The discussion around criminal justice reform these days usually centers around the same four or five themes. We need to change sentencing laws and guidelines so people aren’t thrown into prison for unreasonable terms. We need to fix policing to better hold accountable those officers who discriminate or use excessive force. Our prosecutors must begin to take a fairer view of what crimes should be aggressively prosecuted, even if it means fewer indictments. And when we do jail people for crimes, we must give most of them a meaningful opportunity to be released from pretrial detention. There is broad, bipartisan support for most of this.
What we almost never talk about when we talk about the need to fix our justice systems is the labyrinth of procedural hurdles established by legislators and judges to thwart the ability of the wrongfully convicted to get relief. We focus on figuring out how not to put innocent people in prison, which is great, but we don’t focus enough on figuring out how to get them out of prison after they’ve been convicted. The prime example of this, of course, is the Antiterrorism and Effective Death Penalty Act, the Clinton-era federal law that vitiated habeas corpus review and made it measurably harder for justice to come to criminal defendants who deserve it.
But it’s at the state level where these procedural hurdles are most pernicious. Take, for example, the case of Johnny Lee Gates. Earlier this month, a trial judge in Columbus, Georgia, ordered a new trial for Gates decades after he sought one. That’s the good news. If ever a defendant deserved a new trial, it’s Gates. From the start, his case was marked by a level of official misconduct I’ve rarely seen in nearly a quarter-century covering criminal justice. Police never even arrested another man who confessed to the murder for which Gates was subsequently charged.
The bad news is that the judge cited a series of arcane state appellate rules to avoid basing his ruling on the most egregious component of Gates’s conviction: the fact that prosecutors systematically excluded black citizens from his jury pool. In a three-day period in 1977, Gates, an intellectually disabled black man, was tried, convicted, and sentenced to death for murdering a white woman. An all-white jury heard the case and that’s because prosecutors had put a “W” next to the list of white prospective jurors and an “N” next to the list of black prospective jurors before moving to strike from the case all of the black candidates.
“The evidence of systematic race discrimination during jury selection in this case is undeniable,” wrote Judge John Allen. And not just undeniable, in Judge Allen’s view, but patently intentional. He devoted nearly 10 pages of his 27-page ruling chronicling how prosecutors purposely violated Gates’s constitutional rights by deploying one racist tactic after another. And then, after all that, the judge declared that he could not grant Gates a new trial based on this discrimination because of a six-part procedural standard Georgia courts apply in requests to overturn old convictions.
Every state has built into its criminal justice system rules designed to bring a measure of certainty and finality to old convictions. It makes sense. We all can agree that defendants cannot forever be entitled to raise new claims. But in Georgia, and in other states, the barriers to new evidence are way too high. For example, Gates had to prove that he didn’t know about the jury discrimination when it occurred at trial, that it wasn’t his fault that he didn’t learn of it until decades later, and that the discovery of the prosecutorial misconduct “probably” would have changed the outcome of his trial.
The judge didn’t explain why the proof of intentional racial discrimination wasn’t enough to grant Gates a new trial. It can’t be because Gates’s lawyers were diligent in seeking to raise the issue. The judge inexplicably didn’t mention in his motion how hard Georgia officials fought to keep secret those old notes from Gates, the ones that proved the racism at the heart of the 1977 trial. Instead, Judge Allen ultimately found that Gates deserved a second chance because newly discovered DNA evidence demonstrated “that he is excluded as the contributor to the DNA of two key items of physical evidence” in the case.
Gates is lucky in a sense. The case against him was so weak, and the evidence of official misconduct so pervasive, that his lawyers were able to surmount the procedural obstacles put into place by Georgia judges and legislators. But many other defendants in Georgia and beyond continue to serve wrongful convictions. The problem is acute, especially, when convicted defendants try to establish that their lawyers provided them with ineffective assistance of counsel. The problem has been eased in the past decade or so, on the other hand, when it comes to post-conviction DNA testing, thanks in large part to the Innocence Project.
At the heart of the matter is the role of reviewing courts. We all are taught in high school about how the system of appellate review in this country is supposed to weed out mistakes at trial. But over time, the system has devolved to the point where it tolerates, even encourages, unjust results. With one piece of legislation, Georgia could make it easier for defendants like Gates to establish their right to a new trial. Eliminate the need for a defendant to prove the new evidence “probably” would have generated a different result. Redefine what “due diligence” means where, as in Gates’s case, prosecutors or police are hiding evidence.
Likewise, with one single state supreme court ruling, Georgia’s judiciary could do the same. That six-part test the trial judge applied in Gates’s case? It could be refined. Today, a defendant like Gates must meet each of the six prongs of the test. How about a new standard that allows judges instead to balance out those factors? If a defendant proves, for example, that the new evidence is particularly material, he doesn’t necessarily also have to prove that he could not have discovered it five years earlier.
Why these reforms haven’t happened isn’t hard to figure out: There is no powerful political or legal constituency fighting on behalf of the unjustly convicted.
It comes down to competing values. Georgia lawmakers have placed a higher value on the certainty and finality of old convictions than it has on the accuracy and reliability of those convictions. That six-part test Gates struggled with is designed more to discourage dubious post-conviction motions than it is to encourage legitimate ones. And we never will know the true cost of that balancing because we will never know how many wrongful convictions in Georgia have gone unidentified because innocent defendants failed to meet the onerous procedural burdens erected against them.
Gates may soon go free if prosecutors choose not to retry him. So why am I complaining? Isn’t this a story that proves the system, in the end, does work? Yes and no. It worked for Gates. But the next wrongfully convicted defendant who raises these claims will also run into those procedural hurdles and likely won’t have DNA evidence to spare him. And you can bet in that, in cases to come, state lawyers will cite the Gates opinion to argue that even blatant racism by prosecutors doesn’t, on its own, justify a new trial. I don’t think you can call that progress. I think you call that a particularly despicable form of resistance to justice.