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Friday, October 30, 2015

Innocence is no reason to stay the noose

Today was a report in Slate about corrupt crime labs which reminded me that one of the lousiest Supreme Court decisions I've seen in recent years which was Herrera Versus Collins.

Dookhan & Farak Frauds

Our System that is supposed to be about Justice is corrupt and inept (and thus unjust) when it allows evidence from sloppy crime labs to stand as reported in the slate article concerning the Dookhan scandal up in Boston:

"Over her nine-year career, Dookhan tested about 60,000 samples involved in roughly 34,000 criminal cases." [Slate]

This is pretty awful, but what is really galling is the comment in the slate article:

"despite the fact that there were between 20,000-40,000 so-called “Dookhan defendants” (depending on whether you accept the state’s numbers or the American Civil Liberties Union’s), fewer than 1,200 had filed for postconviction relief.*" [Slate]

Most of these defendants remain jailed because despite their tainted evidence, prosecutorial power is so strong that they fear prosecutorial retaliation!:

"Many of them were sentenced under plea agreements rather than at trial, and they feared that a re-examination of their cases could potentially lead to even longer sentences" [Slate]

When Procedural Due Process denies Substantive Due Process

This is not justice. Prosecutors always hated that when they or one of their agents broke the law while trying a case, someone would walk free of a crime that they actually did commit. And so they've had the law changed so that most people fear their power so much that even if they are convinced that they are innocent they won't appeal or even go to trial, but accept plea agreements instead. And of course once someone accepts a plea agreement, even if it turns out later they were innocent, prosecutors and judges often refuse to let them out. The attitude in the courts is the same as the attitude of Argentina's Secret Police during "El Processo" (Argentina's dirty war and holocaust against moderate and far left citizens):

"The state argues that most of those Dookhan defendants were surely guilty of something, and the cost of vacating all of their convictions would be chaos." [Slate]

The killer teams that arrested and murdered targets in Argentina had the same motto: "you must be guilty of something" to justify their detention, torture and murder of suspects in Argentina's dirty wars. All of us are guilty of something. Jaywalking? being mouthy to a Cop. If the state can't do it's due diligence that is not due process. But that is not the argument the courts accept. If this were just one person, or a small scale fraud, that would be one thing. But now we also have the case of another lab technician named Farak and evidence around the country that the massive numbers are evidence of systematic judicial fraud - including coverups by the police of that fraud and people jailed for long periods because of fraud. It has to end.

Read: The slate article for more about the case.

Injustice is the denial of Substantive Due Process

And that mess goes back to the awful reasoning in the Herrera Versus Collins case. In that case the courts ruled that once a person has been tried and convicted in a court of law, actual evidence that the person is innocent is not sufficient for a habeas corpus ruling!

"Herrera v. Collins, 506 U.S. 390 (1993), is a case in which the Supreme Court of the United States ruled by 6 votes to 3 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 corpus relief." [Herrera v Collins]

Of course this is a denial of due process in the usual meaning of the term as

"fair treatment through the normal judicial system, especially as a citizen's entitlement." [actually the term should be right]
However, the court denies actual due process:
"Ten years after his conviction, he urged in a second federal habeas proceeding that newly discovered evidence demonstrated that he was "actually innocent" of the murders of Carrisalez and Rucker, and that the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's due process guarantee therefore forbid his execution."
But the courts just didn't want to be bothered with the due diligence necessary to produce actual justice and fair treatment. The decision even stated so (in legalese of course) that they were denying due process:
"because of the very disruptive effect that entertaining such claims would have on the need for finality in capital cases"

Conservative Justices Denying Substantive Due Process

The courts should have considered the 5th amendment as well as the 8th Amendment and the 14th amendment because it holds the courts to a much higher bar than SCOTUS was willing to admit:

"No person shall be held to answer for a capital, or otherwise infamous crime, ... nor be deprived of life, liberty, or property, without due process of law."

Executing the innocent as "procedural Due Process" to Conservative Judges

To the corrupt SCOTUS the "higher standard was that considering actual innocence might be "disruptive" to the schedules and bureaucracy of the modern court system.

Sandra Day O'Connor at least was willing to concede that the State should not be executing innocent people;

"the issue before us is not whether a State can execute the innocent. It is, as the Court notes, whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial."

Blackmun argued that;

"We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. Despite the State of Texas' astonishing protestation to the contrary, see Tr. of Oral Arg. 37, I do not see how the answer can be anything but "yes." [

The current crime lab scandals demonstrate that substantive due process is denied when the courts do not consider the fallibility of human nature and thus of the court system in their consideration of what due process is. Indeed as Blackmun's dissent notes about the courts focus on whether due process is "disruptive" or that a new trial might be less accurate than the first. As Blackmun notes

"This suggestion misses the point entirely. The question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence." [
Blackmun was prescient.

Precedent for gutting 4th, 5th and 8th amendment

However the majority opinion is the precedent for all sorts of outrageous decisions since then. And we should just be glad the ACLU is doing the job the courts should be doing and suing to prevent prosecutors from ignoring their own frauds. Meanwhile Herrera's last words were:

"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."
Slate Article:
Herrera Versus Collins
Wiki summary:
Actual Case File: []
El Processo:

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