While being innocent may not seem to be an exotic defense to most people who are not involved with the criminal justice system, our nation's legal history forbids the use of innocence as a defense at the appellate level. There are New York judges and members of the New York State Senate that are starting a new trend of allowing "actual innocence" as a an appellate claim.
Generally, a defendant seeking to reverse a conviction must prove that the proceedings within the judicial system violated the defendant's constitutional rights in order to earn the reversal. Often, the presentation of new evidence of innocence is not permitted unless the defendant proves that the evidence would have been impossible to present at the original trial. The basis for this approach of prohibiting actual innocence as a defense in the theory that our judicial system needs and values finality. If convicted defendants were permitted to re-argue their innocence at every level, prosecutors would essentially be required to convict defendants three or four times in order to be certain that the guilty verdict would prevail. The sentencing could be equally confused by endless appeals on the grounds of actual innocence.
The Supreme Court of the United States took an extreme view of the limits of actual innocence in 1994. In that year, they ruled by a 6-3 vote that a defendant's actual innocence claim, even when endorsed by the statements of the state that sought his conviction, was not a proper basis for an appeal. To add to the drama of that 1994 case, the defendant was executed by the state of Texas in the early days of 1995 after losing the appeal in 1994. In essence, the Supreme Court ruled that being innocent is not an appellate defense even if the prosecutors tell other juries in other cases that you are innocent in order to convict other defendants of the crime for which you are scheduled to be put to death. The state of Texas, in the 1994 case, even argued in another trial that the executed defendant was unaware that the actual murder had a weapon in the moments prior to the crime in question and that the executed defendant was not in the building with the victim at the time of the killing.
One Supreme Court Justice has stated that executing a defendant known to be innocent is very similar to murder by the state. The 1994 case referenced above demonstrates how an innocent defendant can be executed nonetheless.
Jesse DeWayne Jacobs was executed on January 4, 1995, despite the fact that Texas prosecutors knew that he did not shoot Etta Urdiales in 1986. In speaking to the jurors that would sentence Jacobs to death, Montgomery County District Attorney Peter Speers said, "The simple fact is that Jesse Jacobs and Jesse Jacobs alone killed Etta Ann Urdiales." However, another prosecutor said that Jacobs' sister, Bobbie Jean Hogan, actually killed Urdiales. At Hogan's trial, the prosecutor also said that Jacobs "[didn't] know that Bobbie had a gun." Texas convicted Hogan of involuntary manslaughter in the Urdiales killing, and Hogan received a ten year sentence. Nevertheless in Jacobs v. Scott, No. 94-7010, the U.S. Supreme Court, by a 6-3 vote, allowed Texas to execute Jacobs. Jacobs was killed by lethal injection on January 4, 1995.
Even in light of this new evidence, Texas Attorney General Dan Morales refused to acquiesce to a new sentencing hearing, relying on Supreme Court precedents that limit death row inmates to raising constitutional questions on appeal. Since "the prosecution's subsequently stated belief that Hogan was the trigger person is not new evidence, newly discovered or otherwise," Morales asserted that Jacobs' death sentence should stand. Two different persons were convicted for shooting the same person. Upon review, the United States Court of Appeals for the Fifth Circuit refused to overturn Jacobs' death sentence, holding that "it is not for us to say" that the jury had made a mistake. The Supreme Court denied review, with Justices Stevens, Ginsburg, and Breyer dissenting. Stevens wrote, "It would be fundamentally unfair to execute a person on the basis of a factual determination that the state has formally disavowed. I find this course of events deeply troubling." Stevens was particularly moved by the fact that the State itself vouched for the recantation of Jacob's confession.
Texas had full knowledge of the fact that Jacobs was not guilty of the crime that he was sentenced to death for committing. Texas sentenced the person who actually killed Urdiales to ten years in prison, while executing Jacobs.
New York's Age of Innocence
In New York State, two recent court decisions have endorsed the concept of actual innocence as an appellate claim, and the New York State Senate has begun to pursue legislation that would create an actual innocence defense.
One of the decisions, issued on November 9th of this year, states that the appellate judge was persuaded by the defendant's submission that the defendants was innocent, and the judge follows that finding with a dismissal of the conviction with prejudice (meaning that the defendant cannot face a new trial for the crime in question). In July of this year, a similar case resulted in the tossing aside of a conviction in New York State. Both defendants had spent more that a decade imprisoned for crimes that they did not commit (18 years and 12 years, respectively), and both were released based on "actual innocence" rather than constitutional violations.
In October of this year, members of New York State Senate introduced legislation entitled the Actual Innocence Act of 2009. The legislation, if enacted, would establish the appellate claim of actual innocence for convicted defendants in New York State and prevent the abuse of law by permitting judges to ignore evidence of actual innocence if the defendant intentionally withheld evidence of his or her own guilt during the trial. “Prolonged and unnecessary incarceration of the innocent is detrimental to all - the wrongly incarcerated, society, the criminal justice system and the victim. I can only hope that the proposed legislation ensures that others wrongly incarcerated like me, never have to suffer like I did in securing their freedom through the criminal justice system,” said Marty Tankleff, who was wrongfully convicted for the murder of his parents based on a false confession.
The most important "actual innocence" effort now is to promote the passage of this legislation.