Lawyers say Alabama could execute innocent death row inmate

[Judi Lynn]

Source: Associated Press

Lawyers say Alabama could execute innocent death row inmate
By KIM CHANDLER, Associated Press | April 7, 2015 | Updated: April 7, 2015 1:16pm

MONTGOMERY, Ala. (AP) — A defense lawyer is telling an Alabama appeals court that the state is at risk of executing an innocent man.

The arguments come four days after Anthony Ray Hinton was freed from death row when new ballistics tests contradicted the only evidence connecting him to two slayings.

A lawyer for death row inmate Bill Kuenzel on Tuesday told the Alabama Court of Criminal Appeals that he received an unjust trial.

Kuenzel was convicted in the 1987 shooting death of a store clerk. Lawyer David Kochman says prosecutors never disclosed that a teenager who placed Kuenzel at the scene initially told the grand jury that she wasn't sure who she saw.


Read more: http://www.chron.com/news/crime/article/Lawyers-say-Alabama-could-execute-innocent-death-6184150.php

[Archae]

1. Even money the defendant is black, and the witness (and victim) are white.

How about that. Kuenzel is white.

[Kelvin Mace]

3. People need to read the SCOTUS decision

Herrera v. Collins, 1992.

...a case in which the Supreme Court of the United States (in a 6 to 3 decision) ruled 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.

Once you are declared guilty, you cannot be innocent since you are guilty. Barring some Constitutional defect, the Supreme Court held that executing the innocent is perfectly legal.

[Joe Chi Minh]

4. Legal is one thing. Morally responsible humanity is another.

There will be another court, before which the principals will have to appear.

My only objection to the death penalty is that some of the worst killers are public administrators, and consequently, despite the virtuous and conscientious among them, man should not be relied on to administer justice in such a dire and irreversible matter, except perhaps in absolutely incontrovertible cases of the most heinously malevolent murder.

[Kelvin Mace]

5. Just to clarify

I was by no means justifying the ruling. It is one of the most immoral things I have ever read. My point was simply that executing the innocent is perfectly legal. I am sure Scalia never lost a single second of sleep over this ruling. He is evil incarnate. Here he is claiming that torture for information is NOT prohibited by the Constitution:

We have never held that to be contrary to the Constitution. I don't see any article of the Constitution that would contravene—listen, I think it's very facile for people to say, "Oh, torture is terrible." You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?

I can tell you that if I were a fanatic and knew where an atomic bomb was planted and was being tortured for the location, the one thing that would keep me from breaking would be the knowledge that Scalia would die.

[Joe Chi Minh]

7. Good to know, Kevin.

[happyslug]

6. The court comment was the issue was due process NOT guilt or innocence.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=506&invol=390

In our system of law, any issue of FACT, is reserved to the jury (or the Trial Judge is it is a non-jury case). On appeal you can NOT appeal findings of fact only findings of law. Findings of law can include what was or was NOT presented to the Jury (including evidence withheld from the defense), but it has to be a LEGAL issue NOT a factual issue (i.e. did the defendant do the crime is up to the Jury and thus NOT appealable).

This Defendant had filed a Federal Habeas Corpus Petition on the grounds of newly discovered evidence including a statement that his brother had admitted to others that he had committed the murder NOT the Defendant. This was filed 10 years after his trial. This was an argument for a new trial based on new evidence and Rehnquist wrote the following:

This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution - not to correct errors of fact. See, e.g., Moore v. Dempsey, 261 U.S. 86, 87 -88 (1923) (Holmes, J.) ("What we have to deal with on habeas review is not the petitioners' innocence or guilt, but solely the question whether their constitutional rights have [506 U.S. 390, 401] been preserved&quot ; Hyde v. Shine, 199 U.S. 62, 84 (1905) ("It is well settled that, upon habeas corpus, the court will not weigh the evidence&quot (emphasis in original); Ex parte Terry, 128 U.S. 289, 305 (1888) ("As the writ of habeas corpus does not perform the office of a writ of error or an appeal, [the facts establishing guilt] cannot be re-examined or reviewed in this collateral proceeding&quot (emphasis in original).

In simple terms, the Federal Writ of Habeas Corpus only comes into play when there is a clear violation of someone's rights under the US Constitution NOT a re-weighting of the evidence that someone is innocent or guilty.

The dissent really does NOT reject the above, instead says the Federal District Court that first heard the Habeas Corpus case should have held a hearing and if the Defendant can show he was in fact innocent dismiss the conviction. The burden of proof would be on the DEFENDANT to show he was innocent, not the State to show he was in fact Guilty.

I think the standard for relief on the merits of an actual innocence claim must be higher than the threshold standard for merely reaching that claim or any other claim that has been procedurally defaulted or is successive or abusive. I would hold that, to obtain relief on a claim of actual innocence, the petitioner must show that he probably is innocent.

This would have done the Defendant no good, for he only claimed his evidence, if present to a jury, would have convinced that jury he was innocent of the crime. The dissent would have imposed the burden of proof on the Defendant, a burden the Defendant agreed he COULD not meet and thus wanted a ruling saying the mere existence of new evidence was enough to rule that a new trial had to be held.

