Last week there was some consternation voiced about innocent people going to prison.
The reason this problem has come to light is the time which has passed allowing data to be gathered on people who have been set free from prison because DNA found on a victim did not match the DNA of the person convicted. The assumption is then made that the same percentage of people convicted in non-DNA cases should not have been convicted. Of course, these people will never have absolute scientific evidence showing they should never have been convicted.
It's a disturbing thought. However, what is the solution? SW Virginia Law pointed out a couple weeks ago an article which tells us that no prisoner has been freed by the Virginia courts since the creation of the "writ of actual innocence" for non-DNA cases.
That's not terribly surprising. According to the article, most of the petitions were based on changed or new witness testimony. That's something of which anyone who has worked in court for a while will always be suspiscious. We've all seen witnesses come in and tell an entirely different story than they told the officer the night of the incident. Why do people change their story? Guilt over what's going to happen to the offender (or has happened). Pressure from the offender. Pressure from the offender's family and friends. A desire to keep child support flowing. Any number of factors. Don't believe me? Go spend a couple months in domestic court.
We've also seen cases where "Louie the Rake" wasn't called during the trial to testify because he has 17 felony convictions, has prison tattoos over half his body, is a member of the same set as the defendant and is obviously lying (so badly it's clear he will get destroyed on cross and take the case with him). If you've already lost the case why not depose Louie and use his testimony to get a new trial? It usually can't get any worse.
This is not to say that witness testimony couldn't be the basis of the writ. As Senator Stolle states in the article, if the victim were the only witness and recanted it could lead to a finding of actual innocence. However, even this would be subject to great scrutiny. An ex-girlfriend/ex-wife/sister/cousin who is the only victim/witness may recant over time because the family is constantly on her or, conversly, because she has become persona non grata in the family. She may regret the fact that the offender got 42 years in prison and after the 3 years she thinks is appropriate decide to get him out. As it is the offender who carries the burden, it would be the offender who bears the burden of proving the recantation did not proceed from these sorts of pressures.
There could also be the unknown, unrelated 3d party witness. Of course, this witness would be extremely rare and it's unlikely that an incarcerated individual would ever be able to find this witness. However, if such a witness were to be found he or she would be a strong basis for the writ.
Until the day we invent a machine which can reliably tell us when someone is lying, there will never be a satisfactory process for determining who among the convicted should not be there. Any system created by and composed of men is going to be flawed. There will always be those who are convicted when they should not have been and there will never be an answer which is satisfactory to everyone.
I don't have a satisfactory solution to offer here. Setting the writ at a level of proof as high as "clear and convincing" makes it extremely difficult for anyone to prove his innocence, but not impossible. A preponderance standard might be more appropriate. Personally, I think that it would result in a lot more petitions, but no more people being released from prison. Most writ petitions would still rely on witness testimony changing and I doubt courts are ever going to give that too much credit. The more troubling part to me is the foreclosure of the writ to those pled guilty. We have all seen people plead guilty rationally because they are facing three charges which each carry a mandatory minimum of 20 years if he is convicted by a jury in order to get the 10 years sentence which would be given in the plea agreement. What if a nun who witnessed the crime comes back from a 6 month mission to Liberia and can positively testify "No. It wasn't Bobby. I saw him running away from the gunfire. It was Joe who did the shooting." Bobby, who pled guilty to get a plea that would get him out before he died of old age, has absolutely no chance of getting his conviction overturned by the courts. Sure, he could get the sentence commuted or get a pardon from the governor, but neither of those establish his innocence and both of those solutions may be at the mercy of the political winds (ie a governor who is being accused of being "light on crime" may not pardon or commute anyone).