More than 90 percent of criminal defendants plead guilty rather than go to trial.



While some of these defendants are innocent and choose to plead guilty rather than face a more severe sentence following a jury guilty verdict, the overwhelming majority of them are in fact guilty of the offenses to which they plead. That leaves the less than ten percent of people who face a jury because many of them are in fact innocent. Juries find thousands of innocent individuals guilty who ultimately receive long prison terms; some are sentenced to death. While the figures vary, research shows that as many as 2 to 5 percent of the nation’s two million plus offenders, either in prison or in some form of community supervised release, are innocent.


There are two overriding reasons why innocent people are convicted and sent to prison:

  1. Government misconduct (mostly prosecutorial)
  2. Ineffective assistance of counsel, (either at the trial or appellate level.)


And there are two overriding reasons why innocent inmates find it virtually impossible to have their actual innocence claims heard in post-conviction proceedings. First, there has been a historical reluctance by the courts, led by the U.S. Supreme Court, to entertain “actual innocence” claims in habeas corpus proceedings; and, second, “procedural bars” erected by both the Congress and the courts alike make it exceedingly difficult to present “newly discovered” evidence claims in post-conviction proceedings, at both the state and federal level. This reflects an attitude among too many judges that once a criminal conviction is obtained and the initial appeals affirm the conviction, that conviction should be “final” and not open to further review.


But there have been recent developments at the judicial and legislative level that could significantly impact “actual innocence” claims. First, the Texas Legislature passed, and Gov. Rick Perry signed, the Michael Morton Act which requires prosecutors to provide criminal defense attorneys any evidence relevant to the defense of the case. This law came in the wake of the tragic Michael Morton case—a man who spent 25 years in the Texas prison system for a crime he did not commit (here, here and here). The Legislature also passed a bill that is sitting on Gov. Perry’s desk awaiting signature or veto which would require prosecutors to undergo training to ensure that they understand the rules of disclosure of evidence in criminal cases. This ethics-oriented training would be mandatory within six months of employment of prosecutors.


Additionally, the U.S. Supreme Court recently issued a ruling in a Texas death penalty case that will allow claims of ineffective assistance of counsel claims to be more adequately addressed in Texas courts. In 1996 Congress passed, and President Bill Clinton signed into law, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) which was codified at 28 U.S.C. § 2244(d)(1)(A). A major underpinning of AEDPA was to streamline the process of seeking a federal writ of habeas corpus.  Consequently, however, the Act virtually eliminated the availability of the federal writ of habeas corpus to state prisoners who do not adhere to the strict procedural requirements governing access to the writ pursuant to 28 U.S.C. § 2254. Even before ADEPA, there were intense procedural obstacles a state prisoner had to mount in order to have a habeas petition heard pursuant to section 2254. For example, a state prisoner who filed a patently frivolous writ, or delayed for years before filing his writ, or filed repeated applications for the writ, or did not follow all the procedural post-conviction rules at the state level (e.g., meeting the deadlines for filing petitions from one state court to another), or did not exhaust all his state remedies before seeking federal habeas relief could have his federal petition summarily dismissed under section 2254. Most often, these kinds of federal habeas petitions are dismissed as being “procedurally defaulted.”


That’s precisely the procedural nightmare that ensnared Carlos Trevino who, following conviction, was sentenced to death because the jury did not find sufficient mitigating evidence necessary for him to qualify for a life sentence. Trevino believed his trial counsel was ineffective because he did not adequately investigate the mitigating punishment evidence issue. Following Trevino’s formal sentencing to death, the trial assigned new counsel to handle the condemned inmate’s direct appeal who did not raise Trevino’s ineffective assistance claim on appeal. After his direct appeal was denied, Trevino sought collateral review of his conviction/death sentence with the assistance of a new appointed attorney who also did not raise the ineffective assistance in these initial habeas corpus proceedings. Trevino’s post-conviction review was, like his direct appeal, denied. He then sought federal habeas review under section 2254 in which the ineffective assistance claim was raised for the first time.


