Amazingly, a majority of the Supreme Court believes that it is "guilty until proven innocent"

[BzaDem]

in order to get a conviction overturned.

I am not kidding. I am not being hyperbolic. That is the (judge made) law of the land. It is innocent until proven guilty up until there is a conviction. Then, after that point, to obtain federal habeas relief (if no legal error was made in state courts), one must prove that they are innocent. Even if they show new facts that puts every piece of evidence in favor of conviction into question, they cannot get any relief. They need produce new evidence that shows that they are conclusively innocent -- not just that the evidence used against them was flawed.

But it gets worse. There are justices on the Supreme Court (Scalia for certain, and probably others), that believe even if one produces undisputed DNA evidence that conclusively proves one's innocence, the courts cannot do anything. They believe federal courts can only remedy state court legal errors. If the law was followed but produced an absurd result, they believe the only recourse is executive clemency.

That means the current debate on the Supreme Court (among the 5), during the appeals process and absent legal errors, is between guilty until proven innocent and guilty EVEN IF proven innocent.

If you want to read an opinion that will take your breath away, here is what Scalia said in "In re Troy Anthony Davis" last year (fortunately not for the full court):

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

[bananas]

1. It's worse than that, you also have to show you were denied due process

Actual innocence is not grounds for overturning a conviction.

edit to add link: http://en.wikipedia.org/wiki/Herrera_v._Collins

Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled that a claim that the Eighth Amendment's ban on cruel and unusual punishment prohibits the execution of one who is actually innocent is not ground for federal habeas relief.

<snip>

Chief Justice William Rehnquist’s majority opinion held that a claim of actual innocence based on newly discovered evidence did not state a ground for federal habeas relief.

<snip>

Four months after the Court's ruling, Herrera was executed. His last words were: "I am innocent, innocent, innocent. . . . I am an innocent man, and something very wrong is taking place tonight." <1>

<snip>

[BzaDem]

2. I'm talking about cases where the innocent defendant was not denied any due process.

You are correct that the Supreme Court has never held that actual innocence is a basis for federal habeas relief. That was what Scalia was saying. But the Supreme Court has also never held that actual innocence is NOT a basis for relief.

It has left the question unresolved. In Herrera vs. Collins, they assumed just for the sake of argument that a conclusive showing of actual innocence could form a basis for relief, and then said Herrera didn't even come close. So they left the Contitutional question unresolved.

But the very idea that for innocence claims without due process violations, the debate is between

a) guilty until proven innocent, and
b) guilty even if proven innocent

is really quite appalling.

[bananas]

3. I see - it's a) guilty or b) guilty

"the debate is between
a) guilty until proven innocent, and
b) guilty even if proven innocent"

It's appalling and unbelievable - how can any person rationalize that to himself?

[jberryhill]

8. Because it applies to persons who have already been found guilty

Can you explain when it is, if ever, that a person is presumed guilty.

Because this is is the context of trying to overturn a conviction.

So, is this what you are saying:

"A person should be presumed innocent until proven guilty. After that, they should still be presumed innocent."

Is that correct?

[BzaDem]

10. See post 9. n/t

[crim son]

4. My capacity for that sort of amazement died

some time during the shrub's tenure as POTUS. I'm experiencing mild surprise right now and the next time something like this happens I will be expecting it.

[Rex]

5. THAT is what changed on 9/11...you know the day that changed everything

including JUSTICE and DEMOCRACY! Now it is 'guilty until proven innocent'.

[jberryhill]

7. Herrera is a 1993 decision

I'm not sure the OP appreciates the phrase "in order to get a conviction overturned".

[jberryhill]

6. "in order to get a conviction overturned"

So you are aaying that someone who has been found guilty already should be considered innocent until proven guilty again?

At what point should someone be considered guilty?

[BzaDem]

9. If new facts come to light that cast significant doubt on the entire case in the first place,

the person

a) should not have to have a separate due process violation to get a court to look at the new facts, and
b) should not have to prove themself innocent.

The court should look at the new evidence and see if it casts doubt on most of the original case. If so, they should get a new trial.

Right now, let's say a person is convicted primarily on a DNA test that was conducted incorrectly. But they didn't find out it was conducted incorrectly until 10 years after their trial.

In a federal habeas proceeding, that new DNA test could not exonerate them or even form the basis of an opinion granting a new trial, because there was no legal error made during the trial.

Furthermore, even if a court was permitted to look at the new facts to see if they "prove him innocent," the court could not conclude that on the basis of an indisputably incorrectly conducted DNA test that formed the basis of his conviction. Sure, the entire basis for the original case is gone. But that doesn't prove him innocent (let alone prove him innocent by clear and convincing evidence) -- that just says there is no longer any evidence that suggests he's guilty. That is what is so absurd about how our country handles (or rather doesn't handle) actual innocence claims in court.

[jberryhill]

12. It's rarely that simple

So, first off, it is not clear whether you want actual innocence claims decided by a judge or a jury. Our system does not give judges the power to decide fact questions, absent some kind of waiver.

Since juries don't give reasons for verdicts, you are trying to get to the "basis" for a black box decision.

In a trial where, for example, (a) a witness testified and (b) physical evidence was offered, then any juror might have based her decision on:

A not B
B not A
A and B both

In fact, members of the same jury may have entirely divergent opinions about A or B, and still reach a guitly verdict.

So if someone later claims the physical evidence was flawed, my questions are:

1. Who has the burden of proving it was flawed or not? The state or the convict?

2. What do you do about the witness testimony? Is every witness subject to perpetual recall, even if they are available, or do we put a judge in charge of second-guessing the jury's determination of credibility of live testimony, just on the basis of the transcript?

