The instinct to correct wrongful convictions is part of our national conscience. Books like To Kill a Mockingbird have molded many Americans’ basic notions of right and wrong. Recently, popular media like the podcast Serial and the docuseries Making a Murderer have recaptured national attention and provoked public debate about the complexities—and grayer areas—of innocence.
Exoneration is a topic that would seem likely to focus on the facts more than on the law. Few non-lawyers would balk at the notion that a duly convicted prisoner who can prove his innocence should be freed at a moment’s notice. Yet the current system of federal habeas corpus review makes it exceptionally difficult—and in some cases literally impossible—for innocent people to regain their freedom.
Over the past 12 years, our pro bono practice has exonerated four men wrongfully convicted of murder: Josh Kezer (2009), George Allen Jr. (2013), and David Robinson (2018), and Donald Nash (2020).
Each of these men was innocent in the purest sense of the word: He simply didn’t do it. But none of these exonerations came with the cooperation of prosecutors after their review of the evidence. None came through an act of executive grace. Each exoneration was its own long and expensive battle against unnecessary legal obstacles. Throughout this piece, we’ll draw on Donald Nash’s and David Robinson’s cases to illustrate the shortcomings of the federal habeas system. Both cases are recent, both men are obviously innocent, and both men spent many years in prison unsuccessfully litigating in federal court.
The authors are not bleeding hearts. Outside of these cases, we are primarily defense-side business litigators (which is not to say we’re heartless either). The observations in this piece are informed by our background as civil litigators who take on innocence cases for free, and not criminal defense attorneys, public servants, or even nonprofit attorneys who spend their careers living and breathing this system. We took on these cases simply because each one of these exonerees was able to persuade us of his innocence, despite knowing we could toil for years with uncertain odds of success.
Habeas corpus is civil, although it “feels” criminal. But within the realm of civil litigation, habeas corpus plays by its own rules. Those rules do not feel civil or criminal. In “regular” civil cases, courts consider allegations with an open mind and allow the parties to conduct discovery and present evidence. In habeas cases, however, a hidden switch is flicked. Success is not simply about carrying a high burden of proof. Rather, in most cases, allegations of innocence, and even evidence of innocence, receive a systematically frosty reception of distrust. This sense of distrust pervades almost every case, even when the allegations involve new evidence that no one—the prisoner, the prosecution, the judge, or the jury—ever knew about. The result is that, during federal habeas review, evidence is handicapped, discovery is rare, and hearings are rarer.
True, some (or many) prisoners lie. But so do some civil plaintiffs suing for damages. And so do some witnesses called by those plaintiffs. In our daily litigation practices, we deal with dishonest plaintiffs and witnesses by using the standard weapons in a litigator’s arsenal. Sometimes ferreting out the truth takes longer than we or our clients would prefer, but we can trust that the system is well equipped for competent advocates to close the gap between lies and reality. In federal habeas cases, however, we find that even when we develop new, reliable evidence before entering a courtroom, that evidence may be greeted with automatic suspicion.
In our experience, the primary battleground during federal habeas review is not litigating the central question of innocence. The question of innocence is so well barricaded with procedural obstacles that innocence can resemble a technicality.
Faithfulness to the Constitution is not imperative during federal habeas review, and the legal standards for relief are dizzying. Congress and the Supreme Court have cloaked judicial review of wrongful convictions in layers of abstraction. These legal standards are totally unfamiliar to most lawyers and nonsensical to the rest of society. Instead of determining whether a constitutional violation did occur, federal courts must ponder whether an erroneous state court decision was so wrong that it was “objectively unreasonable.” “Wrong” isn’t enough.
Instead of doing what judges do, the federal judiciary must let slide obvious constitutional violations unless they exceed a vague level of “wrongness.” This process is in equal parts slow and ineffective.
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