When Procedure Must Matter Over Substance

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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25 Responses

  1. JakeCollins says:

    Shorter Mark Thompson:
    The guy might be innocent, but who cares! Procedure must be upheld, and you can’t make an omllet without falsely imprisoning a few niggers.Report

  2. Jason Kuznicki says:

    It seems to me that there are at least two mechanisms to catch mistakes of this type, one current, and one relatively defunct.

    The current one, of course, is the executive pardon.

    The relatively defunct one, though very important in the history of the common law, is an appeal to a court at equity, which back in the good old days was charged with correcting any gross or obvious mistakes that came of closely abiding by legal procedure.

    No society is simple or predictable enough that the letter of the written law can always, everywhere contain it, and that the mechanical following of procedure will always do justice. A couple of well-placed institutions that can grant exceptions — generally in the direction of clemency, and not in the direction of greater punishment — seem like a prudent concession to human fallibility. Especially here.Report

    • @Jason Kuznicki, I’m not sure that the abolition of courts of equity has had that much impact (though, as someone who practices in one of the few remaining places where they exist, I’m willing to be convinced). But even then, a court of equity is still going to have limited resources and it will need to formulate some sort of rule to triage cases and separate the cases worth hearing on the merits from the ones not worth hearing on the merits. Statutes of limitations still apply in courts of equity for a reason. And the greater the backlog, the tougher that rule is going to have to be.

      Honestly, I think the rule we have is probably close to the best we can do – the after-acquired evidence exception gives a reasonable opportunity to collaterally attack a judgment ad infinitum, and a year is a reasonable amount of time for someone with a legitimate claim of actual innocence to come forward with a habeas petition, although I would probably support increasing it by a year or two more. I’d also be very open to liberalizing the after-acquired evidence rule (although I don’t know how much room there is to do that), although that was not an issue in this case.

      The big problem I have here is that you’ve got a defendant who essentially acknowledges that he possessed or had ready access to the supposedly exculpatory evidence, but then waited a year and a half to try to get that evidence before a judge – and then only before a state judge. After that attempt in state court gets a final denial – and despite being represented by counsel at this point, so far as I can tell – he not only doesn’t appeal the state court decision to the 9th Circuit, but then waits an additional 6 months before filing a separate habeas petition in federal court but, despite the statute of limitations, is nonetheless entitled to a comprehensive hearing – more than a decade after his actual trial – simply because he put in his petition that he was innocent.

      “No society is simple or predictable enough that the letter of the written law can always, everywhere contain it, and that the mechanical following of procedure will always do justice. A couple of well-placed institutions that can grant exceptions — generally in the direction of clemency, and not in the direction of greater punishment — seem like a prudent concession to human fallibility. Especially here.”

      Except for those last two words, I fully agree with this, and if the exculpatory evidence is indeed as strong as the district court concluded (and I have no basis to think one way or the other on that), then I also fully agree with the last two words. The trouble is, as I say above, that even institutions set up for leniency will have limited resources and will ultimately need to establish necessarily imperfect rules for determining when to act.

      That said, the main institution we have for extraprocedural clemency – the pardon – is restricted by means that have nothing to do with limited resources, to wit: “tough on crime” politics. There are absolutely things that can be done to correct that problem.Report

  3. Wilson says:

    This is a good post, and I largely agree with it. Procedure is meaningful and should not be discarded. An “innocence exception” to the habeas statute of limitations would be a disaster, as you explain, and there should be a statute of limitations.

    That said, given the district court found what it found–that this guy was wrongfully convicted–wouldn’t the right thing to do to somehow not apply that holding retrospectively? In your post you make it sound like the district court really shouldn’t have found that, or that such a finding was questionable. Hypothetically though, pretend it wasn’t. Pretend he was railroaded by the system. If that were the case, would this be the right outcome for the 9th Circuit? Did they simply have ‘no choice’?Report

    • Mark Thompson in reply to Wilson says:

      @Wilson, Thank you for your thoughts. Re: retroactivity – I thought about that after I posted this. That is definitely one element of the decision that bugs me, although it should be noted that the concurring opinion casts plenty of doubt on the basis for the district court’s decision on the merits.

      But hypothetically speaking, if we were talking about a situation where something blatantly exculpatory was kept from the jury due to an idiotic attorney, and for whatever reason the appeals went nowhere and the prisoner missed the deadline for a habeas review….it would be really tough to justify applying the decision retroactively.Report

  4. Jaybird says:

    This is one of the things that drives me crazy about the “justice” system.

    The point of the justice system is to right wrongs.

    Person A gets shot by Person B.
    Law enforcement, ideally, moves from a position where they know only that Person A got shot to a position where they have proof that Person B did it. Person B then goes to jail.

    All is right in the world.

    The problem comes when the prosecutors and judges and DAs and what have you take, instead, the attitude that getting the conviction is the most important thing.

    Let’s say that Person C gets arrested instead of Person B. Taken to trial. Convicted. All too often, when prosecutors find out that they may have arrested the wrong guy or, in extreme cases, that they withheld exculpatory evidence (!), I ask “WHAT IS THE FRICKING POINT?”

    We want to take the murderer off the street, yes? Make sure he never kills anybody else, right?

