GUILTY UNTIL PROVEN INNOCENT:PROVIDING EFFECTIVE RELIEF TO THEACTUALLY INNOCENT IN NEW YORK

Steven M, Cytryn*

INTRODUCTION .............................................. 470I. UNDERSTANDING ACTUAL INNOCENCE................ 473

A. What is Actual Innocence? .................... 473B. How Does A Defendant Who Is Actually Innocent Get

Convicted?.............................. 47511. CHALLENGING A CRIMINAL CONVICTION ON THE

GROUNDS OF ACTUAL INNOCENCE IN NEW YORKSTATE COURTS ....................................... 476A. Newly Discovered Evidence . ................... 477B. Prosecutorial Misconduct ..................... 481C. Post-Conviction DNA Testing .................. 483D. Violation of the Defendant's Constitutional Rights .... 486

III. THE ELUSIVE CLAIM OF ACTUAL INNOCENCE IN

FEDERAL COURTS ..................................... 490IV. A MODEL FOR REFORM: A LOOK AT PROPOSED

LEGISLATION IN NEW YORK AND EXISTING POST-

CONVICTION RELIEF COMMISSIONS .................... 493A. The Actual Innocence Justice Act. ............... 494B. Establishing an Innocence Commission ............ 497

i. The Criminal Cases Review Commission in the

United Kingdom ............................. 497

ii. The North Carolina Innocence Inquiry

Commission ................................. 499

CONCLUSION................................................. 502

* Associate, Hartman & Winnicki, P.C.; J.D. Benjamin N. Cardozo School of Law, 2011;M.Ed. University of Nevada, Las Vegas, 2008; B.A. Columbia University, 2006. The authorwould like to thank Professor Kyron Huigens for his guidance and feedback throughout theresearch and writing process.

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470 CARDOZO PUB. LAW POLICY &'r ETHICSJ. o

"It has often been said that 'death is different,' meaning at a minimumthat the ultimate finality of the death penalty requires both special stan-dards for its imposition and special care in applying those standards. Butwhat has generally been overlooked is that 'innocence is different' also. "'

INTRODUCTION

Between 110,000 and 115,000 people are convicted of felonies inNew York each year.2 While there is no single survey or statistic thatcan reveal how many of those convicted are actually innocent,3 a look atstories from around the country, and even within New York,5 showsthat such convictions do occur. In fact, over the last twenty years, atleast ninety-five individuals in New York have been imprisoned and sub-sequently exonerated for crimes they did not commit.'

To date, 289 individuals have been exonerated in the United Statesthrough the use of post-conviction DNA testing.7 Twenty-six of these

1 D. Michael Risinger & Lesley C. Risinger, Innocence is Different: Taking Innocence intoAccount in Reforming Criminal Procedure, 56 N.Y.L. SCH. L. REV. 269 (2011) (internal citationsomitted).

2 N.Y. STATE Div. OF CRIMINAL JUSTICE SERVICES, DISPOSITIONS OF ADULT ARRESTS

(2011), available at http://criminaljustice.state.ny.us/crimnet/ojsa/dispos/all.pdf (showing thatbetween 2005-2009, the number of persons convicted of felonies in New York was between110,000 and 115,000).

3 See Stuart Taylor, Jr., Innocents in Prison; Many Thousands of Wrongly Convicted People areRotting in Prisons and Jails Around the Country, NAT'L J., Aug. 4, 2007 (explaining that it is "notknowable with any confidence" the exact number of persons convicted each year who are inno-cent, but that it does occur).

4 Maria Glod, Va. Man Imprisoned for 27 Years Gets Parole, WASH. POST (Mar. 18, 2011),http://www.washingtonpost.com/local/va-man-imprisoned-for-27-years-gets-parole/2011/03/18/AB8aKTs_story.htmi (exonerated in Virginia); Man Exonerated After 14 Years, CONNECT-TRISTATEs (May 28, 2008), http://www.connecttristates.com/news/news-story.aspx?id=139633(exonerated in Illinois); Man Exonerated by DNA is Freed After 24 Years, MSNBC (Jan. 23,2006), http://www.msnbc.msn.com/id/10995872/ (exonerated in Florida).

5 A. G. Sulzberger, Vindication Now Arrives After a Battle of28 Years, N.Y. TIMES, Feb. 42010, http://www.nyrimes.com/2010/02/05/nyregion/05dna.html; Rachel Barnhart, Frank Ster-ling Cleared of 1988 Manville Murder; Mark Christie Confesses, 13WHAM (Apr. 28, 2010),http://www.13wham.cominews/local/story/Frank-Sterling-Cleared-of-1988-Manville-Murder/xbDllk9_3O2jBR23eKmlVw.cspx.

6 Actual Innocence Justice Act of 2010, S6234C-2009 Memo, 2009-20 10 Sen., Reg. Sess.(N.Y. 2009) [hereinafter S6234C Memo], available at http://open.nysenate.gov/legislation/bill/S6234C-2009.

7 Facts on Post-Conviction DNA Exonerations, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Facts-onPostConvictionDNAExonerations.php (last visited Apr. 28,2012).

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individuals were convicted in New York.' But, despite popular belief tothe contrary,' DNA testing is only available in a small number ofcases-somewhere between 5% to 10%1o-and these instances mainlyconsist of sex-based crimes in which semen was recovered." Indeed, sexoffenders accounted for 84% of the cases in which individuals have beenexonerated using post-conviction DNA testing.12 This data reveals thechilling reality that if DNA evidence is largely only useful to aid in theexoneration of individuals convicted of sex-based crimes, there is an un-known, but real number of individuals convicted of robbery, murder,assault, various drug crimes and other serious offenses who are sitting injail while the real perpetrators have not been brought to justice. Forexample, even assuming that the accuracy of a criminal conviction inNew York is 99.9%, that would still mean that just over 100 people inNew York are convicted of felonies each year that they did not commit.' 3

Despite the hesitance of the Supreme Court of the United States todetermine whether the incarceration of an innocent person is a violationof our federal Constitution," some New York trial courts have foundthat it violates the New York State Constitution.15 Nevertheless, absent

8, S6234C Memo, supra' note 6.

9 Donald E. Shelton, The 'CSIEffect- Does It Really Exist?, NIJ J., Mar. 2008, at 1, available

at hrtps://www.ncjrs.gov/pdffilesl/nij/221500.pdf (showing that 46% of people expect to see"some kind of scientific evidence" in every criminal case and 22% of people expect to see DNAevidence in every criminal case).

10 Non-DNA Exonerations, INNOCENCE PROJECT, http://www.innocenceproject.org/know/

non-dna-exonerations.php (last visited Apr. 28, 2012) ("Experts estimate that DNA testing is

possible in just 5-10% of all criminal cases.").

11 Taylor, supra note 3 ("The kind of DNA evidence that can conclusively prove innocence

or guilt is available only in a smallfraction ofcases, mainly rape and rape-murders in which sperm

is recovered.") (emphasis added).12 Browse the Profiles, INNOCENCE PROJECT, http://www.innocenceproject.org/know/

Browse-Profiles.php (last visited Apr. 28, 2012) (the author read through each profile and re-

corded all the individuals that were convicted of at least one sex-based crime, i.e., rape, sodomy,sexual assault and sexual misconduct.).

13 One-tenth of one percent of 112,500 (an average of the 110,000-115,000 felony convic-

tions per year in New York) equals 112.5. N.Y. STATE Div. OF CRIMINAL JUSTICE SERVICES,

supra note 2.14 Herrera v. Collins, 506 U.S. 390, 404 (1993) (explaining that "actual innocence" has

never been held to be an independent constitutional claim); Dist. Attorney's Office v. Osborne,

129 S. Ct. 2308, 2321 (2009) (explaining that whether "actual innocence" exists as a federal

right remains an "open question").15 The first New York court to hold that the "conviction of and/or punishment imposed

upon an innocent person violates the New York State Constitution" was the Kings County

Supreme Court in People v. Cole, 1 Misc. 3d 531, 542 (N.Y. Sup. Ct. 2003). To date, no New

York appellate court has expressly affirmed Cole, but "virtually all of the trial courts to explicitly

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an affirmation by higher New York courts, and absent a clear procedurefor New York defendants to bring their claims of actual innocence, relieffor wrongful conviction remains procedurally questionable at best, andillusory, at worst.

While recent studies and. articles have exposed a number of lawenforcement and government practices in New York that can lead to theconviction of innocent persons,' 6 this Article focuses on the post-con-viction legal remedies available to a New York defendant claiming inno-cence. The purpose of this-Article is to analyze how the current laws inthe New York and federal court systems are inadequate to address claimsof actual innocence, and fall short of providing effective relief. Themain reason for this shortfall is a series of procedural impediments thatsignificantly limit the effectiveness of actual innocence claims. Theseshortcomings are caused by the focus of our criminal justice system onthe formality and finality of the trial process and on procedural rules,even in the face of our new understanding of convictions of innocentpersons. As a solution, this Article proposes that New York establish anindependent Innocence Commission to provide effective relief for thoseclaiming actual innocence.

Ever since the first DNA exoneration in 1989,"1 there has been anincreasing focus on the phenomenon of actual innocence in the criminal

justice system. In 1997, the United Kingdom became the first countryto create a specialized commission to investigate claims of wrongful con-victions.s North Carolina followed suit in 2006,9 and became the firststate to establish a commission designed to evaluate cases of actual inno-cence. 20 Several other states, such as Rhode Island,21 Florida2 2 and New

address the issue have concluded that such a claim may be raised." People v. Days, No. 0469/

01, 2009 WL 5191433, at *15 (N.Y. Sup. Ct. Dec. 31, 2009) (internal citations omitted).16 See N.Y. STATE BAR ASSOCIATION'S TASK FORCE ON WRONGFUL CONVICTIONS, FINAL

REPORT OF THE N.Y. STATE BAR ASSOCIATION'S TASK FORCE ON WRONGFUL CONVICTIONS

6(2009), http://www.nysba.org/Content/ContentFolders/TaskForceonWrongfulConvictions/Fi-nalWrongfulConvictionsReport.pdf [hereinafter TASK FORCE REPORT]; James R. Acker &Catherine L. Bonventre, Perspective: Protecting The Innocent in New York: Moving Beyond Chang-

ing Only Their Names, 73 ALB. L. REv. 1245 (2010); Risinger & Risinger, supra note 1.17 Facts on Post-Conviction DNA Exonerations, supra note 7.18 About Us, CRIM. CASES REVIEW COMMISSION, http://www.ccrc.gov.uk/about.htm (last

visited Apr. 28, 2012).19 NORTH CAROLINA INNOCENCE INQUIRY COMMISSION, www.innocencecommission-

nc.gov/stats.html (last visited Apr. 28, 2012).20 Ron Sylvester, How Innocent People End Up Behind Bars, WICHITA EAGLE (Feb. 13,

2011), http://www.kansas.com/2011/02/13/1718593/how-innocent-people-end-up-behind.html.

