on November 13, in spite of the fact that he had evidence of innocence including an affidavit that said another person committed the murder he was convicted of.

The first thing that happens when a guilty verdict is handed down is that the presumption of innocence disappears and is replaced with a presumption of guilt. That means every court filing after that point is considered to come from a person who committed the crime. That alone is a very hard barrier to overcome because it means the person filing the motion must prove he is innocent in order to receive a hearing at which he can present the evidence that proves he is innocent.

A second problem is that appeals courts do not care about guilt or innocence. Their sole purpose is to determine whether or not the trial was fair under the Constitution. If it was a fair trial, meaning there were no Constitutional violations, there is nothing else for them to look at. In 2009, Justice Scalia wrote, “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

That leaves one avenue to prove innocence: newly discovered evidence. Newly discovered evidence is material evidence that, after diligent search, was not discovered until after a guilty finding. In Rodney Reed’s case, some of that evidence was in the form of witnesses that did not come forward until years later because the only other person the evidence implicated was the victim’s fiancé, who was a police officer. The witnesses waited so long because they were afraid of retaliation by the police department if they testified.

There are also time constraints. In the early 1990s, the Supreme Court, concerned with the length of time death penalty cases were lasting began to limit the amount of time a person would have to file a petition to present newly discovered evidence. This was done in the interests of “finality” of each case. In many states and on the federal level, that time limit is one year. There are things that can toll, or stop, the clock running, which means that one year can actually be stretched into several. However, once that clock has run out, the inmate’s attorneys must find a reason that is acceptable to the courts for the failure to present the new evidence in time.

If a person has a viable claim of innocence, a way must be found to allow him to present that claim.

W. Scott Cole

Posted on November 27, 2019 21:35

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