Citing the provisions of ADEPA, the federal district court held that Trevino had “procedurally defaulted” the ineffective assistance claim by not raising it in his initial state habeas proceeding. The Fifth Circuit upheld that lower court decision. Trevino then sought, and secured, certiorari review before the Supreme Court on the ineffective assistance claim; namely, that trial counsel was ineffective for the handling of the mitigating evidence issue; that appellate counsel was ineffective by not raising the ineffective counsel issue on appeal; and that post-conviction counsel was ineffective by not raising the ineffectiveness issue during the initial habeas proceeding.


Almost all states are procedurally geared to having ineffective assistance claims heard in post-conviction proceedings. While most states refuse to allow the claim to be raised on direct appeal, a few appeals courts will address the issue only if it is abundantly clear from the trial record that defense counsel was either effective or ineffective. Texas is one of those states that permit such a limited review of ineffective counsel on appeal, although its courts prefer to have the issue heard in the initial post-conviction proceeding where it can be fleshed out in a fact-finding hearing. Last year the U.S. Supreme Court in Martinez v. Ryan held in a significant ruling that a substantial ineffective assistance of counsel claim by a state prisoner could not be “procedurally defaulted” in a federal habeas proceeding if (1) the prisoner was not represented by counsel in the initial state post-conviction proceeding; or (2) the prisoner was denied effective assistance of counsel in that proceeding.


In the Trevino case, Texas sought to avoid the Martinez mandate because its post-conviction rules permit a defendant to file a motion for new trial requesting that a hearing be held to factually develop an ineffective assistance claim. The problem with the procedure, however, is the time constraints for filing such a motion, getting the transcript prepared, and having all this completed before the mandatory time arrives for having the direct appeal filed. This convoluted procedure, the Supreme Court found, does not actually provide a defendant with a meaningful opportunity to have the ineffectiveness claim heard on direct appeal. In fact, the motion for new trial procedure could conceivably default a defendant’s direct appeal review for failing to meet the deadlines associated with the filing of an appeal. That’s why the Supreme Court held that the Martinez mandate applies to Texas because there is no distinction between (1) a State that refuses to hear an ineffective assistance claim on direct appeal and a (2) a State, like Texas, that permits the issue to be heard on direct appeal but erects procedures which effectively denies a meaningful review of the issue.


The Trevino ruling had an immediate impact. Just days after the Supreme Court handed down Trevino, the court remanded six more death penalty cases back to Texas courts for a determination of whether they had been denied effective assistance of counsel in their post-conviction review proceedings.


But all is not quiet on the actual innocence front. The U.S. Supreme Court in two other cases, concerning Floyd Perkins and Rosa Jimenez, refused to squarely decide whether a state prisoner can present a “free standing claim” of actual innocence in federal habeas proceedings (here, here and here). What does “actual innocence” actually mean? It means quite simply that an innocent person has been wrongfully convicted for a crime that he/she did not commit. It is a subject-matter we have devoted significant attention to in recent years, given that 302 persons have been exonerated through DNA evidence since 1989.


We have previously explained that a state prisoner who has been wrongfully convicted, and who has had his wrongful conviction upheld on direct appeal, and who has exhausted all of his state post-conviction remedies, has one last opportunity to establish his/her innocence in a court of law: an application for a writ of habeas corpus in federal court. But that is not a friendly venue for state prisoners, even for those wrongfully convicted for a crime they did not commit. All applications for federal habeas relief by state prisoners are governed by the Rules Governing Section 2254 Cases. Put simply, this means federal courts may consider a state prisoner’s claim of unlawful custody only if his/her conviction was obtained in violation of the Constitution, laws, or treaties of the United States.


