October 12, 2017 Practice Points

Old Cases, New Justice

Three recent criminal appeals reward tenacity.

By David Schoen – October 12, 2017

“Society views the conviction of an innocent person as perhaps the most grievous mistake our judicial system can commit.” That is the opening line in a recent decision from the U.S. Court of Appeals for the Third Circuit, allowing a defendant who professed his actual innocence before, during, and after his 1985 murder conviction, to use a motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure to challenge the constitutionality of his conviction more than 30 years later. See Satterfield v. DA Phila., 2017 U.S. App. LEXIS 18537 (3d Cir., Sept. 26, 2017). The court found that the Supreme Court’s 2013 decision in McGuiggin v. Perkins, -- U.S. --, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013), reflected an “intervening change in the law” that now allows a defendant with a credible claim of actual innocence to get his or her day in court, notwithstanding procedural bars that otherwise would apply.

The decision above followed another important recent case from the Third Circuit vindicating a criminal defendant’s fair-trial rights. In Haskell v. Superintendent Greene SCI, 866 F.3d 139 (3d Cir. 2017), the court overturned a murder conviction that was more than 20 years old, based on a finding that a material government witness perjured herself when she testified that she expected nothing in return from the government for her testimony. Her claim was one that both she and government counsel knew was not true at the time of her testimony—and the government failed to correct the false testimony. Significantly, the court held that when a habeaspetition raises a claim that the government knowingly presented or knowingly failed to correct perjured testimony, the petitioner need only show a “reasonable likelihood” that the perjured testimony affected the judgment and need not show “actual prejudice.”

Finally, in United States v. Gries, 2017 U.S. App. LEXIS 18183; 2017 WL 4160847 (7th Cir., Sept. 20, 2017), the court found a violation of the Fifth Amendment’s Double Jeopardy Clause during the trial. The defendant, convicted of running a criminal enterprise, was also convicted of two conspiracy counts concerning acts that were predicates for, and thus lesser included offenses of, the enterprise conviction. The court found that by imposing a sentence based on each of the three counts, the trial court, in effect, imposed three separate punishments for the “same offense.” The court reversed and remanded with instructions that the convictions on the two conspiracy counts should be vacated, based on their “merger” with the enterprise conviction prior to sentencing.

David Schoen is with The Law Office of David Schoen in Montgomery, Alabama.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).