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York,2 3 have ordered task forces to assess the causes behind the convic-tion of the actually innocent. Moreover, independent organizations,

such as the Innocence Project,2 4 have developed to fill the proceduralvoid that state courts and state legislatures have left open. Nevertheless,

despite increasing awareness, New York has yet to take any fundamentalstep toward providing effective relief for those claiming actualinnocence.

Part I explains actual innocence as a legal concept and provides alook into the factors that can lead to the conviction of an innocentperson. Part II traces the path of post-conviction relief in New Yorkstate courts for a defendant claiming actual innocence, and presents alook at a selection of cases that underscore the procedural roadblocksthat have hindered legitimate claims of actual innocence. Part III con-tinues along this path, demonstrating the ineffectiveness of claims ofactual innocence in the federal court system. Finally, Part IV concludesby arguing that effective relief for a claim of actual innocence is mostlikely to come from within New York, as opposed to the federal system,highlights small inroads of progress, and proposes that the establishmentof an independent Innocence Commission would provide the most ef-fective form of relief. While it may not be possible to ensure that theinnocent are never convicted, it is possible to provide them a directmeans of seeking relief, instead of forcing them through a proceduralmuddle that was never designed to address innocence.

I. UNDERSTANDING ACTUAL INNOCENCE

A. What is Actual Innocence?

"Actual innocence" covers a narrow subset of cases that fall withinthe broader category of wrongful convictions. Most generally, a wrong-ful conviction can be defined as a miscarriage of justice that results inthe conviction of a defendant in contravention of recognized constitu-tional and legal principles. Using this definition, wrongful convictionscan be broken down into three subcategories: 1) unfair trial, 2) insuffi-

2 1 Id22 Court Initiatives, FLORIDA STATE COURTS, http://www.flcourts.org/gen-public/inno-

cence.shtml (last visited Apr. 28, 2012).23 TASK FORCE REPORT, supra note 16.24 About the Innocence Project, INNOCENCE PROJECT, http://www.innocenceproject.org/

about/ (last visited Apr. 28, 2012).

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474 CARDOZO PUB. LAW POLICY d- ETHICS J

ciency of the evidence, and 3) actual innocence. Each of these will beexplained in turn.

The Supreme Court of the United States has explicitly held thatthe "right to a fair trial" is a "fundamental right" protected under theDue Process Clauses and the Sixth Amendment. 25 As a result, improperjury instructions, juror misconduct, 2 7 admission of improper evi-dence,28 or ineffective assistance of defense counsel 2 9 are all errors thatcan violate this right. In such situations, when the defendant challengesthese errors, the remedy is generally a new trial.

In addition to a denial of the right to a fair trial, a defendant canalso be wrongfully convicted in circumstances where the evidencepresented at trial was insufficient to make out every element of thecrime charged. For example, in People v. Prindle, the New York Courtof Appeals reduced a defendant's conviction from depraved indifferencemurder to the lesser offense of manslaughter on the ground that theevidence was insufficient to demonstrate the "depraved. indifferencereckless conduct" required for a conviction of depraved indifferencemurder.3 0 Here, as a remedy, the defendant was convicted of a lesser-included offense-manslaughter instead of murder. In other cases, ifthe evidence is wholly insufficient to constitute any crime, the chargesmay be dismissed all together. In both of these instances, where thedefendant challenges a conviction on the basis of an unfair trial or insuf-ficiency of the evidence, the defendant is making strategic use of thefundamental principles of our criminal justice system by ensuring thathe or she is afforded a fair trial, and/or that the prosecution is held totheir burden of proving each element of the offenses charged beyond areasonable doubt.

The defendant claiming actual innocence is not resting his or herclaim on one of the procedural errors enumerated above; instead, thedefendant is alleging that he or she is not the person who committed the

25 Strickland v. Washington, 466 U.S. 668, 684-85 (1984).26 Hedgpeth v. Pulido, 129 S. Ct. 530, 530 (2008) ("A conviction based on a general verdict

is subject to challenge if the jury was instructed on alternative theories of guilt and may have

relied on an invalid one.").27 Tanner v. United States, 483 U.S. 107, 117-18 (1987) (explaining that in certain cases,

external influences can provide sufficient justification to permit a juror to impeach a verdict).28 Crawford v. Washington, 541 U.S. 36 (2004) (holding that the admission of certain

evidence at a criminal trial violated the right to a fair trial).29 Strickland, 466 U.S. at 684-85 (explaining that the Sixth Amendment of the United

States Constitution guarantees a right to effective assistance of counsel).30 People v. Prindle, 944 N.E.2d 1130 (N.Y. 2011).

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crime. In Bousley v. United States, the United States Supreme Courtexplained that "actual innocence means factual innocence, not mere le-gal insufficiency," 3 1 thus highlighting the difference between those alleg-ing mistaken identity and those alleging a wrongful conviction morebroadly. In cases of actual innocence, a new trial or a reduction of thecharges is not a sufficient remedy. For a defendant claiming actual in-nocence, the only just remedy is exoneration.

B. How Does A Defendant Who Is Actually Innocent Get Convicted?

There is no single explanation for how someone who is actuallyinnocent gets convicted. It can happen as a result of one or more of thefollowing errors: mistaken identification; false confession; mishandlingof forensic evidence; errors by the prosecution, law enforcement, or de-fense attorney or failure to adequately investigate a case. 32 Of these fac-tors, mistaken identification and mishandling of forensic evidence arethe most common. In a survey of cases in which defendants were exon-erated using DNA evidence, it was determined that 79% of those con-victions had been a result of mistaken identification and 57% includedthe mishandling of forensic evidence. While these causes are the mostcommon, false reports by police informants and false confessions, whichplayed a part in 18% and 16% of cases, respectively, are also factors thatplay a part in the conviction of the actually innocent.

A 2009 survey of 53 New York defendants who were exoneratedshows a similar trend, with 68% of cases involving mistaken identifica-tion and 50% of cases involving the mishandling of forensic evidence.False confessions and false reports by jailhouse informants ranked loweron the list of contributing factors, at 22% and 7.5%, respectively. 3 6 In-terestingly, "government practices" 37 -including the use of false evi-dence, the failure to turn over favorable information to the defense, thefailure to adequately preserve forensic evidence and the failure to effec-tively investigate alternative evidence-played a role in 58% of cases inwhich an actually innocent defendant was convicted.

31 Bousley v. United States, 523 U.S. 614, 623-24 (1998).32 TASK FORCE REPORT, supra note 16, at 7.33 Sylvester, supra note 20.34 Id35 TASK FORCE REPORT, supra note 16, at 7.36 Id

37 Id. at 19.38 Id. at 7.

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Ultimately, while certainly important in allowing us to better un-derstand the causes of actual innocence, identifying the factors that canlead to the conviction of a defendant who is actually innocent is ratherstraightforward. The real challenge is providing effective relief to suchdefendants once they.have been convicted. As the following two Partswill demonstrate, the current procedures and practices in the New YorkState court system and the federal court system, respectively, are illequipped to effectively handle such claims or to provide an adequateremedy.

II. CHALLENGING A CRIMINAL CONVICTION ON THE GROUNDS OFACTUAL INNOCENCE IN NEW YORK STATE COURTS

A vast majority of criminal cases are disposed of with a guiltyplea,39 which limits the grounds for challenging those convictions.40

For the cases that do proceed to trial, there exists a wide array ofgrounds to challenge a conviction in New York. Currently, there is noexplicit statutory ground for a claim of "actual innocence" in New York.Nevertheless, there are four grounds that this Article will explore as pos-sible relief to a defendant claiming actual innocence: 1) newly discov-ered evidence,4 2 2) prosecutorial misconduct,43 3) post-conviction DNA

39 See Taylor, supra note 3 (stating that ninety percent of violent-crime cases end in pleabargains); Nancy Jean King, The American Criminal Jury, 62 LAw & CONTEMP. PROBS. 41, 59(1999) (noting that somewhere between three and ten percent of felony cases go to trial, andthat plea bargaining is the "norm"); Rebecca Hollander-Blumoff, Note, Getting to "Guilty:"PleaBargaining as Negotiation, 2 HARV. NEGOT. L. REV. 115, 116-17 (1997) ("Plea bargainingdisposes of approximately ninety percent of all criminal cases in the United States.").

40 See e.g., People v. Jackson, 163 Misc. 2d 224 (N.Y. Sup. Ct. 1994) (explaining that thepost-conviction relief of newly discovered evidence is not available to a defendant who pleadsguilty); People v. Byrdsong, 33 A.D.3d 175 (N.Y. App. Div. 2006) (explaining that the availa-bility of post-conviction DNA testing is not available to a defendant who pleads guilty); see alsoGARY MULDOON, HANDLING A CRIMINAL CASE IN NEW YORK § 23:3 (2010).

41 For a comprehensive list of available verdict challenges, see MULDOON, supra note 40, at§ 19:1-24. For relief available post-conviction but pre-sentencing, see N.Y. CRIM. PROC. LAW

§ 330.30 (Consol. 2011). For relief available following sentencing, see N.Y. CRIM. PRoc. LAw

§§ 440.10, 440.30. Finally, a defendant is entitled to certain direct appeals under N.Y. CRIM.

PROc. LAw %§ 450.10 et seq., and also to a state habeas corpus claim under N.Y. C.P.L.R.§§ 7001 et seq.