But predicating the discussion on "if new evidence is found" doesn't answer the question of who has the burden of proof on the new evidence. If your answer is the state, then several defense strategies come to mind, including letting flawed evidence in the original trial, and then later coming back to challenge that piece, absent all other evidence presented at the original trial.

[BzaDem]

13. The judge would decide if a new jury trial is warranted.

1. The convict has the burden to prove that the evidence was flawed. That would be a much better system than we have now, where the convict has to prove that he is actually innocent (and simply proving some or all of the evidence was flawed gets him nowhere).

2. It depends on the circumstances. A witness losing his memory or passing away would not be new evidence that could support a new trial. On the other hand, a witness admitting he lied or was pressured to say something he didn't believe was true is new evidence and should be judged accordingly.

I never said it was simple. This is why we pay judges. There are many instances where judges try to look at the totality of the evidence (for example, review for substantial evidence in various civil contexts). Judges often look at an abstract reasonable jury, as opposed to the specific jury.

The fact that some lines are hard to draw does not mean we should draw them at "guilty even if proven innocent" or "guilty until proven innocent," even in a post conviction setting. "Guilty unless new evidence is discovered that significantly puts into doubt the original case" would be a vast improvement, and it is FAR from the parade of horribles that you cite (subjecting witnesses to constant recall on demand, subjecting prosecutors to keep reproving their case beyond a reasonable doubt, etc).

[jberryhill]

14. Now you've gone full circle.....

You said:

"The convict has the burden to prove that the evidence was flawed"

In other words, "presumed guilty unless proven innocent".

The phrase "innocent until proven guilty" is often stated without the word "presumed" in front of it.

What that phrase summarizes is "who has the burden to do what". In the initial trial, the accused is presumed innocent. What that means is that the state has the burden of proving guilt.

You seem to agree that, once that has happened, then if there is later new/conflicting/whatever evidence, then what you just said is "The convict has the burden to prove that the evidence was flawed".

In other words, you seem to agree that the convict has the initial burden, but you object to stating that presumption in the normal way.

"There are many instances where judges try to look at the totality of the evidence (for example, review for substantial evidence in various civil contexts)."

That is only done (a) if a jury trial was waived or (b) on appeal from a preliminary motion such as an injunction, summary judgment, etc. In the civil context, the Seventh Amendment bars re-examination of a fact tried to a jury. There's not much way around that.

"Judges often look at an abstract reasonable jury, as opposed to the specific jury."

You don't want to go there. Again, these are on appeals of an error of law for failure to prove an element, or in admissibility challenges post-trial. The standard there is whether "a reasonable jury could have found" a verdict if the challenged item was excluded. That is not the standard you are looking for, because it is an extremely low threshold.

The type of situation where that phrase is used is like this. Able is accused of hitting Baker with a baseball bat. Charlie, the blind schizophrenic guy, says that Able did it. Police raid Able's apartment without a warrant and find Baker's blood on a seized bat. Able is convicted. Able then challenges the conviction on the warrantless seizure of the bat.

The court has two questions there:

1. Whether to exclude the bat.
2. Whether a re-trial is warranted.

It is virtually guaranteed in those fact patterns that the appellate court will (a) exclude the bat, and (b) find that a re-trial is not warranted because "a reasonable jury could have found Charlie's testimony credible". That is how the overwhelming vast majority of those cases go. Since it seems that you have some exposure to basic civpro, then the phrase "scintilla of evidence" should resonate with you here. If you still have the chance, the second course of crimpro would be a buffet for you.

But you seem to have already conceded the point that even if actual innocence is a ground for reversal then, yes, "The convict has the burden to prove that the evidence was flawed". How do you end up agreeing with what I thought you disagreed?

[BzaDem]

15. There is a difference between proving innocence and proving evidence to convict was flawed.

I don't have a problem putting the burden of proof on the accused after a conviction. But I do have a problem with making them prove themselves innocent, rather than simply proving that the original evidence was flawed in light of the new evidence.

Proving that a person didnt do something (I.e. proving a negative) can often be completely impossible, even when all the original evidence used to convict was flawed. Even if someone can show all the evidence against them was bogus, it may be impossible to prove by clear and convincing evidence that someone else in particular did it, or that they were elsewhere on the night of the murder.

So it is what needs to be proved, rather than who has the burden of proof, that I have a problem with.

I wasn't citing the substantial evidence standard as an actual standard they should use here. I was pointing out that judges often analyze the totality of the evidence with a hypothetical reasonable jury. I was just saying the problem of analyzing a black box jury decision (that you pointed out earlier) is not an insurmountable obstacle. If you are simply saying that it is easier for judges to look at the totaity of the evidence with respect to a reasonable jury when the bar is high for a reversal (as is often the case, as you point out), that is certainly possible. But I don't think it means the judge should throw up his hands and not even try when the bar is (should be) lower, such as in the case of a factual innocence claim.

[jberryhill]

17. Depends on what standard one is applying

If the majority is applying a preponderance standard, or a clear and convincing standard, it's not the same thing in either direction, given that the initial standard was beyond a reasonable doubt.

What standard did the DC apply on remand?

[Fumesucker]

11. Only if you're poor and particularly if you're poor and have melanin rich skin..

One only has to point to the OJ trial, whatever you may think of OJ's actual guilt or innocence, if he was poor he'd have been convicted of murder after about long enough in the jury room to take a vote.

[Harmony Blue]

16. That is the M.O. of corporations

Guilty until proven innocent. So sad.