What did Dechaine’s federal denial really mean?

Federal courts do not rule on guilt or innocence in 'habeas' appeals
By Jordan Bailey | Dec 20, 2016

When the U.S. First Circuit Court of Appeals denied Dennis Dechaine's application to submit a second federal appeal in October, Timothy Feeley, a spokesman for the Attorney General’s Office, interpreted this to mean that the evidence Dechaine has accumulated at this point is not enough to overturn a verdict.

Dechaine, a Bowdoinham farmer, was convicted in 1989 for the murder and sexual assault of 12-year old Sarah Cherry and has served 28 years of a life sentence at Maine State Prison. His first federal appeal was denied in 2000.

About the 2016 denial, Feeley told the Portland Press Herald, “The federal First Circuit Court of Appeals, in a unanimous decision, basically said that none of Dennis Dechaine’s recent allegations would have made a difference in the outcome of a trial, that he still would have been found guilty."

However, our research shows that it is unlikely the court considered any of the new evidence Dechaine presented in his claims, due to limits to habeas corpus laws over the past two decades and recent interpretations of Maine's post-conviction review laws.

Habeas corpus, Latin for “you have the body,” is a challenge to the legality of a prisoner's detention, and "does not entail an inquiry into the prisoner's guilt or innocence," according to the Federal Judiciary Center's website fjc.gov. It was carried down from English common law and provided a check to abuse of government power.

But federal habeas laws were weakened in the 1990s during an explosion in the numbers of petitions that were being submitted as state prison populations skyrocketed. Congress and the Supreme Court sought to reduce costs of processing petitions, respect state's rights to self-govern, and preserve the finality of convictions for victims and communities.

In 1993 the Supreme Court ruled in the landmark case Herrera v. Collins that there is no explicit constitutional protection against imprisonment of the innocent, so habeas petitions based on claims of innocence would no longer be considered. (Violations of constitutional protections of due process would still be reviewed.)

The 1996 Anti-Terrorism and Effective Death Penalty Act limited the writ by making it harder for federal courts to grant hearings, accept second appeals, or overturn state convictions.

“States are appropriately charged with keeping house on their own criminal convictions and the federal courts are supposed to intervene in those convictions only very reluctantly and very rarely.” - CA Deputy Attorney General Bill Bilderback

Before the act, federal courts tended to take the liberty to review state convictions in a comprehensive way, Bill Bilderback, a California deputy attorney general explained at a 2012 judicial conference. Now, he said, “the states are appropriately charged with keeping house on their own criminal convictions and the federal courts are supposed to intervene in those convictions only very reluctantly and very rarely.”

The 1996 act also limited federal review of the facts of a case to analyzing whether the state court's findings were “objectively unreasonable." The Supreme Court in 2011 interpreted this to mean that federal judges may consider only the evidence the state court had before it at the time, even if new evidence would prove the state court's findings wrong.

Bilderback, who argued that case before the Supreme Court, said the court agreed with him that there is an important distinction between “reasonable” and “correct." To analyze whether a decision is reasonable, he told the justices, it makes sense to limit the evidence to what the state court had before it.

But Sean Kennedy, the federal public defender who argued the defense in that case, said at the same conference that the ruling threatens the “fail-safe” for prisoners who were not able to develop their cases in state courts. State courts, he said, generally provide “deficient or non-existent” opportunities to present new evidence.

“At some point have we crossed a line where we’re not allowing anyone a chance to have a meaningful hearing even though there are contested facts?” Kennedy asked.

A review of all First Circuit habeas corpus cases on the public access to court electronic records system from 2006 to November 2016 showed that all were denied.

Legal scholars point out that post-conviction and habeas corpus review were not designed to detect whether a person was wrongly convicted.

“The fundamental reason that judicial review has failed so many of the wrongfully convicted is that it was not designed to help them,” wrote Law Professor Nancy King of Vanderbilt University. “Judicial review corrects process errors, not factual inaccuracy.”

She argued in a New York Times op-ed that habeas review is a waste of time and money. Because state courts have long ago taken over review of federal and constitutional violations, and because only 0.4 percent of the 17,000 petitions filed each year are granted, she suggested habeas corpus laws be revised to only accept petitions from prisoners with persuasive claims of innocence and from those with death sentences.

