Post-Conviction in Capital Cases

Post-Conviction in Capital Cases

The Death Penalty Appeals Process
Appeals Court Rulings and Harmless Errors
Federal Review and the Issue of Actual Innocence
Related Links

Much of the focus in death penalty cases is on the process of appeals and post-conviction review, and the case of Anthony Porter illustrates issues often faced by defendants at this stage. Porter's exoneration through the work of students at the Medill School of Journalism, after all of his appeals had been exhausted, also raises serious concerns about a criminal justice system that imposes an irreversible punishment. Some who support the death penalty argue that Porter’s exoneration demonstrates that the system works, because ultimately the execution of an innocent person was prevented. Those who are critical of the system claim it is seriously flawed because his exoneration came through the fortuitous actions of journalism students, not participants in the criminal justice system. Critics of the death penalty contend that the system has likely allowed the execution of innocent people in the past, and inevitably will continue to do so.

The Death Penalty Appeals Process

Death penalty appeals (which includes an appeal from the death judgment and other post-conviction review, including state and federal habeas corpus proceedings) comprise a lengthy and complicated process that can take 10-20 years, or more, during which the defendant's innocence or guilt is rarely the focus. Rather, post-conviction review is concerned about whether legal errors occurred in the trial proceedings. The time needed to review capital cases has generated much controversy. Many litigators believe that thorough review is needed to safeguard against wrongful convictions, and the passage of time necessary for meticulous review can be important. For example, the delay in Porter's execution (which was granted based on concerns about an intellectual disability and not on doubts about his guilt) provided time for a group of college students to re-investigate his case and prove his innocence 16 years after his conviction. Continued investigation and litigation after a conviction can lead to new evidence or new witnesses who ultimately may exonerate a defendant, as illustrated by the many individuals who were exonerated from death row since 1977 and spent an average of 9.8 years in prison before being released. However, some critics have called for a narrower, more streamlined and expedited appeals process, citing the high costs of the current system, the purported greater deterrent value of swifter punishment, and concern on behalf of murder victims' families for the delay in achieving justice.

Some legislatures have sought to "fast-track" the appeals process. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which enforced strict time limitations on seeking federal review, limited the number of federal appeals, and drastically circumscribed the power of federal judges to grant relief from state court judgements.  Death penalty litigators have challenged AEDPA, claiming that it creates barriers to constitutional protections and restricts substantive review of death penalty cases. A 2007 study conducted by Vanderbilt University law professor Nancy King revealed that fewer convictions have been overturned in federal court since the enactment of AEDPA. The study noted that after 1996 more than one in five appeals were dismissed because the appellant's lawyer missed the new filing deadline.

Appeals Court Rulings and Harmless Errors

When appellate courts review trials, their only concern is whether legal errors occurred in the trial proceedings. Appellate courts do not re-consider whether the defendant is guilty or innocent because they assume that a constitutionally fair trial produces a correct verdict. Instead, appellate courts consider whether there were errors in the legal proceedings, such as jury misconduct, prosecutorial misconduct or ineffective assistance of counsel, that compromised the reliability of the jury's verdict. Because of this limitation, an appellate lawyer cannot directly argue that the appellant is innocent, but may phrase the argument in terms of procedural error in the lower court, e.g., "My client's attorney provided ineffective assistance because s/he did not provide evidence of innocence."

One of the pivotal decisions in Porter’s case was a ruling of the U.S. Court of Appeals for the Seventh Circuit, acknowledging that Porter's trial lawyer may have made mistakes, but ultimately concluding that the mistakes would not have made a difference in the result. According to the decision of the U.S. Supreme Court in Strickland v. Washington, appellate courts can overturn a conviction only if they are convinced both that the trial lawyer’s performance was ineffective and that there is a reasonable likelihood the outcome of the trial would have been different if the lawyer had been effective. As a result, challenging a conviction based on ineffective assistance of counsel is doubly difficult. First, reviewing courts presume the trial lawyer's actions were adequate within the local standards of practice. They will give the lawyer the benefit of the doubt that whatever he or she left out was part of a legal strategy and not due to negligence. Second, even if the court finds the trial lawyer provided ineffective assistance, an appellant is not entitled to a new trial unless the post-conviction judges also find this evidence would likely have led the jury to acquit the defendant. Courts turn down most claims of ineffective assistance of counsel on such grounds. In Porter's case, the Circuit Court reasoned that even though his counsel failed to provide evidence of his innocence, that evidence was not sufficiently convincing to likely have resulted in acquittal.

The fact that Porter was almost executed despite his innocence raises serious concerns about the practice of disregarding obvious mistakes made at trial. It is very difficult for an appellate judge to know what experience would have made a difference to a jury, where reasonable doubts require a "not guilty" verdict. What one judge considers to be "harmless error" by trial counsel might have made the difference between life and death to a jury. Moreover, the idea that errors made at trial can be dismissed whenever the appellate judge is otherwise convinced of the defendant's guilt applies to other areas of appeal as well. Appellate judges are reluctant to overturn convictions and death sentences because of the expense and time involved in a re-trial. So it is tempting for them to conclude that any technical mistake would not have made a difference in the ultimate outcome. Porter's case is not unique. The U.S. Court of Appeals for the Seventh Circuit made similar rulings of "harmless error" in other Illinois cases in which exonerations nevertheless eventually resulted.

