Letter to Sen. Sessions from NACDL President Gerald Lefcourt Regarding: FBI Lab Misconduct; Newly-Discovered Information About the Use of Bad Science to Convict Accused Citizens Due to Such Misconduct; Failure of the Novel "Newly-Discovered" Evidence Standards Under the 1996 Post-Conviction, Habeas Corpus Laws to Afford Review and Remedy for Likely Wrongful Convictions Resulting From Such Misconduct.
- (e)(1) In a proceeding instituted by an application for a writ of habeas corpus . . . the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
- (2)If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
- (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
-- 28 U.S.C. 28 2254 (e)(1), (2)(B) (emphasis added here).
This 1996 revision to the law radically changed the post-conviction review and relief law you stated you thought still existed to assist those who have likely been wrongly convicted because of FBI Lab misconduct. It eviscerated the traditional "cause and prejudice" test for habeas corpus petitions by incarcerated citizens with which you are clearly familiar from your days as a prosecutor.
The former traditional test, as you correctly noted during the hearing, required a federal court to at least hear the evidence if the petitioner demonstrated "cause and prejudice" for and from the failure to present the proffered evidence in the lower or state court.(1) But the 1996 law increased the burden, in all post-conviction review cases, to "cause and innocence," by"clear and convincing" proof.
Now, far different than in the past, any citizen petitioning for post-conviction review must prove the impossible: "by clear and convincing evidence . . . that no reasonable fact-finder would have found the applicant guilty of the underlying offense." Or, put another way, he must now prove by the new, far more rigid, clear and convincing standard, that every reasonable juror would have found him not guilty, but for the lack of the "newly discovered" evidence.(2)
This new standard turns the most fundamental American principles of justice on their head: it only takes one juror with a reasonable doubt to prevent you from going to prison or an execution chamber. But under the new law, should exculpatory evidence come to light (within a one-year time deadline!), all jurors would need to hypothetically agree that the new evidence proves your innocence for a hearing to even be held.
The State of Illinois recently recognized that there should be other rules for newly-discovered scientific evidence in post-conviction relief proceedings. Otherwise, the general rules are unduly restrictive, and manifestly unjust. Last July, Republican Governor Jim Edgar signed into law an exception from the generally applicable post-conviction rules for newly-discovered scientific evidence, like the evidence now being revealed regarding flawed FBI Lab work perhaps infecting tens of thousands of cases. That state statute is attached, as Attachment A, to my written statement to the Subcommittee for the September 29 hearing. We urge the Judiciary Committee and the Congress to quickly adopt the language of this statute as the appropriate model for a like amendment to the new national habeas corpus laws ushered in by the 1996 Act.
I have also enclosed a legal memorandum on just how far-reaching are the unintended consequences of the 1996 Act's changes to the law of post-conviction relief. Several persons active in the Right-to-Life Movement from your home state raised these same objections in their correspondence to the last Congress, when it was contemplating passage of the Act. They include Cumberland University Law School Professor David M. Smolin, and J. Scott Houser of the Southern Center for Law and Ethics based in Birmingham. Copies of their letters are also enclosed.
Senator Sessions, the unintended, adverse impact of the new requirements for post-conviction review under the 1996 Act's "newly-discovered" evidence amendments to the traditional habeas standards will be most severely felt in cases where faulty FBI Lab work was used to obtain a likely-wrongful conviction. It will resound in all cases where real, newly-discovered scientific evidence could lead to exoneration of the innocent, and apprehension of the guilty.
Through the Subcommittee's ongoing oversight, and through the disclosure of the underlying, original materials from the IG's investigation being released to us under the Freedom of Information Act, case-contamination from faulty and biased FBI Lab work is just now surfacing. Meanwhile, the one year clock for review under the new post-conviction laws enacted last year keeps ticking away.(3)
We urge you and your colleagues to promptly amend the 1996 Act and to return to the original "cause and prejudice" standard you thought was the law governing "newly discovered" scientific evidence, and to give it retroactive effect so as to protect those otherwise unduly imperiled by FBI Lab, and other law enforcement misconduct resulting in false scientific evidence being used to wrongly convict citizens accused.
All of us at NACDL, our Legislative Director in the national office, Leslie Hagin (202/ 872-8600),
and I, stand ready to assist you, the Subcommittee, and Congress in any way possible, in your
important work to ensure that FBI Lab misconduct and other law enforcement abuses do not go
unheard or unremedied. If they do, it is the American people who stand victimized. Thank you for
your consideration of this critical matter.
Sincerely,
Gerald B. Lefcourt
Enclosures.
cc:
Subcommittee Chairman Charles Grassley
Subcommittee Ranking Member Richard Durbin
The Hon. Strom Thurmond
The Hon. Jon Kyl
The Hon. Russ Feingold
The Hon. Herbert Kohl
U.S. House Judiciary Committee Chairman Henry Hyde
U.S. House Judiciary Committee Ranking Member John Conyers
The Hon. Robert Wexler
1. See e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
2. Before the 1996 Act, a "cause and innocence" requirement for post-conviction review was applied by the courts in only the most narrow circumstances -- those involving death penalty sentencing claims, in successive petitions. See Sawyer v. Whitley, 505 U.S. 333 (1992). Only one court has ever found a petitioner to have satisfied this narrow, old "cause and innocence" test that applied prior to the 1996 amendments.