The think tank Urban Institute estimates the rate of wrongful conviction of the innocent to be between 8 to 15 percent. The most conservative estimate of 0.027 percent, cited by the late Justice Antonin Scalia, translates to 125 people per year, Professor Robert Smith pointed out in the Washington Law Journal. To him, this represents a "disturbing number."

Scalia wrote with characteristic bluntness in his concurring opinion to the Herrera decision, that for those whose conscience is shocked by the ruling that federal habeas courts will not consider claims of innocence, "perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of ‘conscience shocking’ as a legal test.”

But later in the opinion he explains that it is not the role of the judicial branch to catch those rare cases. Rather, he expects that wrongful convictions would be detected and pardoned by the executive branch.

“With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence … would fail to produce an executive pardon.”

“History shows that executive clemency is the traditional 'fail-safe' remedy for claims of innocence based on new evidence.” Supreme Court decision Herrera v. Collins (1993)

The idea is spelled in the main decision on the case as well, written by the late Chief Justice William Rehnquist:

“History shows that executive clemency is the traditional 'fail-safe' remedy for claims of innocence based on new evidence.”

Maine bars new evidence from post-conviction review

In his state post-conviction review proceedings, Dechaine attempted to present new evidence including expert opinions on the time of the victim's death, but Judge Carl Bradford barred any new evidence not related to DNA.

The Maine Supreme Court in July 2015 upheld Bradford’s precedent-setting interpretation of the phrase “when considered with all other evidence old and new,” in Maine’s post-conviction review statute as referring only to evidence admitted at trial and in prior hearings, and new evidence related to DNA. It also upheld a dismissal of Dechaine's "freestanding claim of innocence," in which he attempted to get new evidence heard, because Maine law does not allow that in post-conviction review.

Maggie Henry, a case manager at the First Circuit Court of Appeals in Boston, said Dechaine’s latest petition which appealed that decision was reviewed by a three-judge panel on the material submitted and did not go to argument in the appeals court.

The short denial — it was just two paragraphs while others reviewed ranged from two to 28 pages in length — stated, “Our task is to.. determine whether it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition," and concluded that Dechaine's application did not.

One of those requirements is that claims must be based on facts that could not have been discovered "previously" through due diligence, and that those facts, if proven, would be sufficient that no juror could find the applicant guilty.

The Attorney General's office's interpretation rests on the second clause of that requirement. Darla Mondou, a lawyer who serves on the First Circuit Criminal Justice Act Panel for appeals and habeas petitions, and advised Dechaine on his federal appeal, said it was her opinion that it was the due diligence clause that was not satisfied, because the claims were based on "ancient" facts.

"If something happens in 1994 and you finally bring it up in 2016, that's too late," she said.

Further, she said, most of his claims were not heard by state courts, violating a long-standing rule "exhaustion" rule.

Despite Mondou's advice not to submit fact-based claims of innocence because they would be procedurally defaulted, Dechaine, who filed his petition pro-se (himself), did and decided to cover his bases another way, by appealing to the judges' discretion.

“A prisoner with limited legal skills,” he wrote in his application, “I beg the court to recognize that the merits of the cumulative claims presented here are sufficient to override any limitations imposed by procedure. For the sake of justice, please grant me wide latitude in presenting my claims, particularly the exculpatory evidence that was never heard by a jury. I ask that counsel be appointed to present legal arguments in support of my claim of actual innocence and the exceptions to procedural rules governing exhaustion and due diligence.”

The short denial did not state which of the requirements were not satisfied, but First Circuit Court of Appeals Justice William Kayatta, who reviewed Dechaine's application, wrote in a similar case that the court "refrains from full inquiry" when reviewing second habeas petitions:

"The court of appeals must determine whether the application 'makes a prima facie showing that it satisfies the second habeas standard," he wrote.

"In other words, our task is not to decide for certain whether the petition has merit."

When asked by email for a response to these opinions, Feeley wrote on behalf of the Attorney General's office: "Numerous state and federal courts have upheld Dennis Dechaine’s conviction for the murder of Sarah Cherry. These decisions speak for themselves. We have no further comment."

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Jordan M Bailey
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Jordan Bailey has been working for The Republican Journal since 2013. She studied philosophy at Boston College and has experience in marine science education and journalism. She lives in Belfast.

 

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