42 New York Criminal Procedure Law provides that this claim can be brought pre-sentenc-ing, N.Y. CRIM. PRoc. LAW § 330.30(3), and post-sentencing, N.Y. CRiM. PRoc. LAw

§ 4 40.10(1)(g). The burden under both § 330.30(3) and § 4 4 0.10(1)(g) is the same. People v.Rivera, 119 A.D.2d 517, 518 (N.Y. App. Div. 1986).

43 N.Y. CIUM. PROC. LAw § 440.10(1)(b), (c), (f).

GUILTY UNTIL PROVEN INNOCENT

testing,44 and 4) the violation of the defendant's constitutionalrights.

Although there is no time limit during which a defendant can seekpost-conviction relief in New York 46-a rather liberal standard whencompared to many other states 7- each ground has its own set of strictprocedural requirements that has generally hindered claims in which adefendant was ultimately found to be innocent. This section will ana-lyze each of these grounds, with a specific focus on defendants claimingactual innocence, and will demonstrate the procedural impedimentsposed by each ground. While a few of these grounds have actually pro-vided relief to defendants claiming actual innocence, such relief onlycame after significant external pressure was exerted on the respectivecourts, or even prosecutors, to grant relief. Ultimately, since none ofthese grounds expressly allows for actual innocence, the following willdemonstrate how the procedural hurdles impede the ability of New Yorkcourts to consider claims of actual innocence, and therefore providessupport for the creation of an independent Innocence Commission.

A. Newly Discovered Evidence

While post-conviction relief for newly discovered evidence may su-perficially sound promising, the substantive and procedural require-ments to succeed on a motion based on newly discovered evidence placea "high burden" on the defendant, who faces an "uphill battle" to estab-lish the necessary criteria. Indeed, New York's highest court, theCourt of Appeals, has set forth six conditions, all of which must be met,in order to have evidence deemed "newly discovered."49 In short, thedefendant must show that the evidence is newly discovered, could nothave been produced at trial with "due diligence," and is of such a char-

44 Id. § 440.30(1-a).45 Id. § 440.10(1)(d), (h).46 The plain language of the statute makes clear that such claims may be brought "[a]t any

time after the entry of a judgment." Id. § 440.10.47 See Herrera v. Collins, 506 U.S. 390, 410-11 n.8-11 (1993) (providing a survey of state

post-conviction statutes, and their respective time limits).48 SPIRos A. TsIMBINos, EXPERT ANALYsis, N.Y. CRIM. PROC. § 330.30 (2012).49 People v. Salemi, 309 N.Y. 208, 216 (1955). Newly-discovered evidence, in order to be

sufficient, must fulfill all the following requirements: 1. It must be such as will probably changethe result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must besuch as could have not been discovered before the -trial by the exercise of due diligence; 4. Itmust be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It mustnot be merely impeaching or contradicting the former evidence. Id. (internal citations omitted).

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478 CARDOZO PUB. LAW POLICY &'r ETHICSJ. [

acter that if it had been produced at trial, it probably would have led toa more favorable verdict for the defendant.o Additionally, the newlydiscovered evidence must be evidence that would be admissible at trial"and must not merely impeach or contradict evidence presented at trial.52

Finally, the claim is not available to a defendant that pleaded guilty,53

and the decision to grant or deny a motion on newly discovered evi-dence is within the discretion of the trial court, thus greatly restrictingthe power of an appellate court to review a denial.5 1

The case of Martin Tankleff demonstrates the difficulties that canarise in meeting the newly discovered evidence standard. In 1990, Tan-kleff was convicted of murdering both of his parents, largely based on analleged "confession" that was "repudiated and never signed" by Tan-kleff.55 In 2003, thirteen years after he was convicted, Tankleff beganan appeal in which he presented evidence from twenty individuals whoexplained how his father's embittered business partner-who had fakedhis own death after the murders 56-perpetrated the crime.57 The courtdenied the appeal58 on the grounds that the evidence was "unreliable,inadmissible hearsay, belatedly introduced or reprising issues rejected inprior appeals."59 The court also found that Tankleff had failed to exer-cise "due diligence" because he failed to make the motion back in

50 People v. Rivera, 119 A.D.2d 517, 518 (N.Y. App. Div. 1986) (providing a general expla-nation of § 330.30(3)).

51 People v. Boyette, 201 A.D.2d 490, 491 (N.Y. App. Div. 1994); People v. Cole, 1 Misc.3d 531, 535 (N.Y. Sup. Ct. 2003); People v. Dabbs, 154 Misc. 2d 671, 674 (N.Y. Sup. Ct.1991).

52 Salemi, 309 N.Y. at 216; People v. Clinkscaleas, 48 A.D.3d 474 (N.Y. App. Div. 2008).53 People v. Jackson, 163 Misc. 2d 224 (N.Y. Sup. Ct. 1994).

54 People v. Brown, 56 N.Y.2d 242, 246 (1982) (explaining that reversal can only occurwhere the decision amounted to abuse of discretion as a matter of law).

55 Bruce Lambert, No Retrial in '88 Double Killing on Long Island, N.Y. TIMES (July 1,2008), http://www.nytimes.com/2008/07/01/nyregion/01tankleff.html?ref=martintankleff Infact, Tankleff was tricked into believing that his father had awakened from his coma and hadimplicated Tankleff. Jen Chung, Murder Charges DroppedAgainst Martin Tankleff GoTHAMIST

(Jan. 8, 2008), http://gothamist.com/2008/01/03/charges-dropped1.php.56 Chung, supra note 55.57 Times Topics, Martin Tankleff N.Y. TIMES (Apr. 2, 2011), http://topics.nytimes.com/top-

ics/reference/timestopics/people/t/martin tankleff/index.html.58 People v. Tankleff, No. 0001535/1988, 2006 WL 5277208 (N.Y. Sup. Ct. Mar. 17,

2006).59 Times Topics, Martin Tankleff supra note 57.

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1994-four years after his conviction-when he first obtained one ofthe affidavits that was later presented in the 2003 appeal. 6 0

On appeal, thirty-one former prosecutors submitted an amicusbrief arguing that Tankleff had "presented persuasive evidence" that hewas wrongly convicted and deserved a new trial.' The Appellate Divi-sion, Second Department agreed, and reversed the county court's denialof the motion, finding that "due diligence" had been met on the groundthat Tankleff "should not be penalized for waiting to amass all of thenew evidence and then presenting it cumulatively." 6 2 With regard towhether the new evidence would have led to a more favorable verdict,the Appellate Division found that the county court had failed to takeinto consideration the entirety of the evidence and the fact that many ofthe witnesses were unconnected to one another, and had come forwardindependently and at different times. 3 The appellate court explainedthat the trial court's "mechanical exclusion" of the evidence and focuson the "unsavory background" of some of the witnesses was in error.The appellate court vacated the conviction and ordered a new trial. Afew months later, the charges against Tankleff were dismissed "in theinterest of justice."65 Tankleff had spent seventeen years in prison.6 6

Like the Tankleff case, the case of Clinton Turner also raises ques-tions about the efficacy of relief through newly discovered evidence. InTurner v. Schriver, the trial court rejected a newly discovered evidenceclaim brought in 1993, five years after Turner was convicted for thefirst-degree robbery of William Clarke. 7 Turner produced two affida-vits, one from William Clarke-the alleged victim and only eyewitnessto the crime-in which Clarke admitted to lying about the alleged rob-bery.68 The other was from an inmate who stated that Clarke had alsofalsely accused him of a separate robbery.6 9 Clarke's affidavit stated thatat the time of the robbery he had "a serious cocaine and crack addiction

60 Tankleff 2006 WL 5277208 ("The defendant has not adequately explained why he satwith the Kovacs statement for nearly nine years.").

61 Times Topics, Martin Tankleff supra note 57.62 People v. Tankleff, 49 A.D.3d 160, 180 (N.Y. App. Div. 2007).63 Id. at 181-82.64 Id. (explaining that the prosecution frequently relies on witnesses with "unsavory back-

grounds" to support their cases).65 People v. Tankleff, 2008 N.Y. Misc. LEXIS 4869, at *11 (N.Y. Sup. Ct. 2008).66 Lambert, supra note 55.67 Turner v. Schriver, 327 F. Supp. 2d 174, 180 (E.D.N.Y. 2004).6 8 Id.69 Id

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as well as serious alcohol dependency," which caused him to "behaveirrationally."7 0 He also stated that he and Turner had an altercation overdrugs, but that Turner did not have a knife and had never robbed him,and that he had lied to the police when he said he did not have a crimi-nal record.' Finally, he explained that he was only now revealing thisinformation because he had since sobered up, married, fathered a child,and was "very sorry" for his acts.72

In a three-sentence opinion, the appellate court affirmed the trialcourt's denial of the appeal, without a hearing, on the grounds that"there is no form of proof so unreliable as recanting testimony,"7 3 andthat it merely impeached Clarke's prior testimony and "probably wouldnot change the result if a new trial were granted. " The court made nomention of the fact that Clarke, the alleged victim, was the prosecution'sonly eyewitness, and that the alleged victim was not only recanting histestimony, but admitting to committing perjury on the stand by lyingabout his criminal past. After an additional unsuccessful appeal in statecourt,7 Turner took his claim to a federal court, which vacated the con-viction in 2004 on constitutional grounds.7 6

Admittedly, Tankleff was ultimately afforded relief on the basis ofnewly discovered evidence, but his initial motion for relief was dismissedon procedural grounds, and it took five years and pressure from dozensof former prosecutors to have the appellate court consider the availableevidence. Moreover, the court had no power to dismiss the charges, andcould only vacate the conviction and order a new trial. Indeed, .theDistrict Attorney's Office was prepared to retry Tankleff until it reluc-tantly admitted that it did not have sufficient evidence to convince ajury that Tankleff was guilty beyond a reasonable doubt.7 7 Turner, onthe other hand, was simply not afforded relief by state courts, and wasonly granted relief after a federal court identified a constitutional viola-tion in his conviction. Both of these cases demonstrate how even for anactually innocent defendant, newly discovered evidence presents a host

70 Id71 Id72 Id73 People v. Turner, 215 A.D.2d 703, 703 (N.Y. App. Div. 1995) (internal citations

omitted).74 Id75 Turner, 327 F. Supp. 2d at 180-81.76 See infra Part II.B.77 Lambert, supra note 55.

