“Innocent Man” is the fourth episode of Arrow, and once again, Laurel Lance’s role as an attorney takes center stage. The plot this time centers on Peter Declan, a man convicted of the murder of his wife and daughter and scheduled for imminent execution. Oliver deduces that Declan is connected to one of the people on his list, so he does a little digging and figures out that Declan is probably innocent. So he goes to Laurel, hoping that she can intervene in Declan’s case. So we’re talking about post-conviction relief.
I. Post-Conviction Relief, Generally
The most well-known species of post-conviction relief is the appeal. A convicted defendant may, of right, file an appeal on almost any basis. As you probably know from high school civics or Law & Order, at trial the burden of proof is on the prosecutor and the standard of proof is proof beyond a reasonable doubt. This is a high burden for the prosecution and a low barrier for the defendant. On appeal, however, the situation is much less favorable for the defendant, as most standards of appellate review work in favor of leaving the conviction undisturbed. The basic rule of thumb is that while appellate courts certainly have the power to reverse trial courts’ findings of fact, they don’t really like doing it. This is true in both the criminal and civil contexts. A description of the various standards and the issues to which they apply can be found here. That’s Seventh Circuit federal law, but it’s a good primer on the issue.
Findings of fact will be evaluated by construing every inference in favor of the judgment, so if we’re talking about a criminal appeal, that’d be in the prosecution’s favor. Acquittals can’t be appealed due to the Fifth Amendment, so the majority of criminal appeals are defense appeals. If there is any way a rational jury could have reached the decision it did, the decision will stand. Most judgment calls by the judge will be reviewed for “abuse of discretion,” which is a very deferential standard, or “clear error” which is slightly less deferential, but still hard to win. The trial court’s conclusions of law, i.e., interpretations of statutes and constitutional doctrines, will be reviewed “de novo,” that is, with no deference shown, but the defendant still needs to be able to point to some specific decision the judge made that was at least arguably wrong.
Where many criminal appeals fall down is the harmless error doctrine. Basically, this is where the appellate court says “yep, the trial court screwed up but it wouldn’t have made any difference, so the conviction stands.” The goal in many appeals is not to overturn the conviction outright but merely to get a new trial. A finding of harmless error shoots that down.
But all of this seems moot. At the beginning of the episode, Declan is scheduled for execution in a few days. Since executions aren’t scheduled while appeals are pending, this would mean that whatever appeals were taken, they’ve been exhausted.
B. Habeas review
In addition to appeal, convicted defendants may file a petition for habeas corpus. Habeas corpus is an enormously important constitutional right, one which traces its history into the Middle Ages, and any summary in a blog post about a TV episode can’t really do it justice. But while it’s something of the centerpiece of our system of civil rights, it only rarely comes up in practice. There are about 20,000 habeas petitions filed in federal court every year. Compare to 1.5 million drunk driving arrests, and you get an idea of just how uncommon this is. Why this is is an interesting question, but not relevant at this point. Habeas petitions are usually made in federal court, and it’s one of the only ways that a state-law criminal case can wind up in federal court. But states do have their own habeas procedures.
But one of the most significant uses of the habeas petition, and certainly one of the most controversial, are pre-trial writs, not post-trial writs. The Supreme Court has actually handed down no less than three cases related to detainees challenging their detention via habeas petition in the last decade, namely the Guantanamo Bay cases: Hamdi, Hamdan, and Boumediene. Those cases have to do with the right of a detainee to petition for a writ of habeas corpus in civil court, essentially asking the government to step forward and indicate precisely why the detention is legally justified.
That’s not what we’re talking about here. In the post-conviction context, a habeas petition is essentially asking a court to take a second look at the proceedings. This is an incredibly long shot. First of all, since 1996, federal habeas review of state court actions has been limited by the Antiterrorism and Effective Death Penalty Act. Something like 98% of federal habeas petitions, as a whole, are denied, mostly on procedural grounds but a little more than a third on the merits. But Declan’s case gives him an edge here, in that something like 20% of habeas petitions in death penalty cases are successful.
Second, that “success” on a habeas petition is not the end of the story most of the time. Most habeas grants simply require the state court to take another look or rectify a problem. It’s very rare that a habeas grant will actually direct the defendant to be released, but it does happen. So even if a defendant “wins” here, that might not mean he actually goes free. It might just mean he moves from death row to life without parole. This is not nothing, by any means, but neither is it what the defendant who maintains his innocence really wants.
C. New Evidence
New evidence comes into play in two ways. First, most states and the federal courts have a provision in their rules of criminal procedure for the vacation of a judgment upon newly discovered evidence. Fed. R. Crim. P. 33 permits a defendant to move that his conviction be vacated and a new trial granted on the basis of newly discovered evidence. But the rule gives only three years after the sentence is entered for such a motion to be filed. Most states have similar rules, and many of them have even less forgiving time requirements. Such a motion would normally come before appeal or habeas petition, as they’d be motions before the trial court.