State prisoners first face the daunting task of surmounting the federal rule, under 2254(e)(1), that all state court decisions upholding a conviction are presumed to be correct. Then he/she must show, under 2254(d), that any state court decision addressing a federal constitutional claim is either “contrary to” or “an unreasonable application” of a “clearly established” U.S. Supreme Court “precedent.” Making these procedural obstacles even more daunting, a state prisoner does not enjoy the right to present a “free-standing” claim of actual innocence in federal habeas proceedings; he must support the innocence claim with an “independent” constitutional violation. The U.S. Supreme Court, in Herrera v. Collins, qualified this rule somewhat by leaving open the possibility that, in a capital case, “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of the defendant unconstitutional.”


But an innocent state prisoner not under a death sentence spending the rest of his/her life in prison is not per se unconstitutional. Innocence alone is not enough. It must be accompanied by a clear showing of a constitutional violation before a federal habeas court will even consider the issue. Since Herrera was decided in 1993, the Supreme Court has consistently refused to change this position, thereby not recognizing actual innocence as a “free-standing” claim warranting independent review: Henry v. Skinner (2011), District Attorney’s Office v. Osborne (2009), In re Troy Anthony Davis (2009), House v. Bell (2006), and Schlup v. Delo (1995).


The U.S. Supreme Court earlier this year once again in the Jimenez case refused to resolve the “free-standing” actual innocence issue. The refusal is significant because prominent legal scholars from across the country, as well as Dallas County District Attorney Craig Watkins and the Mexican government,  urged the Court to do so in the Jimenez case—a case that has drawn national and international media attention because of her credible claim of “actual innocence.” The Hispanic caregiver was convicted in 2003 in connection with the tragic death of a 21-month-old child in her care. She was given a 75-year sentence for felony murder and a 90-year sentence for the injury to a child. On direct appeal to the Third District Court of Appeals, sitting in Austin, Jimenez raised several constitutional violations but the thrust of her appeal was that the evidence presented by the State had been insufficient to support the guilty verdict—a backdoor route to an “actual innocence” claim on direct appeal. The facts surrounding this issue are extensive—in fact, too extensive to summarize, either from the State or Jimernez’s perspective, to fully appreciate what occurred in the home of Victoria Gutierrez on January 30, 2003. These facts were comprehensively detailed by the appeals court in its September 2007 decision denying Jimenez’s direct appeal.


The Jimenez case was ultimately assigned to then-Judge Charlie Baird, who gained national prominence in the Timothy Cole case. Judge Baird conducted an exhaustive evidentiary hearing in December 2010 in the Jimenez case. According to a January 8, 2013 Austin Chronicle report, the hearing featured “a phalanx of top experts” who testified that the Gutierrez child’s choking death “was more likely a tragic accident” than a felony murder. These experts were contrasted by the sole expert who testified for Jimenez at trial and who had a “meltdown on the stand” and who “cursed at prosecutors in the hallway”—behavior used to “discredit him on the stand.” Based on the convincing and compelling testimony given by the experts at the hearing, Judge Baird recommended to the Court of Criminal Appeals that Jimenez was entitled to a new trial. That court, however, rejected Judge Baird’s conclusion, ruling last April that there is no “clear and convincing” evidence to support Jimenez’s claim of innocence.


Jimenez’s attorneys sought certiorari review before the U.S. Supreme Court last summer. And leading legal scholars, like University of Texas law professor Jordan Steiker, saw Jimenez’s case as an excellent opportunity for the Supreme Court to not only recognize but determine what legal standard should be applied in deciding “free-standing” claims of actual innocence. The host of legal scholars and Mexican government notwithstanding, the court refused to do so.


