Probably the most difficult constitutional claim to establish in a federal habeas corpus proceeding is one of “actual innocence.” This premise was reinforced by the Ninth Circuit Court of Appeals on August 19, 2014 in Jones v. Taylor.



The background facts of the case are simple. In 2003, Scott Douglas Jones was convicted in the State of Oregon on three counts of unlawful sexual penetration in the first degree. The victim in the case was his sister. Jones was sentenced to three concurrent 100-month terms. The sister was the primary witness against Jones. Two other witnesses—Jones’ father and the father’s girlfriend—provided corroborative testimony, although they did not actually witness the sexual abuse events.


The alleged sexual abuse—Jones inserting his finger into his sister’s vagina—occurred in late 1998 or early 1999. The victim was nine years old at the time. She apparently first raised the abuse allegation in a videotaped interview with a mental health professional in 2000 and it was reported to law enforcement authorities in 2002. In 2010, the victim recanted her testimony. In a sworn affidavit, she said that she had been raised in a conservative household in which no sex education was provided. As she grew older, she came to realize through a better understanding of her own anatomy that her brother had not actually penetrated her vagina with his finger but had only touched her genitalia.


The father and his girlfriend also recanted their testimony that Jones had told them he “admitted” to the “whole thing” with his sister. He and the girlfriend said in sworn affidavits that upon reflection they came to realize it was not an admission that Jones had inserted his finger into the victim’s vagina but that he had only touched her genitalia.


Armed with these affidavits of recanted testimony, Jones in December 2010 filed an in proper person writ of habeas corpus in the U.S. District Court in Portland. The court appointed counsel to represent Jones. In August 2013, counsel filed a motion for release pending resolution of the habeas proceeding. Three weeks later the court conducted a hearing on the motion, hearing testimony from Jones and his father. Jones testified he never inserted his finger into his sister’s vagina, although he admitted touching her genital area. Ken Jones testified that his trial testimony that his son had admitted to inserting his finger into his daughter’s vagina had been incorrect. After hearing this testimony, the court continued the hearing until October at which time it heard the recanted testimony of the victim and Ken Jones’s girlfriend.


Based on the recanted testimony of Ken Jones and the victim, the court concluded it had the authority to consider what is called a “freestanding actual innocence” claim and thus concluded that Jones had made a sufficient showing of “actual innocence on the unlawful sexual penetration charge to merit habeas relief.” The court then ordered the State of Oregon to release him from custody and any other restraints flowing from the wrongful conviction.


The State appealed the district court’s decision to the Ninth Circuit. At the outset, the appeals court noted it had not resolved the issue whether a freestanding actual innocence claim in a non-capital case can be raised in a habeas proceeding. The court, however, said it would not address the issue in Jones’s case because it found he had not made a “sufficient showing” to merit habeas relief.


In 1995, the U.S. Supreme Court in Schlup v. Delo established the “gateway” through which a procedurally barred claim must traverse under federal habeas jurisprudence. That gateway is a showing of actual innocence. Applying Schlup and its progeny, the Ninth Circuit in 1997 in Carriger v. Stewart held that a freestanding actual innocence claim is “’extraordinarily’ high and … the showing [for a successful claim] would have to be ‘truly persuasive.’”

This means, the court said, a state prisoner must “go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.”


The appeals court conceded that this is not a “precise” standard for reviewing freestanding actual innocence claims. Thus, the court said it will generally follow the lead of Schlup that “In order to pass through the Schlup actual innocence gateway, a petitioner must demonstrate that ‘in light of new evidence, it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt…’ This new evidence must be reliable, and the reviewing court ‘may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence …’ And the federal habeas court ‘must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the rules of admissibility that would govern at trial … based on this total record, the court must make a probabilistic determination about what reasonable, properly instructed jurors would do.’”


Under this demanding “probabilistic” standard, recanted testimony will seldom pass through the Schlup “gateway.” The U.S. Supreme Court has recognized for more than three decades that recantation testimony must be viewed with “great suspicion.” The Ninth Circuit put it a different way. The court said “recanting testimony is easy to find but difficult to confirm or refute” which is why courts generally believe that post-trial recanted testimony does not “render earlier [trial] testimony fake.”


Against this harsh, forbidding legal terrain, the appeals court concluded that even if it were to accept the recanted testimony by the three witnesses in Jones’s case as truthful, it was insufficient to demonstrate that Jones is actually innocent. Two of the witnesses did not witness the crime, and, therefore, their recanted testimony should be accorded “little weight” in the innocence analysis, the court said. And with respect to the victim’s recantation, the appeals court pointed out that she waited thirteen years before she came forward with her recantation. “A reasonable juror,” the court concluded, “could very well believe that S.J.s memory of the abuse faded or changed in the more than thirteen years since the incident occurred and, for that reason, credit the testimony that was closer to the abuse.”


More often than not, there is no cure for a lie told in a courtroom. It is easier for courts to live with the lie than face the truth. All the State needed to secure a conviction against Jones was the testimony of his sister. And what of the fact that thirteen years later she said she got it wrong?  In effect, the court reasoned that even if her trial testimony was a lie, it was of no consequence. It was more convenient for the court to accept the lie than deal with the implications of the truth—a conviction reversed, a prisoner released from prison, and a defendant absolved of all guilt.


The modern judicial “gateway” to actual innocence is more difficult than the gateway to the American west in the 19th century.