But there’s also hope outside the formal rules. Many states do not have a provision in their rules of criminal procedure for re-examining the evidence after a criminal defendant has exhausted all of his or her appeals. There are a few states, such as North Carolina, that have set up specific exoneration procedures, but in many instances, the best option is simply trying to get the prosecutor to take another look at the case. Because all of these procedures? They’re all basically irrelevant if the prosecutor drops the charges or moves to vacate a conviction. If the defendant asks for a stay of execution, the judge isn’t going to be inclined to permit it. But if the prosecutor does? That’s going to get the judge’s attention. And if the prosecutor formally requests that a conviction be vacated and a prisoner released, which can be done at any time, rules be damned, even the most die-hard law-and-order judge is going to take that request seriously.
This is where organizations such as the Innocence Project come in. They, and organizations like them, do a lot of great work trying to exonerate wrongfully convicted persons. Much of it has to do with introducing DNA evidence in cases where there was none, but a lot of their biggest hurdles are actually procedural. This isn’t quite as futile as it sounds, as many prosecutors do actually care about justice, and in any case, by the time the Innocence Project gets hold of a case there’s a decent chance there’s been a change in prosecutor.
In practice, this is how a lot of exonerations take place: outside the formal criminal legal system. Then again, a lot of what happens in criminal law happens outside the strictures of criminal procedure. Criminal procedure and constitutional protections? They’re important. But from the perspective of the defendant, local practice and custom, and the semi-formal negotiations between defense counsel and the prosecutor, are at least as important. In one county, every DUI conviction might mean a minimum of sixty days in jail, every time, no exceptions. In the next county, a first offense might only mean a thirty-day suspended sentence, substance abuse classes, and a $250 fine. Assuming both are permitted by the legislature, it’s up to the local bench and criminal bar to establish, by practice, how that’s going to play out.
II. Post-Conviction Relief for Declan
The question becomes what Laurel can do in this case. We actually see her in a judge’s chambers arguing for a stay of execution, and the judge comments “Ours is not a court of justice, Ms. Lance, it’s a court of law. And under the law, I don’t think your evidence is sufficient to warrant a stay of execution. Your motion for habeas corpus is denied.”
At this point it’s probably safe to say that the writers have taken significant liberties with the niceties of legal procedure to serve the plot. There’s just about no way even a criminal defense attorney with years of experience in appellate and habeas work would be able to get a decent petition to a judge in the twenty-four hours it seems to have taken Laurel. Of course, Laurel isn’t primarily a criminal defense attorney—she was prosecuting a class action tort suit a few episodes back—so that might explain why it got denied. But leaving that aside, habeas petitions take months to years to resolve, not minutes.
After the petition is denied, Laurel and Oliver meet, and Oliver says that there must be more to do. Laurel says “I’m an attorney. Trust me, we’re done.” Realistically speaking, she’s right. Once habeas relief is denied—and you aren’t generally eligible for habeas relief until you’ve exhausted your appeals, 28 U.S.C. § 2254 —that’s about it, legally speaking. Certainly that’s it when there’s only a day before the execution, apart from a last minute pardon or grant of clemency. True, groups like the Innocence Project have worked wonders in situations which seemed hopeless, but just ask them: this takes years of hard work. Though there are instances of habeas petitions being granted mere days before execution, that’s the result of years of work, not hours.
Except for how they actually do wind up getting Declan off: convincing the state that they’ve got the wrong guy. If the prosecutor stands by his conviction, getting that overturned can be a nightmare, if it’s even possible. But if the prosecutor decides there was a screw up, it’s going to be the rare judge that would deny a joint motion to vacate by the prosecutor and defense counsel.
If there’s anything to really learn here, it’s that post-conviction relief is a pretty specialized area of law. Most attorneys, even most criminal defense attorneys, don’t do all that much of it. Most criminal defendants don’t really need it, as most of them will be out of jail before their appeals process even gets started. Why appeal if you’ll be out of jail in under a year? And the ones that do need it almost uniformly can’t afford it. If you can afford to fund a significant post-conviction relief campaign, you could have afforded to fund a defense which probably would have avoided you being wrongfully convicted in the first place. Sounds sad to say it, but it’s true. And as with anything else, fixing a trial screw-up with post-conviction relief is way, way more expensive than simply doing it right the first time.
Further, most species of post-conviction relief take a long time, especially the informal ones. Indeed, other than the most complicated mass torts, the criminal appeals and habeas processes take longer than just about any other kind of lawsuit. Years. Decades even. Take a look at the list of people the Innocent Project has helped. There are a few cases that only seem to take a handful of years, but many of them take ten to twenty. And the writers are supposed to communicate a decent sense of this in forty-five minutes while advancing the plot. . . how?
It’s too much to ask. So perhaps the writers bit off more than they could chew on this one. Saving a man from execution is certainly dramatic, but there doesn’t seem to be any plausible way this could have worked out in the time allowed. Forty-eight hours? More like forty-eight months, if they’re lucky. This plot could easily serve as the basis for an entire miniseries. Indeed, John Grisham’s first nonfiction book, The Innocent Man: Murder and Injustice in a Small Town, is about the Innocence Project’s successful efforts to exonerate one man over an eleven-year period. It’s an excellent read, and a far more realistic take on what getting someone off death row really looks like.