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of procedural hurdles that limit a court's ability .to simply lay out all ofthe available evidence, and reconsider the conviction.

B. Prosecutorial Misconduct

In raising a claim of prosecutorial misconduct, a defendant canassert that actions by the prosecution constituted "misrepresentation orfraud,"7

1 were "improper and prejudicial,"7 9 or that evidence presentedat trial was known or should have been known by the prosecution to befalse." Generally, the claim does not implicate actual innocence be-cause it deals with prejudice amounting to an unfair trial;" but in in-stances in which the prosecution presents evidence known to be false orwithholds exculpatory evidence, a claim of actual innocence can arise.

In People v. Bermudez, prosecutorial misconduct consisting ofpresenting false evidence was sufficient to warrant a vacation of the con-viction, and was part of the court's decision ultimately to dismiss theindictment on the basis of "actual innocence." The case began in 1991,when Bermudez was arrested and charged with the murder of RaymondBlout.8 2 The prosecution's "central witness" 3 was Efraim Lopez, whoinformed police that the shooter was a man nicknamed "Woolu,"" andidentified Bermudez from a photo lineup." After Bermudez was con-victed, Lopez admitted that he identified Bermudez from the photolineup only after being in police custody for almost thirty hours, that he

78 N.Y. CRIM. PROC. LAw 5 440.10(1)(b) (Consol. 2011) ("The judgment was procured byduress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting foror in behalf of a court or a prosecutor.").

79 Id. § 440.10(1)(f) ("Improper and prejudicial conduct not appearing in the record oc-curred during a trial resulting in the judgment which conduct, if it had appeared in the record,would have required a reversal of the judgment upon an appeal therefrom.").

80 Id. § 440.10(1)(c) ("Material evidence adduced at a trial resulting in the judgment wasfalse and was, prior to the entry of the judgment, known by the prosecutor or by the court to befalse.").

. 8 People v. Ortiz, 69 A.D.3d 490, 490-91 (N.Y. App. Div. 2010) (vacating a convictionand ordering a new trial on the grounds of prosecutorial misconduct where the prosecutor at-tempted to impeach the defendant through his initial entry of a not guilty plea, violated a courtorder not to elicit the details of the defendant's prior convictions, introduced a mug shot of thedefendant's non-testifying girlfriend and repeatedly referred to her criminal history, and statedduring summation that the defendant "knows he did it," and was waiting for the jury to "givehim his razor back and let him walk out the door").

82 People v. Bermudez, No. 8759/91, 2009 WL 3823270, at *2 (N.Y. Sup. Ct. Nov. 9,2009).

83 Id. at *2.84 Id.85 Id. at *34.

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chose Bermudez out of fear that he would otherwise be charged as anaccessory to murder, and that he had never seen Bermudez prior to thetrial.86 Moreover, during the trial, the prosecutor did not present anyother witness who could identify Bermudez as "Woolu,"17 convincedLopez to testify through a cooperation agreement in which Lopez wouldnot be prosecuted," and was unable to show that Lopez knew of a mannamed "Most," which was Bermudez's nickname. 9 The court foundthis evidence sufficient to vacate the conviction and order a new trial onthe grounds that the prosecutor "knew or should have known" that Lo-pez's testimony at trial was false.90

While Bermudez dealt with a situation in which the prosecutorpresented false evidence, the Turner case involved prosecutorial miscon-duct based on the prosecution's failure to turn over exculpatory evi-dence. In Turner, discussed supra, the New York state courts refused togrant Turner post-conviction relief, even after he demonstrated thatWilliam Clarke, the alleged victim of the crime and the prosecution'sonly eyewitness, admitted to lying about his criminal record and aboutthe events surrounding the crime.9' While the district court could notconsider the newly discovered evidence claim,9 2 it was able to considerthe prosecutorial misconduct claim raised in Turner's second appeal,based on the failure of the prosecution to turn over evidence that Clarkehad a prior criminal record, which would have raised the question of hiscredibility as a witness at trial.93

The district court found that the prosecution's failure to turn overthese records despite Turner's pre-trial request constituted a violation ofBrady v. Maryland, in which the Supreme Court of the United Statesheld that the prosecution has a duty to turn over potentially exculpatory

86 Id87 Id. at *7.

88 Id. at *38.

89 Id at *4.

90 Id at *16.91 See supra Part II.A.92 As discussed in Part III, infra, federal courts can only consider claims that raise constitu-

tional issues. A newly discovered evidence claim does not raise a constitutional issue. Herrera v.

Collins, 506 U.S. 390, 398 (1993) ("[T]he existence merely of newly discovered evidence rele-

vant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.") (internal

citations omitted). Turner was therefore limited to raising the prosecutorial misconduct claim,

which raised the constitutional issue of a "fair trial," as protected by the Due Process Clause of

the Fourteenth Amendment.93 Turner v. Schriver, 327 F. Supp. 2d 174, 180-81 (E.D.N.Y. 2004).

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evidence.9 4 Moreover, the court explained that since Clarke committedperjury while testifying against Turner-by claiming he did not have acriminal record-the jury never had the chance to consider the potentialunreliability of the only eyewitness who could identify Turner.95 Thus,the finding of prosecutorial misconduct was "not only for failure to turnover material impeachment evidence, but also for eliciting testimonythat the prosecutor should have known was false."9 6 As a result, theconviction was vacated and a new trial was ordered.9 7 Ultimately, theDistrict Attorney decided not to retry Turner.9 8

Both Bermudez and Turner demonstrate the difficulties of ob-taining post-conviction relief based on prosecutorial misconduct. In-deed, while Bermudez's 2009 appeal was ultimately successful, it issignificant to note that he had brought ten other appeals over the spanof his eighteen-year incarceration, all of which had been denied.99 Inaddition, had the court not recognized Bermudez's claim of "actual in-nocence," he would have only received a new trial, and would not havehad the charges dismissed in light of the other exculpatory evidence inhis case.' In Turner's case, New York state courts completely failed toprovide any relief for his claims, and it was not until federal courts be-came involved that his conviction was vacated.

C. Post-Conviction DNA Testing

New York provides access to post-conviction DNA testing if thedefendant can show that, had the results been admitted at trial, thereexists a "reasonable probability that the verdict would have been morefavorable for the defendant."o' As with a claim of newly discoveredevidence, post-conviction DNA testing is not available, to a defendantwho pleads guilty."0 2 Moreover, in the 2009 case of District Attorney's

Office v. Osborne, the Supreme Court of the United States made clearthat there is no constitutional right to post-conviction DNA testing. 0 3

94 Id. at 183-84, 187.95 Id. at 185.96 Id. at 186.97 Id. at 187.98 See Turner v. New York, 14 Misc. 3d 699 (N.Y. Ct. Cl. 2006).99 John Eligon, Man Jailed for '91 Murder is Cleared by Judge, N.Y. TIMES, Nov. 12, 2009,

http://www.nytimes.com/2009/11/13/nyregion/13freed.html.100 See infra Part II.D.101 N.Y. CRIM. PROC. LAw § 440.30(1-a) (Consol. 2011).102 People v. Byrdsong, 33 A.D.3d 175 (N.Y. App. Div. 2006).103 Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2322 (2009).

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As a result, a state is not required to provide any access to post-convic-tion DNA testing, but if it does, its procedures must "comport withfundamental fairness."104 On this basis, the United States Court of Ap-peals for the Second Circuit, in McKithen v. Brown, found that the NewYork statute providing for post-conviction DNA relief was constitution-ally sufficient.o 5 The court had little difficulty reaching this decision,because it made clear that the Alaska statute at issue in Osborne is "morestringent" than the New York statute, and therefore, the New York stat-ute certainly meets constitutional requirements. 1 o6

Nevertheless, that the New York statute is less "stringent" does notguarantee that a New York court will grant access to post-convictionDNA testing. Indeed, in the separate cases of Douglas Warney andFrank Sterling-individuals eventually exonerated through the use ofpost-conviction DNA testing-the courts had originally denied the cru-cial testing requested in both cases, and relief ultimately came from pres-sure on prosecutors and not through New York's post-convictionstatutes.

Douglas Warney was convicted in 1997 of killing William Beason,a civil rights activist, in large part based on a confession he gave whichwas "riddled with errors."107 Once more sophisticated DNA testing be-came available, Warney, in 2004, petitioned the court for access to post-conviction DNA testing.'08 The District Attorney's Office opposed the

testing, stating "DNA results now would add nothing significant towhat we already know or what the jury knew at the time of the trial," 09

and the court denied Warney's motion and-rejected claims that someoneelse could have committed the crimes as "too speculative."" 0

Unbeknownst to the defendant, the District Attorney's Office de-cided to conduct testing on the samples the next year, based on thetheory that Warney may have had an accomplice, and thus a potentialmurderer was still walking the streets.' The tests not only excludedWarney, but also pointed to Eldred Johnson Jr., a New York inmate

104 Id. at 2320 (internal citations omitted).105 McKithen v. Brown, 626 F.3d 143, 153-54 (2d Cir. 2010).106 Id107 Gary Craig, Innocent Man Freed After 10 Years in Prison, ROCHESTER DEMOCRAT AND

CHRON. (May 6, 2006), http://www.truthinjustice.org/douglas-warney.htm.108 Id

109 Id

110 Id

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serving time for other crimes.1 12 Johnson confessed to the murder whenhe was approached by prosecutors, and stated that he acted alone andthat he did not know Warney.H3 It was only after this evidence came tolight that the District Attorney's Office acted to have Warney's convic-tion vacated."'

