For years, since Congress passed the draconian and rigid Antiterrorism and Effective Death Penalty Act (AEDPA) in the wake of the first WTC bombing and the Oklahoma City attack, Federal appeals courts have not seen fit to extend the Act’s harsh one year statute of limitations on habeas corpus appeals, even in cases of actual innocence. Last week, however, the Second Circuit, NY’s influential Federal appeals court, did just that in the case of Rivas v. Fischer.
Before I get into discussing the case, let me put on my law professor hat and set out a little history into habeas corpus and the AEDPA. (For those who are not up for some legal exposition that is heavier than usual for this blog, feel free to skip to the end if this next part is too “law-stuff” oriented – I promise to blog about Louboutin’s shoe trademarks next week, to pick up the pace of the blog again).
Habeas Corpus in a nutshell
Latin for “that you have the body,” it has come to mean “produce the body” because a writ of habeas corpus is used to bring a prisoner or other before a court to determine if the person’s imprisonment or detention is lawful and constitutional. In the US, federal court can be used to bring the writ of habeas corpus to have the court determine if a state’s detention of a prisoner is valid. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It is the basic way to get a Federal court to analyze whether a state conviction was constitutionally obtained.
Habeas corpus is also called “The Great Writ” and has been central to criminal jurisprudence since the very founding of this country. Habeas corpus originated in English common law as a means to protect individuals from illegal detention. An individual who had been held in custody could file a petition seeking a writ which would require the custodian to provide adequate legal justification for the detention. If the custodian failed to do so, the court could order the petitioner’s release. The Founding Fathers made certain that this new system of American government would maintain The Great Writ. Therefore the put it right in Article I, Section 9, Clause 2 called The Suspension Clause:
“The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.”
Although the Constitution did not specifically create the right to habeas corpus relief, in the First Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners. Congress expanded the writ following the Civil War, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law. Post-World War II reforms further expanded the writ: through the incorporation process by which the Bill of Rights was applied to the states, habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action. The Warren Court in the 1960s then further paved the way for broader habeas corpus rights.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
Starting with Ronald Reagan’s Administration in the 1980s, conservative legislators began attempting to limit the reach of habeas corpus with mixed results. It took the first two terrorist attacks on US soil to push through the AEDPA, the first time in US history that a strict limits were placed on the Great Writ. The bill was introduced by former Senate Majority Leader Bob Dole, and passed with broad bipartisan support by Congress (91-8-1 in the United States Senate, 293-133-7 in the House of Representatives). The AEDPA had a tremendous impact on the law of habeas corpus in the United States. While there are a number of important habeas limitations in the Act, the AEDPA has three major important aspects: first, it imposes a strict one-year statute of limitations on habeas petitions. Second, unless a United States Court of Appeals gave its approval, a petitioner may not file successive habeas corpus petitions. Third, habeas relief is only available when the state court’s determination was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” This last section was the first time that Congress saw fit to specifically delineate and limit the reach of the habeas corpus.
So where before, if you were wrongfully convicted, you could file your habeas petition pretty much anytime you wanted and you could keep doing so each time you found new evidence of your innocence, now with AEDPA you basically had one shot, in that first year following your conviction to convince a Federal Court that were being unlawfully detained. There have since been many cases where the Supreme Court and Federal Circuit courts have not expanded the one year limit even though the deadline was missed because of lawyer error or other non-substantive reasons. Here in NY, the Second Circuit has said that it might extend the time limit if a petitioner could establish actual innocence, but it would have to be “the right case.” They just have never found the “right case” I guess because despite receiving thousands of habeas petitions, many hundreds of them probably late, and claiming actual innocence, they have never extended the one year deadline. Until now.
Rivas v. Fischer
I am not going to get to in the detail of all the facts of the Rivas case, though they are disturbing. Suffice it to say when the murder of the victim (Rivas’ ex-girlfriend) occurred Rivas was a suspect. He was questioned repeatedly and at length by police and maintained his innocence all along. When the medical examiner, a Dr. Mitchell, placed the time of death as between Saturday March 28, 1987 and Sunday, March 29 1987, the police had to stop inquiring of Rivas as he had air tight alibis for that whole time period. Fast forward six years later, when a new DA, William J. Fitzpatrick, was elected in Onandaga County. He vowed to look int o the unsolved murder of the victim. Apparently certain of Rivas’ guilt (or devoid of any other suspects) he asked Dr. Mitchell if by any chance the murder might have been committed on Friday March 27.
Dr. Mitchell was then being actively prosecuted by Fitzpatrick’s office for misconduct so it was no surprise that he took another look at the case and said “Yep, it could have been Friday March 27.” Rivas gets indicted and Dr. Mitchell’s prosecution is dropped and he’s allowed to resign.
At trial, Fitzpatrick strings together some circumstantial evidence and with the new evidence from Dr. Mitchell, Rivas is convicted. Mitchell testified that six years earlier he did not review “some slides” which showed some brain decomposition making an earlier time of death possible and more likely. Rivas loses his State appeal, his state post-conviction motion and then his federal habeas corpus motion, when the lower Federal Court rejects it because it was filed more than one year after his conviction.
