12/01/02
Let's give them a chance to prove their innocence. The Procedural Default Doctrine cause the dismissal of serious federal constitutional errors in State court trials without those errors ever being reviewed or ruled upon by any federal court.

The Writ of Habeas Corpus, as it developed throughout the history of English Common Law, had the purpose of allowing a citizen to petition the King of England for release from prison when a local feudal Baron had acted in an arbitrary manner in obtaining that imprisonment. Later on in history, the local courts of the Counties of England were held to review by the Crown of the criminal convictions obtained by these local courts. The Rule of Law was established to ensure the common people were not treated unfairly by the local governing body.

After the Magna Carta was signed in 1216 A.D., the King's men went to each village writing down the rules each village in England had developed and found necessary for human beings to live together in a community. These rules were rules of common sense and fairness. Rules against murder, theft, rape, and other personal and property crimes, which we still have today, became the cornerstone of the foundation of the rules of any successful civilization and working society. In fact, "Common Law" derived its name from the "common sense" rules comprising English Common Law.

When the Founding Fathers wrote the Constitution of the United States the tendency of local governments to act unfairly toward the citizens governed, was foremost in their minds. So much so they prohibited suspension of the Great Writ in Article I, §9, cl. 2 of the Constitution. They provided for an appeal by the common citizen to the Federal government when that citizen was imprisoned by the local or state government in a manner the citizen felt violated the rights secured by the Constitution of the United States to him, as a citizen of the United States.

On the surface, this protection of the common citizen from "the clamor of an excited people," or local prejudice aroused in the face of a heinous crime, and an ultimate wrongful conviction, based solely on the unpopularity of the person accused, appeared sufficient to the Founding Fathers. Their understanding of the Writ of Habeas Corpus came from their experience with English Common Law. They recognized the principle of the Habeas Corpus as important to any system of justice. They recognized that local judges were often swayed by local political connections or public outrage over the commission of some crime. They recognized these judges and prosecutors remained in office only at the suffrage of the people in the community where they lived, people they interacted with each day, people who ran the stores where their wives shopped, and the schools where their children learned. In some cases, it is inevitable, that public opinion shades the actual evidence against the accused and ensures conviction, even when an outsider would be constrained by the Rule of Law to acquit the accused.

Unfortunately, the prohibition against the suspension of the Writ of Habeas Corpus, as written in the Constitution, is flawed. England was not a Federal Republic. The Counties in England are not separate sovereign States entitled to the deference sovereign States are due under the principles of comity. The Founding fathers failed to foresee this difference in the type of governments as creating a friction between the Federal Judiciary?s duty to enforce the Constitutional rights of the citizens of the United States, and the rights of the States to enforce their laws. This friction between the United States government, and the State governments resulted in the decision of the United States Supreme Court in 1886 in the case of Ex parte Royall, 117 U.S. 241 (1886), which established the Exhaustion Doctrine requiring all State prisoners to first present their claims of constitutional error to the State courts prior to seeking federal court relief.

From that doctrine requiring exhaustion, developed the Procedural Default Doctrine which has resulted in the indirect suspension of the Writ of Habeas Corpus for 79% of all state prisoners seeking relief from unconstitutional State court convictions.

The principles underlying the Exhaustion Doctrine are sound. The State courts should have the first opportunity to correct unlawful convictions claimed as unlawful under either the constraints of State law, or claimed as unconstitutional under national law. The respect a sovereign State and its people are due demands no less, and to that extent, State prisoners should be required to present their issues to State courts prior to resorting to a Federal Petition for a Writ of Habeas Corpus. On the other hand, the Federal Judiciary should be available to enforce the constitutional rights of the imprisoned citizen as a citizen of the United States, regardless of the fact the conviction took place under State laws. It is in this latter regard the judicial system of the United States has failed.