Like Warney, Frank Sterling was also convicted of murder based ona confession, which he had given after a thirty-six hour trucking shiftfollowed by an eight-hour police interrogation."' Over the course ofthe next eighteen years, Sterling brought six appeals in which he arguedfor a new trial on the grounds that the evidence implicated a mannamed Mark Christie, an original suspect in the murder.' 16 His appealswere unsuccessful, despite presenting evidence that Christie had braggedabout committing the murder, providing tips to investigators about howChristie frequented the same path where the murder occurred and lovedto shoot a BB gun-the murder weapon-and highlighting the fact thatChristie was convicted of a different murder several years later." 7 Fi-nally, in 2004, the trial court permitted testing on a hair that was foundin the victim's hand,"' but denied testing on the "victim's clothing,vaginal swabs, fingernail scrapings, and/or pieces of the bloodstained BBgun,"119 on the ground that Sterling had not established a "reasonablenexus between the testable items, the particular facts and circumstancessurrounding his conviction and how DNA testing of such items wouldhave produced a more favorable result at trial."12 0

The hair turned out to belong to the victim, and it was not until2006 that the District Attorney's Office agreed to additional testing ofthe other items.121 It was this testing that not only excluded Sterling,

112 Id113 Id.114 Id115 Know the Cases: Frank Sterling, INNOCENCE PROJECr, http://www.innocenceproject.org/

Content/FrankSterling.php (last visited Apr. 28, 2012).116 Gary Craig, Missteps Kept Frank Sterling in Prison, ROCHESTER DEMOCRAT AND CHRON.

(May 9, 2010), http://www.democratandchronicle.com/article/20100509/NEWS01/5090351/Missteps-kept-Frank-Sterling-prison.

117 Id

118 People v. Sterling, 787 N.Y.S.2d 846, 852 (N.Y. Sup. Ct. 2004).119 Id.120 Id. at 854.121 Know the Cases: Frank Sterling, supra note 115.

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486 CARDOZO PUB. LAW POLICY & ETHICSJ. [

but also implicated Christie.12 2 In 2010, eighteen years after he waswrongfully convicted, Frank Sterling's conviction was vacated. 1 2 3

What is truly telling about both of these cases is that despite theavailability of post-conviction DNA testing in New York, the crucialtesting in both cases was denied by the courts, and relief came onlywhen prosecutors agreed to conduct the testing independent of anycourt order. As with claims based on newly discovered evidence andprosecutorial misconduct, the procedural impediments to post-convic-tion DNA testing raise a host of problems for the defendant claimingactual innocence.

D. Violation of the Defendant's Constitutional Rights

The final ground for post-conviction relief provided by New Yorkis that evidence presented at trial cannot be obtained in violation of theNew York State or United States Constitution,124 nor can the convictionitself have violated the New York State or United States Constitution. 12 5

The 2003 decision in People v. Cole interpreted this ground for reliefand held that the conviction or incarceration of an innocent person vio-lates the New York State Constitution.12 6 The decision broke with Su-

preme Court of the United States precedent,127 and marked the firsttime that a freestanding claim of actual innocence was recognized inNew York. While the court in Cole ultimately denied Cole's claim ofactual innocence, it provided a twenty-three-page decision in which itpresented an in-depth analysis recognizing the existence of the claim ofactual innocence in New York, and then set the standard for a defendantto proceed on such a claim.

The Cole court first looked to precedent from the Supreme Courtof the United States and explained that the Court made clear in the1993 decision of Herrera v. Collins that the incarceration of an innocentindividual, provided that a state makes available executive relief-such

122 Id123 Id.124 N.Y. CRIM. PROC. LAw 5 440.10(1)(d) (Consol. 2011).125 Id. § 440.10(1)(h).126 People v. Cole, 765 N.Y.S.2d 477 (N.Y. Sup. Ct. 2003).127 Herrera v. Collins, 506 U.S. 390 (1993) (holding that the incarceration of an innocent

individual, provided that a state makes available executive relief-such as a pardon-does not

violate due process); Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009) (explain-

ing that the question of whether a claim of actual innocence is a question with which the

Supreme Court has "struggled with" over the years, and remains an "open question").

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as a pardon, does not violate due process. 12 Since New York providesfor an executive pardon,129 the incarceration of an actually innocent per-son would not violate the United States Constitution under Herrera.Finding no grounds for relief from the Supreme Court, the Cole courtnext looked to precedent from New York and found inconsistencyamong New York courts that had occasion to address the issue of theincarceration of an actually innocent defendant.13 0 The court alsonoted that a pardon as a remedy for the wrongfully convicted has beenpointed out by the New York Court of Appeals as being inadequate.131

Next, the Cole court surveyed the approaches adopted by severalstates, and here too, found that while many states have followed Su-preme Court precedent and have held that a freestanding claim of actualinnocence is insufficient reason to provide post-conviction relief,'3 2 sev-eral states have held that the conviction and/or incarceration of an actu-ally innocent person is unconstitutional.1 33 Finally, the court turned tothe New York State Constitution and recognized that it grants an ac-cused greater rights than those provided for in the United States Consti-tution, finding that "the ends of acquitting the nonguilty is an essentialpart of the [New York State] Constitution."' 3 ' As a result, the courtheld that the "conviction of and/or punishment imposed upon an inno-cent person violates the New York State Constitution." 3

1

Once the court had determined that a claim of actual innocenceexists as a legitimate ground for post-conviction relief, it set out the

128 Herrera, 506 U.S. at 415 (explaining that executive clemency has been a traditional "fail

safe" for claims of actual innocence).129 Cole, 765 N.Y.S.2d at 482.130 Id. at 482-83. In People ex rel. Prisament v. Brophy, 38 N.E.2d 468 (N.Y. 1941), the

court noted that in an "ideal system" a person convicted of a crime should be granted an unbri-

dled opportunity to present evidence of innocence at any point. Nevertheless, "in practice,

inflexible rules of procedure may deny to a person wrongfully convicted any further access to the

court." In such situations, the "only means of redress" comes in the form of executive pardon.

Conversely, in In re Kaufman, 245 N.Y. 423 (1927), the court stated that in "[r]are instances

... the administration of justice would be subject to reproach if an implacable law of remedies

were to close the door forever" to the hope of relief.131 Cole, 765 N.Y.S.2d at 482-83 (citing Lyons v. Goldstein, 290 N.Y. 19, 27 (1943)).132 Id. at 484 (citations omitted).133 Id. (citations omitted).134 Id. (focusing on Section 5 and/or Section 6 of Article 1-prohibiting the deprivation of

liberty without due process, and prohibiting cruel and unusual punishment, respectively-as the

basis for this right).135 Id. (finding that this right is included as part of N.Y. CuM. PROC. LAw § 440.10(1)(h)

(Consol. 2011), which "provides for the vacating of a judgment which was obtained in violation

of an accused's constitutional rights").

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488 CARDOZO PUB. LAW POLICY d& ETHICSJ. [

standard for relief. The court explained that it must balance the state'sinterest in the finality of the conviction, which comes with a presump-tion that the convicted person is in fact guilty, with the interests of bothsociety and the actually innocent person."3 6 In balancing these interests,the court determined that a defendant making a claim of actual inno-cence must establish by "clear and convincing evidence that no reasona-ble juror could convict the defendant for the crimes" he or she wasconvicted.1 37 As part of such a determination, the court conducting thehearing should consider "any reliable evidence whether in admissibleform or not. "13 Consideration of all relevant evidence, regardless ofadmissibility, is permitted because the question of actual innocence isnot whether the government can prove the defendant's guilt beyond areasonable doubt, but whether the individual is actually innocent.13 9

Ultimately, the court found that Cole had not met the burden.1 40

Nevertheless, a few years later, in 2009, two separate New York courts,relying on the Cole decision, vacated the convictions of two men-Jonathan Wheeler-Whichard and Fernando Bermudez-based on thenewly created claim of "actual innocence." Just like the Turner court-which summarily dismissed an appeal on the grounds of the unreliabil-ity of recantation testimony'' -the court in People v. Wheeler-Which-ard acknowledged that "there is no form of proof so unreliable asrecanting testimony,"142 but explained that taken together with otherevidence, and in the proper context, such testimony can provevaluable. 1

As part of a motion for post-conviction relief, in which Whichard-Wheeler claimed, inter alia, that he was actually innocent, he presentedtwo witnesses who had recanted their testimony,144 four alibi witnesses

136 Id. at 486.137 Id138 Id.139 Id.140 Id. at 487.141 People v. Turner, 628 N.Y.S.2d 122 (N.Y. App. Div. 1995) (internal citations omitted).142 People v. Wheeler-Whichard, 25 Misc. 3d 690, 694 n.13 (N.Y. Sup. Ct. 2009) (citations

omitted).

143 Id. at 694.144 Id at 692-94. One witness admitted that he was not even at the scene of the shooting,

and the other witness claimed that she had been given drugs as "payment" for her false confes-sion. Id. at 692 n.7.

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who had not been called at trial, "I and two other witnesses who corrob-orated the alibi witnesses. 14 6 Taken together, the court found that thisevidence was sufficient to show that Whichard-Wheeler was neither themurderer, nor even at the scene of the crime when it had occurred.14 7

As a result, the court, relying on Cole, found that Whichard-Wheelerhad met the "high burden" of proving with "clear and convincing evi-dence" that he was actually innocent. 14 8 Based on the record, the courtconcluded that "fail[ing] to remedy this injustice or fail[ing] to exoner-ate [the] defendant would be unconscionable."14 9

In Bermudez-discussed supra with regard to prosecutorial miscon-duct' 5o-the court also considered whether Bermudez met the Colestandard for demonstrating actual innocence. In addition to consider-ing the false testimony of Efraim Lopez, the court also focused on the"unduly suggestive" and "coercive" identification procedures used onfour of the individuals who had. identified Bermudez and testifiedagainst him, but later recanted their testimony."' In addition, a fifthidentification witness admitted that he "never got a good look" at theshooter, 152 there was a complete lack of any forensic evidence linkingBermudez to the crime,15 3 and there was no evidence presented by theprosecution to demonstrate that Bermudez's alibi witness was not credi-ble.154 Finally, the court noted that at the very least, a new trial waswarranted in light of the prosecution's abandonment of their theory ofthe case at trial.155 Taking into consideration the above evidence, the

145 Id. at 694-95. The prosecution conceded that not calling these witnesses constituted

ineffective assistance of counsel, which by itself, would have automatically afforded Whichard-

Wheeler a new trial. Id. at 695 n.18.146 Id. at 694.147 Id at 694, 702.148 Id. at 702.149 Id150 See supra Part II.B.