In his State attacks on his conviction, principal among Rivas’s allegations was that Mitchell, the medical examiner, had altered his
original estimate of the time of Hill’s death in order to satisfy the District Attorney in hopes of avoiding prosecution for alleged criminal misconduct. Rivas claimed not to have known about the investigation of Mitchell and his office until after the trial, when Mitchell was indeed forced to resign to avoid prosecution by Fitzpatrick’s office. Additionally, Rivas claimed to have discovered only after the trial that, despite Mitchell’s testimony that he had examined “slides” in coming to the conclusion that Hill most likely died on the night of Friday, March 27, 1987, and despite Fitzpatrick’s characterization of these slides in his summation as “autopsy sectional slides,” there were in fact no sectional slides of Hill’s brain in the medical examiner’s file. That’s right THEY JUST MADE THAT UP. [There was significant evidence as well that Fitzpatrick (who tried the case himself) withheld a lot of exculpatory evidence from the defense]. Rivas also produced an expert who filed an affidavit attesting that the death could not have occurred on Friday but had to have occurred when Dr. Mitchell first said it happened. In fact, the expert swore that it had to have occurred in a 36 hour window between Saturday afternoon and early Sunday morning, when Rivas’ alibi was absolutely uncontested. He also testified that an pathologist saying they could “come back in six years later and say that now I have a new estimate” was, at best, “a misrepresentation.”
The lower federal court said that while this was certainly evidence of actual innocence, Rivas could have found out about it during his trial if he (and his lawyer) had been more diligent, so sorry – no excuse for filing late, you lose. The Second Circuit agreed that all of Rivas’ claims were time barred under the law because he could have gotten an expert and found out about Mitchell’s prosecution etc, at the time of his prosecution and appeal.And, before this decision, that is where Rivas’ case would end. Believe it or not, even though most of the delay and problems in Rivas’ case were caused by lazy lawyering at the trial and state appellate level, the Second Circuit said that is not reason enough to extend the statute of limitation. The court said that because a lawyer is the agent of his client, the client generally “must ‘bear the risk of attorney error.’” Therefore, “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a
lawyer to miss a filing deadline, does not warrant equitable tolling.” Rather, in order to rise to the level necessary to constitute an
“extraordinary circumstance,” for purposes of extending the limitation period, attorney negligence must be “so egregious as to amount to an effective abandonment of the attorney–client relationship.” The court found that Rivas’ trial counsel (Richard Calle who was subsequently suspended from practice for other reasons) and his appellate counsel (Mitchell Schulman) presented what “appears at worst to be a garden variety case of neglect.”
But Rivas’ federal appellate lawyer, Richard M. Langone of Levittown, NY, argued that Rivas’ actual innocence required that the court overlook the clear language of the statute and let Rivas’ prove his innocence in Federal Court as the Great Writ has allowed for centuries -even though it was time-barred. In 1995, the US Supreme Court in Schlup v. Delo held that a habeas petitioner “may use his
claim of actual innocence as a ‘gateway,’ or a means of excusing his procedural default, that enables him to obtain review of his constitutional challenges to his conviction.” What the Court meant by calling it a gateway is that actual innocence is not enough by itself. The conviction still must have been obtained by some constitutional infirmity, its just that actual innocence allows you to bring your constitutional claim even if there are procedural reasons why you could not do so otherwise. Previously, for example, this gateway has allowed prisoners to bring more than one habeas petition even though that is also not allowed by the AEDPA.
Here , the court has now stated that this gateway applies to the limitation period as well:
The actual-innocence gateway is . . .firmly grounded in the courts’ traditional equitable
authority—specifically “in the ‘equitable discretion’ of habeas courts to see that federal
constitutional errors do not result in the incarceration of innocent persons.”
As the Supreme Court has observed, “concern about the injustice that results from the conviction of
an innocent person has long been at the core of our criminal justice system,” reflecting “a
fundamental value determination of our society that it is far worse to convict an innocent man than
to let a guilty man go free.” Schlup, 513 U.S. at 325. Motivated by this concern, the Court recognized
over a quarter-century ago an equitable exception to procedural rules intended to limit habeas relief
in “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of
one who is actually innocent.”
The Rivas court noted that this fundamental fairness in habeas cases preceded the AEDPA and must override that Act’s language in cases where a prisoner presents compelling evidence of actual innocence. The court added that to not have a way for an innocent State prisoner to present his case to a Federal court meant courts would “be faced with a thorny constitutional issue” and that “serious Eighth Amendment and due process
questions would arise with respect to the AEDPA if it were read to deny collateral review to a prisoner who is actually innocent.”
This is big news for the hundreds and perhaps thousands of individuals who are wrongly convicted but who had appellate lawyers that dropped the ball or who filed their own petitions untimely. In addition to that many other important messages come from the case: It’s a strong reminder that actual innocence should always win the day; its a testament to Mr. Rivas’ and his family’ persistent efforts to prove his innocence; it’s a cautionary tale about how far some DAs will go to get a conviction – read the case to see how much was withheld from this defendant and his attorneys by DA Fitzpatrick; it’s reminder of how long establishing innocence can take especially when DNA is not available -after all this murder occurred in 1987, the trial and conviction in 1993 and TWENTY years later, he is getting his chance to prove his innocence; and finally, it shows the value of dedicated and exemplary lawyering. Congratulations to Richard Langone for getting justice for Mr. Rivas. This decision may help countless others finally prove that they are in prison for crimes they did not commit.