The Supreme Court in the Perkins case agreed to decide whether a state prisoner claiming “actual innocence” when petitioning for a federal writ of habeas corpus must do so with “reasonable diligence.” This originated out of the State of Michigan and arrived at the Court by way of the Sixth Circuit Court of Appeals. A few background facts are necessary to understand the rather thorny procedural and constitutional issues the case presents to the High Court. First, Perkins was convicted of a murder that occurred in Flint, Michigan on March 4, 1993. There are a number of undisputed facts about the murder. Perkins, Damarr Jones, and Rodney Henderson attended a house party together on the night of March 4. They left the party together. Later that evening Perkins and Jones arrived at another friend’s house where they played video games. The issue in the dispute is how Henderson was killed between those two points in time. Jones said that as the trio walked down a wooded trail from the first house to the second, Perkins pulled out a knife and stabbed Henderson to death. Perkins said that the trio stopped at a store to buy alcohol and cigarettes; that Jones and Henderson left together while he remained in the store to pay the bill; and that he found Jones standing under a streetlight in bloody clothes.


The police, and ultimately the district attorney, believed Jones’s version of the events. Jones testified against Perkins who was convicted of killing Henderson. The State’s conviction rested almost exclusively on Jones’s testimony. It was a flimsy case at best. Neither version of the events surrounding Henderson’s murder offered by Jones or Perkins passes the normal test of logic. And that’s what makes the issue before the Supreme Court so critical: Jones’s testimony could be either the plausible truth or a patent lie.


Perkins’ conviction became final on May 5, 1997, and thus he had until May 5, 1998 to seek habeas relief under section 2244. For whatever reason, he did not seek federal habeas relief during that inflexible one-year limitation period. For all practical purposes, he became “time barred” from ever filing a federal petition for writ of habeas corpus under section 2254.

But three significant developments occurred before and after Perkins’s conviction became final on May 5, 1997 that calls into question the section 2244 time bar. First, on January 19, 1997, Perkins’s sister, Rhonda Hudson, signed an affidavit in which she swore she had heard Jones brag about stabbing Henderson and taking his clothes to the cleaners after the murder. The record does not indicate why Perkins failed to use this affidavit as a basis for timely seeking federal habeas relief during the one-year limitation grace period.


The second event occurred on March 16, 1999 when Demond Louis, a younger brother of one of Perkins’s friends, signed an affidavit in which he swore that Jones had admitted to him on the night of the murder that he (Jones) killed Henderson; that Jones was wearing orange shoes, orange pants, and a colorful shirt; and that he saw blood on Jones’s pants and shoes.


The third event occurred on July 16, 2002 when Linda Fleming, a dry-cleaning clerk, signed an affidavit in which she swore that a man matching Jones’s description came into the cleaners around the date of the murders asking whether blood stains could be removed from clothing that matched the description of the clothing Louis had described Jones was wearing on the night Henderson was killed.


On June 13, 2008, Perkins filed a petition for a writ of habeas corpus pursuant to section 2254 in the U.S. District Court for the Western District of Michigan. He raised the following issues for relief: sufficiency of evidence, trial procedure, prosecutorial misconduct, jury instruction and ineffective assistance of counsel. While we have no direct evidence of this, we surmise that Perkins waited more than ten years to file his federal habeas petition because he was exhausting one or more of the foregoing issues at the state level. There are times when the exhaustion of remedies at the state level can take years.

In any event, a U.S. Magistrate recommended that Perkins’s petition be denied as time-barred under AEDPA’s one-year statute of limitation. Perkins’s objected to this recommendation. His objection was based on AEDPA’s “new evidence” limitation which extends the one-year limitation from “the date on which the factual predicate of the [new evidence] claim or claims presented could have been discovered through the exercise of due diligence.” In other words, the one-year limitation is tolled in cases where “new evidence” has been discovered through due diligence and begins to run anew for one year after discovery of the new evidence.  Put simply, Perkins’s filed his federal habeas petition almost five years after the “new evidence” limitation had expired on July 16, 2003—one year after Linda Fleming’s affidavit. To get around this “new evidence” time bar, Perkins suggested that the “new evidence” limitation should be equitably tolled because he is “actually innocent” of murdering Henderson.


