“Talking heads” (those banal, self-described experts who pop
up daily on “news shows”, not the ‘80’s rock band) decried the Italian justice
system. And, a few noted the appearance
of a large crucifix behind the appellate judges, peering down on the defendant
as the court’s decision was rendered (I wondered, as I saw that, if the
Italians ever thought of actually applying the “true” justice of calvary and
forgiving her for any sins she may have committed). We Americans are an interesting lot. We think our system is somehow superior until,
that is; we get caught up in its wheels and get slowly grounded down by the
arcane unfairness of the American judicial system.
Take Virginia’s criminal appellate process. Suppose you’re a criminal defendant,
unschooled in the law, poor and therefore unable to hire counsel. You transfer from the county jail to the
custody of DOC and end up at their receiving unit where you meet another inmate
who tells you about an evidentiary ruling that your attorney (court appointed)
overlooked. You immediately hand draft a
motion with the trial court to re-open your case.
Sorry, you lose.
Virginia law holds that once a defendant is transferred to DOC custody
that trial court loses jurisdiction over the case. The inmate can’t get his case re-opened. Simply put, there is no court that can hear
this case.
What, you might ask, happens if the man or woman is actually
innocent? You mean like Thomas Haynesworth
who spent 17 years in prison for rapes DNA conclusively proves he didn’t
commit? Yet, as I write this blog,
Haynesworth – released 6 months ago by a conditional pardon that commuted his
sentence but did not exonerate him – still waits for the Virginia Court of Appeals
to overturn his convictions and rule him “innocent”. One of the reasons for the delay: Virginia law permits “extraordinary appeals”
based on writs of actual innocence. However,
the evidence establishing your innocence must be discovered and presented “within
a year of conviction”.
And then there’s the entire habeas corpus process. The Sixth Amendment to the United States
Constitution specifically guarantees all criminal defendants facing jail time,
the right to the “effective assistance of counsel”. That right is one of the fundamental bedrock
constitutional guarantees of our system.
Yet today it is as difficult to negotiate the meaning of that clause as
a treasure map written in Aramaic.
First, there are numerous procedural prerequisites (filing
in state court for example) before you ever reach Federal Court. Then, even if you have overcome the
procedural hurdles you have to meet the “test” set out by the U.S. Supreme
Court in Strickland v Washington:
1) the attorney didn’t meet an objective standard of effectiveness and
2) had the client had an effective
lawyer a different result would be reached.
How can you ever prove the second part of the test? You very seldom can which is why each year
thousands of inmate cases are thrown out.
Unfortunately, habeas actions are the only recourse inmates have once
their appeals are exhausted. Does
effective assistance of counsel truly exist?
Sadly, no.
And, Amanda at least had public opinion on her side. Americans overwhelmingly think prosecutors and
police are there to “protect and serve” and play fair. A defendant who has been convicted had the
extra burden of establishing his innocence.
We presume the law wouldn’t have wrongly convicted anyone even though we
see otherwise.
Amanda Knox’s family spent their life savings carrying the
message of her mistreatment at the hands of the Italian judiciary. They nearly bankrupted themselves getting
justice. I ask you how many innocent men
and women rot in American prisons who deserve justice? How many were over-sentenced and deserve
another chance at freedom? Tell me,
would Amanda Knox be free today if she’d been convicted in Virginia?
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