Habeas Corpus - 55% Innocent

I have been spending a lot of time around here (and here and here and, I guess, here too) talking about the future of the actual innocence claim in the Troy Davis case.

But, of course, that is not the only actual innocence case out there. Last week, there was a really interesting actual innocence case in New York.

It's called, Cole v. Walsh, 05-CV-736, 2009 WL 3124771 (EDNY Sept. 29, 2009) (SLT).

This is the habeas proceeding following the important state court decision in People v. Cole, 1 Misc.3d 531 (Kings Co. Sup. Ct. 2003), in which the state court judge concluded that an actual innocence claim exists under the New York State Constitution. More on this decision in a second.

But first, let's move through the history of the case.

Cole had been convicted of first-degree manslaughter based on the shooting of Michael Jennings on a street corner in Brooklyn. But the evidence at trial was far from overwhelming. The initial descriptions of the shooter did not match Cole. While two eyewitnesses, Charles Ford and Jeffrey Campbell, identified Cole as the shooter, another eyewitness identified someone else as the shooter. That same eyewitness also said that the shooter was a man known as "Scotty," but the police were never able to connect that name to Cole. Campbell received a benefit in his criminal case in exchange for his testimony against Cole. On the other hand, Ford testified that he had overheard an argument between Cole and the victim over drugs the night before the shooting. So there is a possible motive.

In his defense, Cole presented his mother as an alibi witness. He also called another eyewitness who testified that appellant was not the shooter.

So the evidence at trial did raise significant questions about Cole's guilt.

Cole filed a series of state post-conviction motions and then a federal habeas petition that was eventually dismissed as untimely.

A couple years later Cole filed another state post-conviction motion, this time on the ground of newly discovered evidence. A hearing was held, at which four eyewitnesses testified that appellant was not the shooter. Instead, they all identified the same Guyanese man as the shooter. However, each of these witnesses had criminal records and, according to the district court, there were some inconsistencies in their testimony. In addition to these witnesses, Cole presented a videotaped statement from Campbell who admitted that he lied. An investigator for petitioner testified that Ford had recanted to him. However, Ford later testified that he never recanted and he stood by his testimony.

The hearing resulted in the important Cole decision mentioned above. As an aside, I simply cannot comprehend the district court's citation of this decision. Apparently, the citations are to the actual written order, as opposed to the published decision. Not sure why the court would do it that way. But there's something even more confusing. Even though the court cites to the pages of the actual order as the main cite, it follows up most of those cites with a citation to 601 N.Y.S.2d 352. That is not the national reporter cite for this particular Cole decision. The actual cite is 765 N.Y.S.2d 477. Rather, the citation that the court keeps using is to the Second Department's decision in Cole's direct appeal, which really has nothing to do with what the DJ is talking about. Just had to mention that.

In the state court decision in Cole, the state court found that there is no actual innocence claim under the federal constitution but that an actual innocence claim exists under the State constitution. To establish such a claim, the petitioner has to show his innocence by clear and convincing evidence.

The court goes through all of the evidence, both at trial and at the hearing, and says that petitioner is "probably innocent (more likely than not approximating 55%)." That's pretty incredible, isn't it? 55% innocent. I'll just let that sit there for a second.

But 55% innocent is not enough. Needs to be clear and convincing, which I guess is 75%. Maybe 80%. Or Maybe 65 or 70. Just not 55. Motion denied.

Now on to the habeas proceeding. From the outset, the DJ clearly is hostile. She refers to this petition as petitioner's third habeas petition. That's true, as she mentions that the first two were basically consolidated and then dismissed as time-barred. However, it's not particularly relevant or compelling as she later notes that the Second Circuit granted petitioner authorization to bring the petition. So who cares how many he has filed? He has met the standard to bring another. And that should have been right up there in the intro. In fact, it's a big deal when the Second Circuit grants authorization. It rarely happens. Instead, this really important fact is buried at the end of the factual discussion. One would think a DJ would be excited to get such an interesting case.

After reviewing the facts, the DJ gets into the law and does a real nice job of setting out the state of the law on actual innocence (similar to my discussion here). The end result: no actual innocence claim as of yet, but she will assume that one exists.

She then discusses what the standard would be to establish such a claim. I left that discussion out of my prior post. But that's obviously important here. She points out that it would necessarily have to be a very high standard -- the Supreme Court indicated as much in Herrera v. Collins, 506 U.S. 390 (1993). This would also have to be higher than the standard for a "gateway" innocence claim in order to overcome a procedural default , a standard set out in Schlup v. Delo, 513 U.S. 298 (1995).

The DJ concludes that petitioner had failed to meet even the lower Schlup standard. The DJ is highly skeptical of the innocence evidence; indeed, far more skeptical than the state courts. In comparing the "questionable evidence" of innocence against Ford's consistent testimony, the DJ concludes that a reasonable juror could still conclude that petitioner was guilty. Put in a more confusing manner, the DJ states, "Weighing the evidence in the record, this Court could not say that it is probable that no reasonable juror would find Petitioner guilty." Took me two reads to figure out that sentence. Actually, I am still having a hard time deciphering it. That is not a slight against the DJ. It's just an application of the Schlup standard -- a tough standard to clearly articulate.

Finally, the DJ rejects the state court's 55% innocent conclusion. It concludes that such a percentage is a mixed question of law and fact and not entitled to deference. Not sure if that's correct, but it's a really interesting question whether that is a fact question or a mixed question.

Doesn't really matter though. As the DJ states, 55 would not be enough. It would have to be more and "the evidence putatively creating reasonable doubt is highly suspect."

The DJ makes no ruling on a COA. I am guessing that she will deny it. Hopefully, the Second Circuit will grant a COA and take on this interesting actual innocence case. If there is no deference to the state courts on the question of what leve of innocence has been established, it would mean that the Second Circuit can take that question up de novo. So it could be pretty interesting, if it gets that far.

And how can the Second Circuit ignore someone who is 55% innocent? I just can't get over that.