151 People v. Bermudez, No. 8759/91, 2009 WL 3823270, at *17-18 (N.Y. Sup. Ct. Nov. 9,2009).

152 Id. at *30.153 Id. at *36 ("There has never been any forensic evidence to link the defendant to this

crime, no blood, no fingerprints, not even a sighting of his car. The People never obtained a

search warrant for the defendant's home. Despite the prosecutor's gratuitous statement in histrial summation that the defendant got rid of the gun . .. there was never a shred of evidence to

support this claim. The prosecution made no effort to search the defendant's apartment for a

gun, for the clothes the shooter was alleged to have worn, or for the gold Gucci link chain the

shooter was wearing.").154 Id155 Id at *38.

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490 CARDOZO PUB. LAW POLICY & ETHICSJ

court, citing to Cole and Whichard-Wheeler, found that Bermudez haddemonstrated his actual innocence, and thus vacated the conviction anddismissed the indictment.'

Ultimately, while the decisions in Cole, Whichard- Wheeler, andBermudez provide for a specific claim of actual innocence, which evenproved successful for the latter two defendants, no appellate court inNew York has recognized the claim.'1 7 Without explicit statutory ap-proval, the standard and the claim are still available only in the discre-tion of a trial court judge. While it may provide temporary relief,whether the Cole standard will ever be firmly established as a formalroute for claiming actual innocence is still an open question.

III. THE ELUSIVE CLAIM OF ACTUAL INNOCENCE IN

FEDERAL COURTS

While New York courts have provided some procedurally tenuousavenues for relief in cases of actual innocence, federal courts have notbeen as forthcoming. The Full Faith and Credit Clause precludes fed-eral courts from hearing appeals from state proceedings."' In contrast,while the Supreme Court does have jurisdiction to hear appeals fromstate proceedings, it also has the discretion not to hear a direct appeal bya state defendant from the highest state court.'" Cases that are not ofnational importance are frequently denied review without comment.16 0

As a result of such jurisdictional limitations, state defendants generallylack the broad array of post-conviction remedies in the federal courtsthat are available to them in the state courts.' Nevertheless, federalhabeas corpus is the "principal exception" to this general rule.162

Federal habeas corpus is a civil remedy designed to allow a statedefendant to challenge the legality of his or her incarceration in a federal

156 Id. at *28.157 People v. Wheeler-Whichard, 25 Misc. 3d 690, 702 (N.Y. Sup. Ct. 2009).158 28 U.S.C.A. § 1738 (West 2012); Id. § 2254(d)(1).159 Id. § 1257.160 Indeed, of the 10,000 cases on the docket, review is granted in just about 100 cases. The

Justices' Caseload, SUPREMECOURT, http://www.supremecourt.gov/about/justicecaseload.aspx(last visited Apr. 28, 2012).

161 LARRY W. YACKLE, PosTcoNvIcroN REMEDIEs 71 (1981) ("It would be misleading tosuggest that state prisoners have meaningful access to many federal remedies. To be sure, suchremedies exist-before, during, and after trial. Yet their availability to state prisoners is, in themain, more theoretical than real.").

162 Id. at 72.

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2012] GUILTY UNTIL PROVEN INNOCENT 491

court, on the basis of an alleged constitutional violation.163 Tradition-ally, the right of federal habeas was limited to federal prisoners,16 4 andonly allowed a federal defendant to raise the narrow claim that the courtin which he or she was convicted lacked jurisdiction to render suchjudgment.16 5 This limited scope of federal habeas was later expanded toinclude state prisoners16 6 and claims involving constitutional viola-tions.1 6 7 Thus, in order for a state defendant to bring a federal habeasclaim, the claim must be "cognizable," meaning that it must implicate afederal right.' The Supreme Court has yet to recognize a claim ofactual innocence as a freestanding claim of relief, on the ground that itdoes not rise to the level of a constitutional right.169 The Second Cir-cuit Court of Appeals17 0 and the four federal district courts in New Yorkhave stood firmly behind Supreme Court precedent in holding that afreestanding claim of actual innocence is not a cognizable ground forhabeas relief.17 1

163 28 U.S.C.A. § 2254.164 Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73. See also Ex parte Dort, 44 U.S. 103, 104-

05 (1844) (explaining that Section 14 of the Judiciary Act of 1789 does not apply to stateprisoners).

165 LARRY W. YACKLE, FEDERAL COURTS: HABEAS CoRPus 30 (2d ed. 2010).166 Id. at 30-31.167 Id. at 31-32.168 Id. at 114.169 Herrera v. Collins, 506 U.S. 390, 404 (1993) (explaining that even though a claim of

actual innocence is not itself a constitutional claim, it can serve as a "gateway" through which a

defendant may pass to allow a federal court to hear a habeas petition that might otherwise bebarred); Schlup v. Delo, 513 U.S. 298, 324, 327 (1995) (settling conflicting precedent regarding

the standard of proof required for a showing of actual innocence and affirming precedent that a

claim of actual innocence can overcome procedural default); House v. Bell, 547 U.S. 518, 554-

55 (2006) (affirming precedent and finding that where "it is more likely than not that no

reasonable juror viewing the record as a whole would lack reasonable doubt" is sufficient to

satisfy the "gateway standard" to allow for consideration of his federal habeas claim); Dist. Attor-

ney's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009) (explaining that whether a constitutionalright of actual innocence exists is still an "open question").

170 The Second Circuit Court of Appeals has jurisdiction over federal cases arising out of

New York.171 McKithen v. Brown, 626 F.3d 143 (2d Cir. 2010) (explaining that the Supreme Court

has left "conspicuously unanswered" whether there exists a freestanding claim of actual inno-

cence, and even if such a right did exist, it would be a "high standard" for a defendant to meet);

Burton v. Conway, 2011 U.S. Dist. LEXIS 22560, at *8 (W.D.N.Y. 2011) (explaining that a

freestanding claim of actual innocence does not exist as a cognizable ground for habeas relief);

Quezada v. Ercole, 2010 U.S. Dist. LEXIS 120768, at *12 (S.D.N.Y. 2010) (explaining that

since the petitioner failed to "establish an independent constitutional violation that led to his

conviction, his innocence claim is not cognizable in this proceeding"); Drake v. Lavalley, 2010

U.S. Dist. LEXIS 19788, at *20-21 (N.D.N.Y. 2010) (explaining that while actual innocence

492 CARDOZO PUB. LAW POLICY & ETHICS J

Nevertheless, the Supreme Court has held that a claim of actualinnocence can act as a "gateway" 17 2 to federal court on a habeas petitionwhich would normally be denied as a result of "procedural default" instate court. A defendant "procedurally defaults" when he or she fails toraise a federal claim in state court that he or she later attempts to raise infederal court. 1 7 3 In such circumstances, the defendant is generally pre-cluded from having the federal court consider that claim.17 4 The pur-pose behind procedural default is to reinforce state procedural rules andthe finality of state court judgments,' 7 5 but can be overcome by a show-ing of reason for the default-"cause"-and a showing that the defaultresulted in harm to the defendant-"prejudice."1 7 6 In 1986, the Su-preme Court in Murray v. Carrier indicated for the first time that aclaim of actual innocence would satisfy this exception, explaining:"[W]here a constitutional violation has probably resulted in the convic-tion of one who is actually innocent, a federal habeas court may grantthe [habeas petition] even in the absence of a showing of cause for theprocedural default."1 77 The Court explained that the principles of com-ity and finality "must yield to the imperative of correcting a fundamen-tally unjust incarceration."1 7

' This exception has been reaffirmed by theCourt in several instances, and continues to be available.' 7 9

In 1996, the landscape of federal habeas changed with the passageof the Antiterrorism and Effective Death Penalty Act (AEDPA).' 80 Thepurpose of AEDPA was to limit habeas claims from state prisoners."'

may be used to overcome procedural default, the Supreme Court has not recognized a freestand-ing claim of actual innocence in a habeas proceeding); Bennett v. Conway, 2010 U.S. Dist.LEXIS 38136, at *9 (E.D.N.Y. 2010) ("Few rulings would be more disruptive of our federalsystem than to provide for federal habeas review of freestanding claims of actual innocence.")(quoting Herrera, 506 U.S. at 400).

172 Herrera, 506 U.S. at 404.173 YACKLE, supra note 165, at 263.174 Id.175 Id. at 264.176 Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (creating an exception to procedural default

whereby a defendant can proceed on a federal habeas claim, despite a procedural default, on ashowing of "cause" and "prejudice").

177 Murray v. Carrier, 477 U.S. 478, 496 (1986).178 Id. at 495 (quoting Engle v. Issac, 456 U.S. 107, 135 (1982)).179 See supra note 169.180 Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214

(codified as amended at 28 U.S.C. §§ 2241 et seq.).181 See Williams v. Taylor, 529 U.S. 362, 386 (2000) ("[The Antiterrorism and Effective

Death Penalty Act] plainly sought to ensure a level of 'deference to the determinations of statecourts,' provided those determinations did not conflict with federal law or apply federal law in

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The notable effects of AEDPA -on state petitioners include restrictionson successive habeas petitions, 1

12 more limited review by federal

courts,'8 3 and a one-year statute of limitations for a state defendant fil-ing a habeas claim in federal court.184

Whether actual innocence can act as a "gateway" to overcome thesenew requirements-as it is with regard to procedural default-remainsto be determined."' Either way, at the very least, AEDPA does notprovide any new avenues of relief for a petitioner attempting to bring afederal habeas claim of actual innocence, and if the exceptions are notexpanded, it may actually result in a further narrowing of the use of anactual innocence claim in federal court. Ultimately, barring recognitionby the Supreme Court that actual innocence can be raised as an inde-pendent ground for federal habeas relief-an unlikely occurrence"'-New York State courts serve as the most effective route for such relief.The next Part will discuss current attempts at reform in New York, andthen outline how an independent Innocence Commission would func-tion, and how it would address the gaps that exist in the current system.

IV. A MODEL FOR REFORM: A LOOK AT PROPOSED LEGISLATION

IN NEW YORK AND EXISTING POST-CONVICTION

RELIEF COMMISSIONS

As discussed in the Introduction, actual innocence has come intoincreased focus as part of reforming the criminal justice system since thefirst DNA exoneration in 1989.17 Yet, despite efforts such as North

an unreasonable way."); Duncan v. Walker, 533 U.S. 167, 179 (2001) (holding that the AEDPA"quite plainly serves the well-recognized interest in the finality of state court judgments").

