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Pondering Actual Innocence

William Baude of Robbins, Russell has this article on SSRN on the actual innocence problem, with particular reference to the Troy Davis case.  His bottom line is that judges should not stretch existing procedures, thereby exceeding the limits of their legitimate authority.  Rather, legislatures should adjust the procedures to take better account of importance of actual innocence.

I have come to a similar conclusion in many years of litigating AEDPA.  AEPDA was a hammered-out compromise and therefore nobody's idea of an optimum solution.  It had many problems as a result.  The biggest deficiency, in my view, is that Congress cracked down too hard on the very few habeas petitioners with substantial claims of real "got the wrong guy" innocence and not hard enough on the much larger number who merely contest the sentencer's discretionary choice of sentence within the legal range for their crime.

From the 2006 election to the present, I have been content that Congress do nothing on habeas, given the grave danger that they would enact legislation moving in the wrong direction.  If the balance shifts a bit further in the next election in the same direction as the last, it may be safe to go in the water again.  We could make an actual innocence exception to the statute of limitations to match the one in the successive petition rule.  We could even make a substantive actual innocence ground of relief in capital cases.  In return, review of sentencing claims already decided by the state courts should be boosted from the present so-called "deference" standard to the Stone v. Powell rule used for Fourth Amendment claims.

Once more, with feeling, "actual innocence" in this context means "got the wrong guy."  It does not mean that the defense team dredges up a psychiatric prostitute who will swear the defendant couldn't have formed intent because he had consumed too much alcohol, sugar, or whatever.  See page 29 of CJLF's brief in Maples v. Thomas.

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