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The cliché about American jurisprudence is that the system is designed to let 10 guilty men go so that the proverbial one innocent man does not end up behind bars. By and large, the system does work that way. Prosecutors must prove their case beyond a reasonable doubt. Defendants do enjoy Constitutional rights to defense counsel, to not incriminate themselves and to be free of searches unless the police show probable cause.

Yet a 1996 law has undermined the central protection of the accused—the right of habeas corpus, which the Founders considered so important that they included it in the Constitution even before the Bill of Rights was proposed—so severely that defendants convicted in unfair trials remain in prison, even some who appear to be innocent of the crime charged.

Habeas corpus (Latin for “you have the body”) is a writ designed to release a prisoner from an unlawful imprisonment. A prisoner must file a petition for a writ of habeas corpus, which directs the detaining authority—normally a prison warden—to bring the prisoner to court for a determination of the legality of his or her imprisonment and whether or not he or she should be released from custody. The “great writ” is guaranteed by Article I of the U.S. Constitution and by state constitutions.

Law enforcement officials across the nation pushed Congress and President Bill Clinton to enact what eventually became known as the Antiterrorism and Effective Death Penalty Act. The new law’s intent was to bring finality to the criminal justice process by limiting habeas petitions filed by inmates after they have been convicted. In addition to setting time limits during which a habeas petition can be filed, the law requires federal courts to defer to state court rulings, unless the rulings are shown to be clearly unreasonable.

The provisions of the 1996 law might prevent the release from prison of Darryl Burton, convicted of a 1984 St. Louis murder he most likely did not commit.

Burton’s defense lawyers suspected police and prosecutorial misconduct early on, given the lack of physical evidence and a plea bargain with an alleged eyewitness named Claudex Simmons, who was already charged with a felony in an unrelated case. In the beginning stages of the case, not even Burton’s lawyers could say with confidence he was innocent. They could say he might not have received a fair trial. Later, however, credible evidence of innocence surfaced. An eyewitness told investigators she knew Burton and had seen the shooting but could not identify the shooter. The eyewitness had not been contacted before Burton’s trial and therefore had not testified. Investigators also developed evidence pointing to someone else as the shooter, a man, now deceased, who had feuded with the victim and threatened to kill him.

So imagine the frustration of Burton’s appellate lawyers—17 years into Burton’s prison term—when three judges from the U.S. Court of Appeals for the Eighth Circuit said they also believed the defendant could be innocent but could do nothing about it.

Why not? Here are a few paragraphs excerpted from a longer opinion by the three judges:

“Debate has intensified in recent years as Congress and the federal courts have limited access to the writ in reaction to increasing numbers of habeas petitions. The limitations include a confounding array of procedural impediments that prevent consideration of the merits of claims, as well as substantive barriers that establish modes of review utterly inhospitable to prisoners. Many barriers and impediments represent sound efforts to curb the groundswell of frivolous and duplicative habeas petitions. But the writ of habeas corpus is not a one-way path designed to defeat prisoners’ claims. Rather, our habeas jurisprudence is a balancing act requiring careful attention to each of the important, yet often opposing, principles at stake. Even as we screen meritless petitions, therefore, we must take care not to shut the door to prisoners whose claims cause us to doubt the fairness of their convictions.

“The present case suggests we may not yet have achieved the optimal balance. Darryl Burton’s habeas petition depicts a troubling scenario. One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom. Burton was convicted on the strength of two eyewitness accounts. Since his trial and imprisonment, new evidence has come to light that shakes the limbs of the prosecution’s case. One eyewitness has recanted and admitted perjury. The other eyewitness’s veracity has been questioned by a compatriot who avers it was physically impossible for him to have seen the crime. A layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton’s claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton’s legal claims permit him no relief, even as the facts suggest he may well be innocent.”

Burton’s case is by no means unique. Jordan Anderson and Clyde Anderson, convicted of armed robbery in 1970 in Louisiana, were denied habeas corpus relief even though another federal appellate court conceded, as in Burton, that the state’s evidence against the two was weak. For example, they were convicted on the basis of testimony from an 11-year-old girl who was only at the crime scene momentarily and saw the robber with a mask. A store employee later admitted he had identified the wrong men; what’s more, a fellow inmate later confessed to the crime.

But the court felt that its hands were tied. “We do not gainsay petitioners’ argument that the evidence upon which they were convicted was weak,” the judges wrote. “Indeed, if we were reviewing this case on direct appeal to determine whether the evidence was sufficient to support their conviction, we cannot be certain that we would deny relief to these two defendants. We are not hearing a direct appeal, however, but are deciding the merits of a habeas corpus petition from a state prisoner. … Therefore, on the basis of the relevant precedent in this circuit, we must affirm the district court’s dismissal of the petition.”

That was also another court’s conclusion in the case of Richard Milone, who was convicted of murder in 1973 and denied habeas corpus relief in 1994 even though he had made a “credible claim” of actual innocence, supported by another man’s confession to the murder, which he repeated several times before committing suicide in his jail cell in 1987. In rejecting Milone’s appeal, the court expressed its sympathy for Milone’s position but cited a Supreme Court ruling in Herrera v. Collins that “strongly suggests that actual innocence is not itself a ground for granting habeas relief in anything other than a capital case.”

In Burton’s case, the appellate judges expressed their uneasiness with the decision. “Burton’s habeas petition troubles us because his legal claims do not provide an adequate foundation upon which to present his considerable claims of factual innocence. Though our jurisprudence offers Burton no relief, we express the hope that the state of Missouri may provide a forum (either judicial or executive) in which to consider the mounting evidence that Burton’s conviction was procured by perjured or flawed eyewitness testimony.” But no such forum has been provided. In April 2003, the U.S. Supreme Court turned away the last-chance appeal filed by Burton’s defense attorney.

In cases such as these, where a mistake seems so evident, it seems reasonable to assume the prosecutor who filed the charge would find a way to minimize the injustice. That rarely happens, however. The finality of a jury verdict is a touchstone of the U.S. criminal justice system, and the procedures for changing the verdict are filled with obstacles and gaps. And in too many cases, that means the innocent must stay behind bars.

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