John Oliver explored how difficult it is to appeal a wrongful conviction in the US, even if there’s compelling evidence of innocence, on Last Week Tonight.
Though the constitution contains the writ of habeas corpus to protect against unlawful imprisonment – “basically, you have a right to challenge your incarceration, and you can do that in state and federal court,” Oliver explained – there’s a major limitation: in general, innocence itself is not an appealable issue.
You can only appeal based on evidence that wasn’t available during your original trial or a claim that your constitutional rights were violated during it. “But that’s already a long shot,” Oliver said. “When the whole criminal justice system is geared toward getting a conviction, it has very little interest in seeing its work undone.”
For example, one of the few ways to get a post-conviction appeal is to establish new evidence, but you still have to prove that the new evidence would have changed the outcome of the original trial. “And prosecutors will fight that notion hard,” Oliver said, pointing to an example from the so-called West Memphis Three, who were wrongfully convicted of murdering children in the early 90s and who tried to get a new trial based on DNA evidence in 2010. An assistant attorney general argued against the appeal in the state supreme court, saying the introduction of DNA evidence threatened “the criminal justice system’s interest in finality”.
“Hold on – the harm is to the finality?” Oliver fumed. “But if the final decision could be wrong, you should want to make sure that you get it right. There’s a reason that La La Land didn’t just keep the Oscar after Faye Dunaway and Warren Beatty skin-smiled their way through that mistake.”
Moreover, most judges defer to prosecutors’ arguments “without even changing the heading”, Oliver said; one study in the largest county in Texas found that judges adopted the prosecutors’ findings verbatim in 96% of their rulings. “And if at this point it seems like a whole system is set up to preserve its process even at the cost of human life,” he added, then take the case of Joseph Amrine, wrongfully convicted in 1986 for the stabbing death of another inmate.
During his 2003 appeal, the Missouri supreme court justice Laura Denvir Stith said: “You’re suggesting if we don’t find there’s a constitutional violation, that even if we find that Mr Amrine is actually innocent, he should be executed?” To which assistant attorney general Frank Jung replied: “That’s correct, your honor.”
“Holy shit,” Oliver exclaimed. “You know you’re on the wrong side of an argument when you’re asked, ‘Should innocent people be executed?’ and you say, ‘That’s correct, your honor.’ That’s the kind of question that only has one right answer, like ‘is the queen dead?’ The obvious answer to that being ‘yes, absolutely, she’s been dead since 2007, and it’s a good thing.’”
Federal courts can step in to offer relief, but only if state courts are so out of line that “no fair-minded judge would agree” to the ruling, which is “an incredibly high bar to clear”, said Oliver. “Reasonable people disagree all the time on issues like which way the toilet paper roll should go or how a tortoise should wear clothes. Is it over the shell or under the shell? There’s a vibrant discussion to be had here! There will be dissenting voices.”
This is because federal courts are hamstrung by AEDPA, or the Anti-Terrorism and Effective Death Penalty Act, a 1997 law passed in the wake of the Oklahoma City bombings that was intended to keep death-row terrorists like Timothy McVeigh from endlessly appealing their convictions.
Besides the high bar of reasonable dissent, the law also imposed a strict one-year deadline to file a federal appeal once the conviction is finalized. “Which I know might sound like a lot of time to you, but it really isn’t,” Oliver explained. “A federal appeal is a massive undertaking, often involving doing new research, speaking to experts, witnesses, previous attorneys and investigators. One year can not be enough.” Post-AEDPA, the deadline has been missed 80 times in death row cases. “Eighty times death row prisoners went to the trouble of filing an appeal,” said Oliver, “only to be told, ‘Sorry, too late! It doesn’t count.’
“All of that brings us to today, where many wrongfully convicted people are still locked up with a racially disproportionate impact,” he continued. According to a 2017 report by the national registry of exonerations, innocent black people are about seven times more likely to be convicted than innocent white people.
So “with a system so fundamentally fucked, what do we do?” Oliver posed, before arguing for the repeal of AEDPA, which “we should do that as soon as possible.
“In addition, we should continue to address all of the many factors that lead to wrongful convictions in the first place,” he added, “and when they do happen, we need to make sure that we’ve elected prosecutors who will undertake conviction integrity reviews and governors who will use their pardon power to undo the state’s mistakes.”
It needs to be a priority, he argued, “because right now we have a system where people can be wrongly convicted, with bad defense attorneys, and left to fight in a convoluted appeals system with little to no help.
“At which point it really feels like our system is essentially guilty until proven rich or lucky,” he concluded. “And that has to change, because we cannot keep letting the most vulnerable be casualties of a system that cares more about quick and final decisions than actually correct ones.”