    Well, if Person B did it and you arrested Person C and are arguing that Person C’s innocence isn’t necessarily germane to his continuing incarceration, I’d have to ask:



    • Mark Thompson in reply to Jaybird says:

      @Jaybird, That issue is worth about a billion posts and there’s not many reforms to fight prosecutorial misconduct that I wouldn’t sign on to. Alas, so much of it is cultural – how often, when someone gets acquitted or successfully blocks the admission of incriminating evidence, do we hear the popular refrain about letting criminals walk on technicalities? Culturally we seem to think that anyone who is arrested is guilty until proven otherwise (and even then, they’re still probably guilty). Heck, I’ve even seen it argued quite often that virtually anyone who gets arrested was probably asking for it, guilty of the charged offense or not.Report

      • Jaybird in reply to Mark Thompson says:

        @Mark Thompson, that’s probably the attitude that they take. Maybe Person C didn’t kill person A.

        But you know what? He probably shot somebody else a while back and we overlooked it. Well, we got him now.

        Don’t worry about Person B. We’ll pick him up next week in the wake of some other fool getting shot.

        All of that makes me say “I wonder if we’d be substantially worse off if we didn’t do the law enforcement thing but instead had a really expansive reading of the 2nd and gun vending machines on every other corner.”Report

        • Mark Thompson in reply to Jaybird says:

          @Jaybird, There are plenty of times when I wonder the same thing. Then I decide that the one thing worse than the authorities drawing dubious conclusions about who is and is not worthy of locking up and/or shooting is 300 million plus Americans (of whom a majority seem to take the aforementioned attitude) drawing dubious conclusions about who is and is not worth shooting.

          I’ve increasingly come to the conclusion that, sympathetic as I am to anarchists, anarchism is ultimately indistinguishable from a society where everything is in a black market.Report

        • Mark Thompson in reply to Jaybird says:

          @Jaybird, One more thing – in the one criminal case I’ve ever had, “probably guilty of something else” was pretty much exactly the attitude the prosecutor’s office seemed to take. Not explicitly, of course. More in the vein of “We have nothing to convict your client on this charge, but you should try to get your client to take the deal anyway.” Never mind that my client was clearly, blatantly innocent of the charge, while the evidence they had showed that the CW was clearly, blatantly guilty of the charge 1000 times over.Report

        • Mike Schilling in reply to Jaybird says:


          You’re less cynical than I am. I think it’s less “C is probably guilty of something” and more “I get promotions based on my conviction rate.”Report

        • ThatPirateGuy in reply to Jaybird says:


          I no doe-eyed defender of cop behavior but I am fairly certain I don’t want that scenario.

          I’d rather deal with our system and its many warts than try my luck with the local warlord.Report

          • Jaybird in reply to ThatPirateGuy says:

            @ThatPirateGuy, if Mike Schilling is right and we are dealing with folks who say “I get promotions based on my conviction rate”, then I submit to you that you are, in fact, trying your luck with the local warlord.Report

            • ThatPirateGuy in reply to Jaybird says:


              I’d still rather face the prosecutor as he has to convince 12 people to do me in. The warlord only has to convince one.

              Even worse replacing a warlord is significantly more difficult and much more dangerous to everyone involved.

              I’m willing to hear ideas for improvement but I like non-warlord based society. It makes me happy that I don’t have to worry about shooting someone or getting shot on a daily basis.

              Note: I live in memphis tn. http://www.commercialappeal.com/news/2007/sep/27/memphis-leads-us-in-violent-crime/Report

            • Jaybird in reply to Jaybird says:

              @ThatPirateGuy, “We have nothing to convict your client on this charge, but you should try to get your client to take the deal anyway.”Report

            • ThatPirateGuy in reply to Jaybird says:


              Your right it is damned awful but I can say no to a plea deal, I can’t say no to a bullet.Report

            • ThatPirateGuy in reply to Jaybird says:


              To expand, you and I feel safe to criticize this prosecutor. We might even get involved in a campaign to get him fired. If this was a honest to goodness warlord then we would both have reason to fear what he or his goons might do to us or our loved ones.

              I know your probably engaged in some hyperbole but I don’t want people to forget the very real benefits we get from actually having a government system to handle this. It has a real and frankly too large ugly side but it has benefits too.Report

            • Mark Thompson in reply to Jaybird says:

              @Jaybird, Just to add some context to that quote (which was a paraphrase, not a direct quote from the ADA), my client refused the deal (with my support, of course) and the judge (it was a bench trial) threw the case out at the close of the prosecution’s case and then proceeded to read the trial prosecutor (who, FWIW, was not responsible for pressing the case that far) the riot act.Report

  5. Stephen Rice says:

    I think the problem comes long before any issue of procedural law. What do you think prison is actually for? I’m having trouble seeing the suitability of prison for an innocent person, it’s really that simple. In fact the only procedural question that comes to mind for me is why there isn’t a way to get out of jail when it turns out you didn’t actually do it.Report

    • @Stephen Rice, Prison is not suitable for an innocent person, period, and if the additional evidence is as strong as the district court seemed to think, then this man should be pardoned, stat. The question for the courts, though, is once convicted, under what circumstances do you get the opportunity to – in effect – retry your case and thereby have a chance to persuade someone that you are, in fact, innocent.Report