In my articles, Civics: An Advanced Course Taught Only In Prison, Once You Are Accused, and Collateral Damage, I detail how the Procedural Default Doctrine cause the dismissal of serious federal constitutional errors in State court trials, without those errors ever being reviewed or ruled upon by any federal court. I also show that many of the procedural defaults occurring are actually created by State Rules of Court made so burdensome the average prisoner cannot comply with them while being hindered by the rules of the prisons, lack of money, or general lack of education in court procedures. Fully aware they can avoid federal review of State court convictions, and possibly avoid the cost of a new trial, States have created a procedural morass of rules so complicated and interrelated as to make a Rubic's Cube seem as simple as a game of Tic-Tac-Toe. As stated by Justice O'Conner, in Withrow v. Williams, the procedural default doctrine is a "minefield" for State prisoners.

The Exhaustion Doctrine adequately protects the interests of the States in the "finality" of their criminal convictions. It prevents State prisoners from proceeding directly to federal court without first allowing the local courts to correct their mistakes. Solely on the grounds of judicial economy, it is a justified policy. The Procedural Default Doctrine serves no such valid purpose. It should be abrogated. Constitutional errors should be heard on their merits and corrected by the federal judiciary when the State courts have failed to correct those errors. Claims not exhausted should be returned to the State court. If the State court rules do not allow the claim to be heard on the merits, then the State should change its rules to allow it to be heard. If the State refuses to do so, then the federal court should not hold that lack of a forum against the State prisoner, but against the State, and rule on the merits of the constitutional claim.

Traditional legal scholars will begin to foam at the mouth at about this point of this article, but the simple truth is a citizen of the United States should not be deprived of the protections of the United States Constitution simply because that citizen?s conviction occurred in a State court and under State law. To allow the continued loss of rulings on serious constitutional violations occurring in state court trials, because those constitutional violations are "procedurally defaulted," hampers the evolution of the laws of this nation and deprives citizens of the United States of the protections of the Constitution simply because they are citizens of the State in which the conviction was obtained and the fact the conviction was obtained by a State court instead of a Federal court. Such an artificial distinction is a distinction without a difference to an individual who is then forced to serve out a sentence on an unconstitutional conviction. It violates the evolving standards of what society expects from the courts. It undermines the judiciary as the third branch of government, and as a part of the "check and balance" function it was created to serve. It soils the principles of equity, corrupts the search for truth and defeats the ends of justice through the Rule of Law.

I advocate the abolition of the Procedural Default Doctrine as hampering the evolution of the laws of the nation and as depriving citizens of the United States of the protections secured to them by the Constitution of the United States. No one act would be a greater step into the future of humanity than to abrogate this relic of the past.

Since I am in for a penny, I might as well go in for a pound. Over and above the abolition of the Procedural Default Doctrine, let's get to the truth of criminal convictions.

In Great Britain, a Commission was formed where prisoners, after their appeals were exhausted, could present proof they were innocent of the crimes for which they had been convicted. The Commission, after reviewing the entire case, and the proof presented by the prisoner, was given the power to ask a Court of Appeals to reopen the case in light of the new evidence. Two-thirds of the cases the commission has so-far recommended to the Courts have been overturned and the prisoner released.

Recently in Congress there has been a movement to enact a Constitutional Amendment recognizing the rights of victims of crime. I call for that law to include recognizing the right of prisoners to submit proof of their innocence, at any time, in any court, and be able to obtain release from imprisonment, and relief from their conviction, upon submitting clear and convincing evidence proving a manifest miscarriage of justice has occurred.

I advocate a claim of actual innocence be recognized as a cognizable claim for relief on Federal Petition for a Writ of Habeas Corpus, and relief from imprisonment available upon the presentation of proof, subject to the Exhaustion Doctrine, but not subject to procedural default, which shows by clear and convincing evidence that a manifest miscarriage of justice has occurred.

As stated in the article False Justice appearing in the Playboy Forum in July 2002, by Mr. Chip Rowe, statistics support the presumption that over 100,000 innocent prisoners now languish in the prisons of this nation, based on an extrapolation from the numbers of prisoners that now been proven innocent by DNA evidence.

Let's give them a chance to prove their innocence. Let's get to the truth.