Thus the dispute between the Majority and the Dissent was over whether the Trial Court should have held a hearing or not based on the evidence presented in the petition. The majority said NO, if someone has new evidence that shows he is innocent, present it to the Governor for a Pardon. The dissent would have required the Federal District Court to hold a hearing, and in the hearing if the Defendant shows he was in fact innocent, he would be set free, but if he failed to SHOW he was innocent, he be executed.

I do not LIKE agreeing with Rehnquist, Scalia, O'Connor and Thomas, but I think they are right, the 8th amendment only applies to Cruel and Unusual punishment, not the issue of innocence or guilt. The Federal Habeas Corpus act clearly only comes into play if the Defendant can show a clear Constitutional violation in his conviction and sentence. Given these were the two Federal provisions the Defendant was trying to use, he had to comply with both and he did not, thus he lost. The Defendant still had to right to present his evidence to the Governor of Texas for a pardon, but like the dissent, the Governor would have wanted clear evidence of innocence which the Defendant did not have (Bush was governor of Texas at that time period, and he did pardon one man, after it was clear that convicted murder had been in Florida at the time the murder he was on death row for occurred).

[Kelvin Mace]

8. I understand the parsing of the legalese

and how it makes perfect sense to lawyers. Telling people with ZERO understanding of the law that they should have brought issue x up ten years ago, and its a shame they didn't, so breathe deeply when the cyanide fills the chamber, is not my idea of "justice".

Also perfectly logical in a legalese sense is Scalia's claim that the Constitution does not bar torture used against people during interrogation since it is not a "punishment". Unless you are the guy being tortured, this is perfectly justifiable, but certainly not justice.

Using this logic, practically no one would have been convicted at Nuremberg.

[happyslug]

9. Nuremberg was a TRIAL, not an review of the trial on appeal

Now, after WWII there was question of what to do with the surviving leaders of Nazi Germany. Churchill wanted just to execute them, but he lost the 1945 Election to Labour, but then Labour had been part of Churchill's War "Unity" Government, so Britain still just wanted to line up the Nazis and Shoot them (Britain justified this on how Britain handled Napoleon after Waterloo, exiling him to the South Atlantic and laving the French King Shoot his Generals).

It was Stalin who wanted Trials, for he remember the Show Trials of the late 1930s and wanted to repeat them. This was modified by FDR (before he died in April 1945) to actual trials. Truman embraced this concept.

The next question was what law applied? Common Law does NOT permit review of Facts on appeal, just issues of law. Civil Law (Derived from Roman Law) did permit review of facts on appeal, but did NOT permit what in the Common Law is called "Conspiracy" (i.e. In the Civil Law each person had to be found guilty based on what they did NOT what others did, even through they were working as one group, in the Common Law you are liable for Conspiracy to do a crime by merely being in the same group of someone else who did the actual criminal act).

THus you ended up with a hybrid system. No Jury, but a panel of Three Judges (Three judges is characteristic of Communist Legal System, a variation of the Civil Law, in the Communist Judicial system two of the "Judges" are civilians who serve for a limited time period, the third Judge is someone with actual training to be a Judge). Conspiracy was permitted to be one of crimes the accused was charged with, a dossier containing all evidence of the case had to be prepared and provided to all sides (Dossiers Another characteristic of the Civil Law System, the prosecutor when preparing the dossier MUST make a determination of the Defendant is guilty or not, based on the evidence in the Dossier, the trial is a test of that determination, thus the comment that under the Civil Law System you are guilty till proven innocent for the Defence can attack anything in the Dossier but the prosecutors can NOT add anything to the Dossier once the Defendant has been charged, and if such evidence is introduced, it is grounds to have the charge dismissed).

Given the nature of the Trials, British Lawyers are considered to have done the best job in the actual trials, but American Lawyers did a better job when it came to appeals.

As to the actual trials, the burden of Proof was on the Prosecution in Nuremberg, this being a Common Law Rule. The Defendants had their trial and a Judgement was entered for or against them. Thus Nuremberg were actual TRIALS not review of those trials by a court of appeals (which was the case in the Supreme Court cases we are discussing). Innocence was a permitted defense in Nuremberg, as it would have been in any US Court when the actual Trial is being held. The US Supreme Court has long upheld the right to say one is innocent till one is CONVICTED of a crime in a court of law.

Thus Nuremberg has to be compared to the defendant's original trial NOT with his appeal to the US Supreme Court. In that Trial, the Court did permit Innocence to be a defence. the problem was the Jury convicted the Defendant anyway (as had the Judges in most of the Nuremberg cases). Thus Scalia's comment would apply NOT to the actual Trials held at Nuremberg, but on the appeals of those trials. Any comparison with Nuremberg has to be restricted to how the appeal to the Court of Review handled the cases, and in most cases the convictions were upheld for the court of appeals just reviewed the process of the trial, they refused to re-weigh the evidence and this was one of the aspects of the Common Law used in Nuremberg.
But most of the charges the defendant were charged with at Nuremberg were up