Habeas Corpus

  • April 14, 2011
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

  • April 11, 2011
    Guest Post

    By John Hollway, co-author of a book about John Thompson, Killing Time: An 18-Year Odyssey from Death Row to Freedom.

    While we as a nation have been focused on the economy, the Middle East, and the tragedy in Japan, a majority of the Supreme Court has been busy limiting the ability of Americans to hold elected officials – specifically, District Attorneys’ offices - accountable for repeated and blatant prosecutorial misconduct that results in the unjust imprisonment of innocent men and women.  The case in question is Connick v. Thompson, a case decided 5-4 late last month.

    Absolute immunity has long been the law of the land for individual prosecutors who are acting in their core prosecutorial function. This makes sense; a prosecutor who is honestly and morally pressing criminal charges against someone he or she truly believes is guilty based on the evidence should not have to worry about a retaliatory lawsuit if they fail to get a guilty verdict.

    The vast majority of prosecutions fall into the “honest and moral” category. Such conscientious self-policing was often not the case, however, in the District Attorney’s Office in Orleans Parish, La., run for almost 30 years by District Attorney Harry Connick, Sr. A disturbing number of convictions secured by Connick’s lawyers have been reversed due to the failure of his prosecutors to provide exculpatory evidence to defense lawyers as required by the Constitution and the 1962 Supreme Court case of Brady v. Maryland.  (Four published opinions cite Brady violations on Connick’s watch between 1974 and 1988, an astonishing number when one considers how rarely judges embarrass prosecutors in writing.)  And revelations of additional cases from the 1980s continue to surface today.

    This leads us to John Thompson – arrested in 1985 at age 22 and charged with murder and an unrelated armed robbery. He was convicted of both crimes and sentenced to death. In 1999, with his appeals exhausted and only weeks before his execution, his lawyers unearthed a blood test, conducted by Assistant DAs before his trials but never disclosed to the defense. The blood test proved Thompson’s innocence in the armed robbery; subsequent investigation revealed a number of material witnesses to the murder known to prosecutors and never disclosed to the defense. Thompson secured a retrial in 2003, and was rapidly acquitted. He was released in 2003 after 18 years of unjust imprisonment, 14 of them on Death Row.

    How did this happen?

  • March 17, 2011
    Habeas Corpus in America
    The Politics of Individual Rights
    Justin J. Wert

    By Justin J. Wert, an assistant professor of political science at the University of Oklahoma.
    On March 7, 2011, President Barack Obama signed an executive order authorizing military commissions to begin again at Guantanamo Bay after a two-and-a-half-year hiatus. But while the President's order reminded the country of his now-hollow promise to close down Guantanamo within his first year in office, it also served to remind us of the political and legal debates over the writ of habeas corpus that ensued immediately after the first detainees were brought to Camp X-Ray in January 2002. Indeed, the President's Executive Order states clearly that:

    Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.

    Habeas Corpus in America: The Politics of Individual Rights accounts for the development of one of the most important - but least understood - components of American constitutional law. Scholars, legal practitioners, politicians, and citizens alike, hold deeply divergent views about the writ's historical development and normative function.

    To complicate matters even more, almost all existing studies of habeas divide their analysis of the Great Writ of Liberty into so-called "extraordinary" periods (like war and crisis) and "ordinary" periods (like its evolving use as a remedy for challenging criminal convictions in the United States), making it even more difficult to imagine a systemic and coherent account of the writ's role in American political development more generally. As a result, we still tend to ask very different questions - and therefore always produce very different answers - about habeas' function in American constitutional law, theory, and history.

  • March 7, 2011
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law.
    The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v. Switzer. Henry Skinner was convicted and sentenced to death in Texas in 1995 for the murder of his girlfriend and her two sons, whom he lived with. Skinner claimed he was home, but did not commit the murders since he was incapacitated by large amounts of codeine and alcohol. Before trial, the State tested some crime scene evidence, and some of it inculpated Skinner, but some did not. Inexplicably left untested were key pieces of evidence, including knives found at the scene, an axe handle, vaginal swabs, fingernail clippings, and hair samples.

    In the meantime, in 2001 Texas passed a DNA access statute, which makes available post-conviction testing to prisoners who satisfy its criteria, including that there is a "reasonable probability" that the results could change the outcome. The Texas Court of Criminal Appeals repeatedly denied his motions seeking DNA tests on all of those other items. They blamed Skinner's trial lawyer, saying that it was a "reasonable" strategy to fail to request the DNA tests at the time of his trial, since the results might just have further inculpated Skinner. Skinner could be executed without any tests done on that crucial crime scene evidence - unless the federal courts would reverse the rulings by the Texas courts. He brought a civil rights action seeking to do just that, but the State argued federal habeas corpus was the exclusive avenue for such a claim.

    These boundary issues did not come up often before. Both the habeas corpus statute, 28 USC § 2254, and the civil rights statute, 42 USC § 1983, provide avenues for litigation of constitutional violations by state actors. Prisoners often used both. However, the habeas statute has been encumbered with a raft of Supreme-Court made restrictions, together with limits added by Congress under the Antiterrorism and Effective Death Penalty Act. While the Court has limited access to remedies under Section 1983 as well, Section 1983 does not have unfair timing rules. If one suffers separate constitutional violations over time, one can bring multiple actions.

    Not so under federal habeas corpus. If new evidence of constitutional violations or of innocence comes to light only years after a conviction, it may be impossible to file a federal habeas petition. Any number of rules, from the AEDPA statute of limitations, to the dreaded "successive petition" rule may rule out access to a federal court. Many of the innocent people who have been exonerated by DNA tests had to wait years to get those tests; they waited on average 15 years to be exonerated. I describe their difficult path to exoneration in a book that has just been published by Harvard University Press, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. More generally, the book explores what went wrong in the first 250 DNA exonerations. Selective testing of the crime scene evidence was just one of many problems with the way that the forensics was handled and presented in the cases of those innocent people.

  • October 15, 2010
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law and author of the forthcoming book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.
    This week the U.S. Supreme Court heard arguments in Skinner v. Switzer, concerning a request for DNA testing by an inmate, convicted of murders and on death row in Texas. Prosecutors have opposed the DNA tests and intend to proceed with an execution.

    Why does this scenario sound familiar? Because Hillary Swank is currently starring in a major motion picture about the true story of how Betty Anne Waters put herself through law school and fought for years to obtain DNA tests that ultimately proved her brother’s innocence?

    Because just last term the Court decided Osborne v. District Attorney’s Office, in which the state of Alaska successfully opposed DNA tests that it conceded could resolve the question of an inmate’s innocence?

    Because in 2006, the Court decided House v. Bell, in which a death row inmate sought relief based on evidence of innocence including DNA, and following the Court’s remand, he obtained DNA tests that led to his exoneration?