Federal Review and the Issue of Actual Innocence

Porter's case highlights the limited ability of the appellate system to provide adequate consideration of evidence that the defense uncovers late in the process. For instance, the final stage of post-conviction review, federal habeas corpus, generally limits what can legally be considered to claims made during earlier appeals. However, concern about wrongful conviction has led legislatures and courts to allow federal courts to consider new evidence if a defendant makes a compelling case for "actual innocence." Both the U.S. Supreme Court and Congress have addressed this issue.

In Herrera v. Collins (1993), the Supreme Court considered whether a claim of "actual innocence" was grounds for relief in federal court. Herrera claimed his execution would violate the Eighth Amendment's ban on cruel and unusual punishment because he was actually innocent of the crime for which he faced execution. The Supreme Court also considered whether a person who is fairly convicted and therefore guilty as a matter of law is constitutionally entitled to another judicial proceeding to reconsider his claim of innocence. In Herrera, the Supreme Court ruled that a claim of "actual innocence" is not by itself grounds for federal relief because federal review is meant to correct only constitutional errors, not errors of fact. The Court further noted that claims of actual innocence based on evidence discovered late in the review process could be addressed in executive clemency. Although, the Court assumed a "truly persuasive demonstration of actual innocence" made after trial would "render the execution of that defendant unconstitutional," it did not set a standard for what constitutes a "truly persuasive demonstration."

In House v. Bell (2006), the Court again addressed the issue of actual innocence. The case presented the question of whether new evidence that becomes available during post-conviction proceedings can be considered by federal courts even if it is no longer admissible under state law. The Court found that admitting new evidence is permissible under Schlup v. Delo (1995), which allowed cases to be reopened if innocence could be shown. In Schlup the Court ruled that prisoners asserting defaulted claims must first establish that if the new evidence were considered, no reasonable juror would find the defendant guilty beyond a reasonable doubt. In House, the Court decided Paul House met the Schlup standards and granted him a new trial. All charges against him were eventually dropped.

In 2004, the U.S. Congress passed the Innocence Protection Act (IPA), to address concerns about wrongful convictions in death penalty cases. The IPA provides access to DNA testing for federal defendants who assert "actual innocence" and allows motions for new trials if DNA results exclude the defendant as a source of the DNA evidence. The IPA also authorizes a grant program to improve the quality of representation in state capital cases, providing funds for states that train and monitor the performance of capital defense attorneys and ensure funding for competent legal representation by the defense team and other experts.


Critics of the death penalty view Porter’s case as a failure of the capital post-conviction system to catch and correct wrongful convictions, notwithstanding its provisions for considering new evidence of actual innocence. Had there not been a stay of execution to address doubts about Porter's intellectual abilities, or had Professor David Protess not decided to assign Porter's case as a class project, evidence of Porter's innocence would have remained hidden and his execution would have proceeded.

Questions for Further Analysis:

  • Is a fairly convicted, and therefore legally guilty, person entitled to another trial if he or she is not able to demonstrate trial errors but has a compelling case of actual innocence? Should he or she be?
  • How equipped are appeals courts to decide whether errors are "harmless"? Given the irreversible nature of a death sentence, should more substantial legal errors be considered potentially "harmful" and therefore grounds for a new trial?
  • In Herrera v. Collins, the Supreme Court assumed a "truly persuasive demonstration of actual innocence" made after trial would render an execution unconstitutional. What constitutes a "truly persuasive demonstration of actual innocence?" If the court makes such a finding, should the inmate receive a new trial or be set free?
  • Does “a truly persuasive demonstration of actual innocence” suggest that innocence must be proven beyond a reasonable doubt? Is this compatible with the usual standards of evidence in criminal cases (“innocent until proven guilty”)? How can these two positions be reconciled?
  • How can the guilt/innocence and sentencing phases of a capital trial be improved to prevent or at least reduce the likelihood of convicting the innocent or committing constitutional errors affecting the reliability of the conviction or sentence?
  • In most murder cases there is no evidence of the killer’s DNA, and most death row exonerations have not involved DNA. Is it fair to require a DNA exclusion when a defendant claims innocence? What alternatives would you suggest?
  • Suppose when new evidence of innocence is found after the trial, the original jurors were re-contacted and asked whether this evidence would have changed their verdict. Would that be a criterion for “harmless error” that is preferable to relying on the intuitions of appellate judges?
  • Read the Herrera, House, and Schlup opinions and list the arguments for and against re-opening a case for new evidence of innocence. What are the possible ways of dealing with defendants who bring these claims? Which do you favor and why?

Related Links

Representation in Capital Cases
Legal Remedies Available to Death Sentenced Individuals
The Case of Anthony Porter