Not only did the district judge uphold the magistrate’s time bar recommendation but added that the three affidavits were not the kind of “new evidence” upon which an “actual innocence” claim could be based under sections 2244 and 2254. Further, the district judge noted that this affidavit-evidence had been substantially available to Perkins before his trial and that it merely reinforced his defense, which the jury had rejected, that Jones had framed him for Henderson’s murder. And to nail down the coffin and snug the “new evidence” away in the ground, the district judge admonished that even if the three affidavits fell within the ambit “actual innocence evidence,” they would be time-barred because Perkins had not pursued them with “reasonable diligence.” It was that last observation that set up the Supreme Court’s involvement in the case because the district judge relied upon the 2005 decision by the High Court in Pace v. DiGuglielmo which held a petitioner seeking to equitably toll a statute of limitations “must demonstrate” that he has been “diligent” in pursuing his rights.


Perkins made a timely request to the Sixth Circuit to appeal the district judge’s denial of his writ application. On February 24, 2010, the appeals court granted Perkins’s request and agreed to hear his appeal. In a March 1, 2012 decision, the Sixth Circuit made the preliminary observation significant to Perkins’s claim, and applicable to any state prisoner making an “actual innocence” claim; namely, that AEDPA’s statute of limitation can be equitably tolled only if a state prisoner is “factually innocent,” not whether “there was insufficient evidence to convict him.” The district judge had ruled that Perkins did not make this showing, but his analysis in reaching that conclusion was “limited to two sentences.”


Thus, the Sixth Circuit elected to preclude review of whether Perkins had met the threshold showing that he is “factually innocent.” Instead the appeals court confined its review to the sole issue of whether a state prisoner who makes a “credible showing of actual innocent must also make a showing of reasonable diligence in order to equitably toll AEDPA’s statute of limitations and have [his] claim heard on the merits.” The appeals court had previously held in Souter v. Jones that “where an otherwise time-barred habeas petitioner can demonstrate that it [is] more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims.” Defined, this means that the “gateway” of an actual innocence claim from section 2244 to section 2254 “does not require the granting of the writ, but instead permits the petitioner to present his original habeas petition as [as if] it had not [been] filed it late.” In effect, the court held that a state prisoner who makes a credible claim that he is “factually innocent” based on new evidence is entitled to a second bite of the federal habeas apple.

In its May 28, 2013 decision in the Perkins case, the U.S. Supreme Court vacated the Sixth Circuit’s ruling, finding the appeals court had erred because it eliminated “timing as a factor in evaluating the reliability of the affidavits.” The Supreme Court effectively held that its previous holding in Schlup v. Delo governing the “gateway” to actual innocence is adequate in deciding claims like those presented in Perkins’s case. In other words, there is still no right to present a “free standing” actual innocence claim in federal habeas proceedings.


Following on the heels of its Perkins decision, the Supreme Court handed down a decision in the Alonzo Jay King case; namely, when the police make an arrest supported by probable cause, they can detain, take, and analyze a cheek swab of the arrestee’s DNA. The court reasoned that this DNA procedure is no different than fingerprinting and photographing a criminal suspect, both of which have been held reasonable under the Fourth Amendment. That’s what happened to King in 2009 following his arrest on assault charges: a cheek swab taken pursuant the Maryland DNA Collection Act. That swab matched one taken in an unsolved 2003 rape case for which King was subsequently convicted. King unsuccessfully argued before the Supreme Court that the Act violated the Fourth Amendment.


While mandatory DNA cheek swabs in all felony arrests might result in some wrongfully convicted inmates being declared innocent, we must agree with Justice Scalia’s forceful dissent that this process places law enforcement in an entirely new dimension. He opened his dissent (which was joined by Justices Sotomayer, Ginsburg and Kagan) with this observation:

“The Fourth Amendment forbids searching a person for evidence of crime when there is no basis for believing the person is guilty of a crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicion-less search, it has insisted upon a justifying motive apart from the investigation of crime.


“It is obvious that no such non-investigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

Well said.