Why Justice Scalia Is So Angry About Protecting the Innocent

The law, lawyers, and the court.
May 28 2013 3:58 PM

An Innocent Extension

The Supreme Court moves to protect the innocent, and Justice Scalia fumes.

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010.
The justices of the Supreme Court in 2010

Photo by Larry Downing/Reuters

In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough for Floyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

In 1993, Perkins left a party in Flint, Mich., with two other men, Rodney Henderson and Damarr Jones. Henderson was found later, on a trail in the woods, stabbed to death. Jones said Perkins did it. Perkins said Jones did it. Two other witnesses implicated Perkins, and he was convicted and sentenced to life in prison in 1993. He lost his direct appeal a few years later, and his conviction became final in 1997.

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In 2008, Perkins filed a habeas appeal, with evidence he said could prove his innocence. It included a witness saying that Jones had blood on his clothes on the night of the murder and an employee from a dry cleaner saying that around the same date, a man looking like Jones brought in pants and a shirt heavily stained with blood.

Since we are in AEDPA land, the lower courts couldn’t just decide whether this evidence gave them enough doubt about Perkins’ conviction to order a new trial. They had to first determine whether they could excuse Perkins for missing the law’s one-year deadline. Perkins didn’t argue that he’d been exercising due diligence and couldn’t help having taken 11 years to go back to court. He said that because he had evidence of actual innocence, he should get an exception to the one-year cutoff.

In theory, a majority of the Supreme Court has now agreed to such an exception. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass,” Ginsburg wrote. But she also warned that “the exception applies to a severely confined category.” It is not enough for Perkins to assert that he has evidence of his innocence. He also has to show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

That’s a high bar. In effect, it means that to figure out if people like Perkins are entitled to a hearing about whether they have strong evidence of innocence, judges will have to first hold a hearing to figure out whether there is strong evidence of innocence. If you’re a judge whose attention is caught by a habeas petition because you’re concerned that an innocent person may be in prison, AEDPA’s one-year deadline won’t stop you from taking a close look. That’s a victory for defendants and for the growing cadre of Innocence Projects around the country.

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