182 28 U.S.C.A. § 2244(b)(1) (West 2012).183 Id. § 2254(b)(2).184 Id. § 2244(d)(1).185 The Second Circuit has not definitively answered whether a claim of actual innocence can

toll the statute of limitations imposed by AEDPA. Hurley v. Marshall, No. 08 CIV 00362(HB),2011 WL 781174, at *5 (S.D.N.Y. Mar. 7, 2011). Nevertheless, it has established a four-prongtest for use by the district courts to determine whether a claim of actual innocence may besufficient to potentially toll the statute of limitations. Whitley v: Senkowski, 317 F.3d 223,223-24 (2d Cir. 2003). The petition was denied by the district court on remand. Whitley v.Senkowski, 567 F. Supp. 2d 490, 501 (S.D.N.Y. 2008) (determining that the petitioner had notmet the burden under the four-prong test).

186 The Supreme Court has had numerous chances since 1993 to address and considerwhether actual innocence can serve as a cognizable claim under federal habeas, and has repeat-edly opted not to pass judgment on the issue, and has even gone as far as stating that it does notexist as a claim. See supra note 169.

187 See supra Introduction.

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Carolina's Innocence Commission and several task forces that were es-tablished by states-including New York-to investigate causes of con-victions of the actually innocent, tangible reform has been slow to takehold. Indeed, the New York legislature has yet to take any substantivemeasure to address actual innocence, despite the recognition that at leastninety-five individuals in New York were convicted of crimes they didnot commit in the last twenty years alone."'

The purpose of this final Part is to explain the strengths and weak-nesses of the commissions established by the United Kingdom andNorth Carolina-the only two such commissions currently in exis-tence-with the purpose of explaining how a commission could func-tion in New York to provide effective relief for those claiming actualinnocence. The Part will begin with a look at the newly proposed Ac-tual Innocence Justice Act, which is a positive step in providing relief,but ultimately falls short of relief needed and if passed, could even act toforestall future reforms.

A. The Actual Innocence Justice Act

New York's most substantive step toward reforming its criminal

justice system to provide effective relief for those claiming actual inno-cence is the Actual Innocence Justice Act (the Act). 1a9 Originally pro-posed in the New York Assembly in 2009, the Act is designed toestablish "actual innocence" as a freestanding ground for challenging aconviction'"o and takes steps to "remove[ ] certain roadblocks that canprevent the wrongfully convicted from presenting proof that conclu-sively establishes their innocence."1 9 ' If passed, the Act would amendthe New York post-conviction statute to include a freestanding claim ofactual innocence. In short, the Act codifies the court's decision in Cole,and provides that where a defendant can demonstrate "by clear and con-vincing evidence that no trier of fact would have convicted the defen-dant under a reasonable doubt standard[,]"1 9 2 the court "shall dismiss

188 See supra Introduction.189 Actual Innocence Justice Act of 2010, S6234C-2009, 2009-2010 Sen., Reg. Sess. (N.Y.

2009) [hereinafter S6234C], available at http://open.nysenate.gov/legislation/bill/S6234C-2009.

190 Eric T. Schneiderman, Sen. Schneiderman, Assm. Jefies, Civil Rights Groups Announce

Actual Innocence' Bill to Evonerate Wrongly Convicted, NEW YOu STATE SENATE (Oct. 21,

2009), www.nysenate.gov/print/248 12.191 Id.192 S6234C, supra note 189, § 2.

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the accusatory instrument."1 93 Therefore, in addition to providing for afreestanding claim of actual innocence, the Act would also grant thecourt power to dismiss the charges, as opposed to merely vacating theconviction and ordering a new trial. In addition, as in Cole, the Actwould allow a court to consider "all available evidence," 94 thus avoidingissues of trial admissibility, which hinders a claim of newly discoveredevidence.

The legislative history makes clear that the Act would address "rareand exceptional cases," but explains that "the administration of justicewould be deeply flawed if a set of procedural restrictions could perma-nently foreclose any option of overturning a wrongful conviction . .. toan innocent defendant."' 95 The legislative history also acknowledges ex-isting procedural roadblocks and explains that "[t]hese amendments areintended to require judges to treat claims of actual innocence with theseriousness they warrant, and to permit them to adjudicate reasonableclaims of innocence without becoming entangled in legal uncertaintiesand technicalities. '9 Indeed, it has been recognized that "New YorkState law offers only limited hope for relief by establishing proceduralobstacles that can deprive [defendants] of having an innocence claimthoroughly heard."197 These statements demonstrate the clear intentthat the purpose of the Act is not to open the proverbial floodgates or todrastically alter the principles of the criminal justice system in NewYork. Rather, it is to acknowledge the reality that conviction of theinnocent does occur in "rare and exceptional cases,"' and that suchindividuals ought to be entitled to relief without being constrained byprocedural impediments.

The Act has received strong support from advocates for criminal

justice reform. For example, Glenn Garber, Director of the ExonerationInitiative, stated that the Act "is a tremendous step toward justice forwrongfully convicted and factually innocent prisoners in New York.While procedural barriers serve a purpose in limiting frivolous claims,they must yield in cases where compelling evidence of innocence comesto light after a conviction for justice to prevail."' 99 David Loftis, Man-

193 Id. § 3.194 Id. 5 2 (emphasis added).195 S6234C Memo, supra note 6.196 Id.197 Schneiderman, supra note 190.198 S6234C Memo, supra note 6.199 Schneiderman, supra note 190.

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aging Attorney of the -Innocence Project, explained that since DNA evi-dence is only available in 5%-10% of cases, the Act is "critical forhelping people prove their innocence when DNA testing is notpossible."2 00

Given the current state of New York criminal procedure law, theAct does provide several significant reforms. Most importantly, the Actrecognizes a freestanding claim of actual innocence.20 1 Beyond that, theAct allows the court to consider "all" relevant evidence, regardless ofadmissibility, and grants the court the authority to dismiss the charges,as opposed to merely vacating the conviction and remanding the case fora new trial.20 2 Finally, the Act also provides a statutory basis for, andcodification of Cole, thus increasing the likelihood that New York courtswill more uniformly administer the process.

Admittedly, each of these provisions is an important and signifi-cant step toward reform. Nevertheless, there are several weaknesses inthe Act, which may be significant enough to limit its degree of substan-tive reform. Notably, the Act fails to define "actual innocence." Whilethe underlying intent of the Act would lend strong support for the defi-nition provided in this Article-that one is actually innocent when heor she was not the person who committed the crime-such a definitionis not found in the Act. As a result, it could lead to arguments that"actual innocence" ought to be interpreted as the broader category of"wrongful convictions," as discussed in Part I. Under this broadeneddefinition, a defendant might be "actually innocent" of murder if he orshe lacked the requisite intent, and thus should have only been foundguilty of manslaughter. Similarly, another possible interpretation of thewording could lead to the argument that one is "actually innocent"where the evidence was insufficient to prove guilt. Again, even thoughsuch interpretations would almost certainly run counter to the purposeof the Act, absent a definition, defendants would have an incentive tolitigate these claims, and courts would be forced to pass judgment onthese and other possible interpretations. The result of this litigationcould lead to an expanded and unintended definition.

Moreover, a defendant claiming actual innocence would still haveto bring his or her claim to the trial court in which he or she was con-victed, meaning that the hearing could very well be presided over by

200 Id201 S6234C, supra note 189, § 2.202 Id. § 3.

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either the same trial judge, or a judge who had some connection to thecase. Such a result would be troubling because it would place the trialjudge in a position where he or she would have to assess evidence andpass judgment on a case with which that judge had been intimatelyinvolved. Whether the judge could objectively review and evaluate thecase from a different perspective is questionable. The Act also does notspecify whether it would also include defendants who pleaded guilty, oronly those convicted following a trial. Given that New York courts haveexplicitly held that certain post-conviction relief is unavailable to de-fendants who pleaded guilty,2 0 3 the Act leaves this question conspicu-ously open.

Finally, on a more conceptual level, it cannot be ignored that "in-nocence is different,"2 04 and thus there is merit to an argument thatlumping a claim of actual innocence alongside other potential post-con-viction remedies-many of which have to do with procedural errors andsufficiency of evidence, instead of innocence-may not afford it the in-dependent consideration it deserves. In addition, passing the Act mightseem to be a step toward reform, but may actually hinder efforts tocreate the relief necessary, because it might create a false sense of securitythat reform has occurred, and the issue has been addressed.

As the next. section argues, establishing an Innocence Commissionmodeled on the North Carolina's Innocence Inquiry Commission ad-dresses these concerns and creates a truly independent body to addressclaims of actual innocence. Prior to discussing the North CarolinaCommission, a brief look at the Criminal Cases Review Commission,established by the United Kingdom, is instructive in revealing the po-tential shortcomings of such a commission as a means of drafting legis-lation to avoid such pitfalls.

B. Establishing an Innocence Commission

i. The Criminal Cases Review Commission in the United Kingdom

In 1997, the United Kingdom established the world's first extra-judicial body designed to investigate "miscarriages of justice."20 5

Known as the Criminal Cases Review Commission (CCRC), the CCRC

203 See supra note 40.204 See supra text accompanying note 1.205 About Us, CiuMINAL CAsEs REVIEW COMMISSION, http://www.ccrc.gov.uk/about.htm

(last visited Apr. 28, 2012).

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has completed review of over 12,500 cases since 1997.206 An importantaspect of the CCRC is that it was designed to investigate all forms of"wrongful convictions"-as addressed in Part I of this Article 2 0 7-andthus is not solely focused on cases of actual innocence.20 8 Instead, inaddition to cases of actual innocence, the CCRC is empowered to re-view cases on other grounds, such as unfair sentencing or cases wherelesser-included crimes might be appropriate. 2 0 9 As a result, the statisticsthat have been produced by the CCRC are somewhat misleading for ourpurposes.