In that one, extraordinary and likely anomalous case, Lloyd Schlup had been wrongly convicted of a capital offense. He was sentenced to die. Later, several eyewitnesses to the murder who had not participated in his trial attested to his innocence, and their testimony was offered on Mr. Schlup's post-conviction appeal as "new evidence." After much litigation with the government, he was finally found to have satisfied the innocence test, by the then-controlling "more likely than not" standard. (He was found to have satisfied the "good cause" prong of the test due to his lawyer's utter ineffective assistance.) He was therefore deemed entitled to a hearing under the old "cause and innocence" test -- the only person to have ever been found by a court to have so satisfied the requirements of that test. Schlup v. Bowersox, 912 F. Supp. 448 (1995), writ of habeas corpus granted, 1996 U.S. Dist. LEXIS 8887 (1996).
Between the date of Mr. Schlup's habeas hearing and the district court's ruling, Congress passed the Effective Death Penalty and Anti-Terrorism Act. Because of the timing, "neither the amendments to 2254 nor chapter 154 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996 apply to the petition of Lloyd Schlup for Writ of Habeas Corpus." Schlup, 1996 U.S. Dist LEXIS 8887, *29 (1996). Importantly, the court noted that had the new 1996 laws controlled, Mr. Schlup would not have even received a hearing on his new evidence:
The Supreme Court in Schlup [remanding the case] clarified that to be entitled to federal review of new claims brought in a successive petition, the petitioner must show that "it is more likely than not that no reasonable juror would have convicted [petitioner] in light of the new evidence...." Schlup, 115 S. Ct. at 867. This matter is presently before the Court on remand from the Eighth Circuit to apply the standard articulated in Schlup to the present matter. While this matter was still pending before this Court, Congress amended 2254 to provide that, with respect to new claims raised in a successive petition, the petitioner must show, inter alia, by "clear and convincing evidence that no reasonable fact finder would have found [Petitioner] guilty of the underlying offense." This standard is more stringent than the "more likely than not" standard articulated [by the Supreme Court] in Schlup. If the Court were to apply the standard set forth in the April 1996 amendments to 2254, Petitioner's claims fail because he does not satisfy the stringent standard set forth in the amendments. The determination of whether the April 24, 1996 amendments to 2254 apply in this case is most significant because application of those amendments will deprive Petitioner of federal review of his constitutional claims.
1996 U.S. Dist. LEXIS 8887, *19-*20 (emphasis added).
The district court concluded with these comments about the new law:
Th[is court] can think of no greater injustice than denying a petitioner under sentence of death from receiving federal review of his constitutional claims where the Court held, prior to the enactment of amendments changing the law, that the petitioner satisfied the relevant standard articulated by the Supreme Court. . . . The amendments, if applied in this case, would negatively affect Petitioner's ability to overcome the procedural bar to the Court's consideration of his new claims raised in his successive petition.
1996 U.S.Dist. LEXIS 8887, *25-*26 (emphasis added).
Fortunately, due to the timing of the court's review of the case relative to the effective date of the Act, the court was not forced to follow a congressional mandate that would have wreaked such a "manifest injustice." But in all post-conviction cases arising now -- including those not even presenting a successive petition circumstance, and including all those involving FBI Lab misconduct -- the "new evidence" requirements of the 1996 Act will govern, absent prompt congressional amendment for new scientific evidence. In these cases, innocent persons will not even receive the judicial review, let alone relief, that vindicated Mr. Schlup and removed him from death row. Rather, they will be left with no effective review and remedy mechanism whatsoever, no matter the new scientific evidence regarding FBI laboratory errors or misconduct that were used to convict them. This is a manifest injustice, which Congress must act swiftly to prevent.
3. NACDL, et al v. U.S. Department of Justice, D.D.C., Civil No. 97-372 (GK), filed 2/25/97, amended 3/3/97.
As I noted in my written statement to the Subcommittee, while successful in disgorging for the public from the DOJ the Inspector General's conclusory report, we are only slowly receiving the 60,000 pages of underlying investigatory notes, interviews, etc. Only under judicial force has the government started to give us this material. But what they are giving us is a veritable mountain of papers -- all shuffled out of order, which obviously makes our independent re-organization, re-cataloging and analysis extremely time and labor-intensive.
The Inspector General's actual investigation was far more extensive than his report indicates. Moreover, as recently noted by Dan Alcorn, our Freedom of Information Act (FOIA) specialist handling the case, based upon his experience dealing with the Justice Department in other FOIA cases, the "good stuff is always in the 'last box.'"
In short, while the new habeas corpus rules impose a one-year time period in which a
person can file a petition for post-conviction judicial review and relief, the DOJ's disclosure
process is moving at a snail's pace.
National Association of Criminal Defense Lawyers (NACDL)