For example, of the over 12,500 cases reviewed, the CCRC hassent 449 to the Court of Appeal for further review.2 10 Of these 449cases, the CCRC website states that 314 were "quashed," 130 "upheld"and 5 "reserved." 2 1 1 Yet, the significance of "quashed" is not clear, as itincludes reduction of an offense, such as murder to manslaughter, andalso includes cases in which a defendant was afforded a new trial, andthen was subsequently convicted a second time.2 12 In addition, a closerlook at some of the convictions "quashed" reveals that they includelesser crimes such as: "dishonestly obtaining a telecommunication ser-vice," "allowing a dog to be dangerously out of control in a publicplace," and even "keeping a disorderly house." 2 1 3

While the CCRC was initially established because serious convic-tions, such as murder, were being rejected by the Court of Appeal, andwhile in its early years the CCRC was considered "valuable and produc-tive," it has been argued that in more recent years the CCRC is nothingmore than a "fig leaf," which allows ministers to deflect criticism anddirect the blame for problems with the criminal justice system else-where.2 14 Moreover, with such a backlog of cases, many meritoriousclaims are forced to sit for years until the CCRC can evaluate them.2 15

206 Case Library. Case Statistics, CRIMINAL CAsEs REVIEW COMMISSION, http://www.ccrc.gov.uk/cases/case_44.htm (last visited Apr. 28, 2012).

207 See supra Part I.208 Bob Woffinden, The Criminal Cases Review Commission has failed, GUARDLAN (Nov. 30,

2010), http://www.guardian.co.uk/commentisfree/libertycentral/2010/nov/30/criminal-cases-re-view-commission-failed.

209 Id210 Case Library Case Statistics, supra note 206.211 Id212 Woffinden, supra note 208.213 Id214 Id215 Id.

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That said, not everyone is skeptical. Supporters argue that critics focus

on what the CCRC does not do, as opposed to focusing on what it does

accomplish: providing review to arguably innocent individuals who

would not otherwise be afforded relief.2 16 In addition, establishment of

the CCRC has generated awareness of the issue of wrongful convictions,

and efforts by independent defendant advocate groups should be a wel-

come contribution, and should not be taken as a sign that the CCRC is

failing its mission.2 17 Indeed, awareness of the issue of wrongful convic-

tions certainly cannot be understated, and activism to campaign for re-

form is a crucial part of the criminal justice system.

Ultimately, while supporters of~ the CCRC do have valid points,

those critical of the CCRC have exposed glaring issues that cannot be

overlooked. In stark contrast, the North Carolina Innocence InquiryCommission tackles these issues head on, and is founded on a model

that focuses solely on innocence. It meticulously patches the cracks ex-

posed by both New York's Actual Innocence Justice Act and the CCRC.

ii. The North Carolina Innocence Inquiry Commission

In 2007, ten years after the establishment of the CCRC, North

Carolina established the Innocence Inquiry Commission (the Commis-

sion). In doing so, North Carolina became the only state to establish anindependent commission specifically designed to consider cases of actual

innocence, as opposed to the broader category of all wrongful convic-

tions.' As such, the Commission rejects cases brought on the groundsof guilty of a lesser offense, diminished capacity, and self-defense, since

such claims would not implicate actual innocence.2 1 9 In addition, the

Commission allows defendants to bring claims in cases in which they

pleaded guilty, as opposed to being convicted following a trial.22 0

In contrast with the CCRC or the Actual Innocence Justice Act,the North Carolina statute explicitly defines actual innocence as:

A claim on behalf of a living person convicted of a felony . .. asserting

a complete innocence of any criminal responsibility for the felony forwhich the person was convicted and for any other reduced level of

216 Jon Robins, Criminal Cases Review Commission Comes Under Fire, TIMEs (Jan. 21, 2010),http://www.thetimes.co.uk/tto/law/columnists/article2217950.ece.

217 Id218 N.C. GEN. STAT. § 15A-1461(201 1).219 Id220 Id. § 15A-1468(c).

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criminal responsibility relating to the crime, and for which there issome credible, verifiable evidence of innocence that has not previouslybeen presented at trial or considered at a hearing granted through postconviction relief.2 2 1

As with the Actual Innocence Justice Act, the North Carolina statuteacknowledges that it establishes an "extraordinary procedure," 2 2 2 butunlike the proposed New York statute, it does not merely amend theNorth Carolina's post-conviction relief statute. Instead, it creates awholly new independent body, specifically designed to consider suchclaims.

The Commission consists of eight voting members, and includes ajudge, prosecutor, defense attorney, victim advocate, member of thepublic, sheriff, and two additional unspecified members.22 3 Priority isgiven to cases in which the convicted person is only incarcerated for thecrime for which he or she alleges actual innocence. 2 24 Given that itexists as an independent entity, the Commission is empowered to com-pel the appearance and testimony of any witnesses and the productionof evidence.22 5 In addition, the Commission is entitled to consider "allrelevant evidence," 2 26 thus avoiding issues of trial admissibility. Finally,"a claim of actual innocence may be referred to the Commission by anycourt, person, or agency." 2 2 7

After hearing all of the evidence in a specific case, the eight mem-bers of the Commission vote to determine whether the case should pro-ceed to a three-judge panel for final review.22 8 It is notable that evenafter the Commission determines that the case should be sent to review,a three-judge panel is chosen for such a task, as opposed to merely send-ing the case back to the trial court. This demonstrates the differencebetween cases of actual innocence and other post-conviction remedies.

221 Id § 15A-1460.222 Id 15A-1461.223 Id 15A-1463.224 Id § 15A-1466. The premise here is that if a person is incarcerated on other crimes,

even if found actually innocent of one crime, he or she will still have to finish serving the

remainder of his or her sentence. Conversely, a defendant, who is only incarcerated for thecrime in which he or she is claiming actual innocence, will be able to be released immediately

upon a finding of actual innocence.225 Id %§ 15A-1467(d), 15A-1468(al).226 Id § 15A-1468 (emphasis added).227 Id § 15A-1467(a) (emphasis added).228 Id. § 15A-1468(c).

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A case merits judicial review if the Commission determines that there is"sufficient evidence of factual innocence." 2 2 9 In cases in which the de-fendant was convicted following a trial, five votes are required by theCommission to send the case for final consideration, and in cases inwhich the defendant pleaded guilty, all eight members must voteunanimously. 230

If a case receives the required number of votes, it is then heard byan independent three-judge panel comprised of judges who were not thetrial judge and otherwise had no "substantial previous involvement" inthe case. 2 3 1 The three-judge panel conducts its own evidentiary hearing,based on "all evidence relevant to the case, even if considered by a juryor judge in a prior proceeding." 23 2 Following a hearing, the three-judgepanel determines whether the defendant has proven by "clear and con-vincing evidence that [he or she] is innocent of the charges" 233 -thesame standard adopted by Cole and the Actual Innocence Justice Act.Such a determination requires a unanimous vote of all three members,and if the petition is granted, the charges against the defendant are dis-missed.23 4 While the statute specifically forecloses any right to appealthe determination of the three-judge panel, it does ensure that claimsbrought to the Commission "shall not" hinder or foreclose the defen-dant's right to any other post-conviction relief.2 3 5

Since 2007, the Commission has received 1102 claims, 2 36 and hasclosed 953 of them. Reasons for denying claims include a lack of newevidence, a lack of complete factual innocence, the inability to proveinnocence, and the unavailability of reliable evidence.23 7 The Commis-sion is currently holding evidentiary hearings on six cases, and has sent

229 Id230 Id. § 15A-1468(c).231 Id. § 15A-1469(a).232 Id. § 15A-1469(d).233 Id. § 15A-1469(h).234 Id235 Id. § 15A-1470.236 Case Statistics, NORTH CAROLINA INNOCENCE INQUIRY COMMISSION, www.innocence

commission-nc.gov/stats.html (last visited Apr. 28, 2012).237 Reasons for Rejection, NORTH CAROLINA INNOCENCE INQUIRY COMMISSION, www.in-

nocencecommission-nc.gov/stats.htmI (last visited Apr. 28, 2012).

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four cases to the three-judge panel.2 38 One case has resulted inexoneration.2 3 9

CONCLUSION

While the Actual Innocence Justice Act and the decision in Colecertainly represent worthy efforts by New York to address the issue ofactual innocence, both ultimately fall short of the reform truly neededto provide effective relief to those claiming actual innocence. The Com-mission, especially when contrasted with the shortcomings of theCCRC, provides the structure and procedures needed to bring reform toNew York. By specifically focusing on actual innocence, providing aworkable definition of "actual innocence," and creating an independentevaluating body to address such cases, the Commission model couldprove effective in New York. By doing away with procedural roadblocksand adopting a goal of assessing "all" relevant evidence, an InnocenceCommission in New York might have been able to provide more imme-diate relief to individuals like Martin Tankleff, or Fernando Bermudez,who became stuck in a cycle of appeals before finally being granted reliefyears later.

There is no question that with regard to the other side of wrongfulconvictions-unfair trial and insufficiency of the evidence-proceduralhurdles are a significant piece of the formality and finality that our crim-inal justice system attaches to a conviction. But as recognized by thecourt in Cole, by the supporters of the Actual Innocence Justice Act, bythe founders of the Commission, and even by the Supreme Court, theseprocedural roadblocks must give way in the face of innocence. Whilethere is no denying that in some of the cases discussed above, exonera-tion was ultimately achieved, such cases should not serve as a workingmodel, but should serve instead as evidence that the current post-con-viction relief system in New York is ill equipped to adequately addressclaims of actual innocence. Such cases serve to demonstrate the currentstate of procedural confusion in New York with regard to claims of ac-tual innocence. Absent a clear recognition of actual innocence in NewYork, and the establishment of an independent body empowered to in-vestigate, hear, and determine claims of actual innocence, New Yorkdefendants will continue to be relegated to fighting their way through a

238 Case Statistics, supra note 236.239 David Zucchino, North Carolina Man Exonerated After 17 Years, L.A. TIMES (Feb. 17,

2010), http://articles.latimes.com/2010/feb/17/nation/la-na-innocencel8-2010febl8.

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system that is not designed to address innocence. New York has nowarrived at a significant crossroads in criminal justice reform. The ques-tion is whether the state will become a model for reform and force forchange, or bastion of injustice for the actually innocent.