International Court Issues Red Notice for Qadaffi

The International Criminal Court at the Hague has issued a Red Notice for the arrest of Prime Minister Qadaffi. According to the Israeli paper Arutz Sheva, the notice was also issued for his son (and presumptive heir)

Seif al-Islam. Also being sought on charges of war crimes is Libya's former intelligence chief, and Qaddafi's son-in-law, Abdullah Al-Senussi

Troy Davis Executed

Last night the State of Georgia executed Troy Davis. Mr. Davis was convicted of killing a police officer. Subsequently, most of the witnesses either recanted their testimony or made statements which seriously called into question their prior testimony. They painted a picture of a police department out to close the case at all cost. The motivation that drives the police departments to catch a cop killer is also the motivation that causes a case to go awry. The Davis case paused many, but apparently not enough. Despite a number of cases which prove the fallacy of the legal theory, the law still treats recanting testimony is unreliable. You can find eloquent prose speaking about how this is the most unreliable testimony that exists. The problem is that despite the eloquence, a review of a number of the cases involving exonerations have shown that there was recanting testimony.

The law is prepared to believe these witnesses when they convict the Defendant, but once the same witness recants they suddenly lose all credibility. Individuals who recant have a lot to lose. They face perjury charges, pressure from law enforcement, and having their name dragged through the dirt. No one who has ever been in the witness box regards hours of vigorous cross-examination as a painless experience. Many people who prefer to spend that time under the dentist’s drill.

The Davis case could have also been used as a vehicle for the United States Supreme Court to finally answer the question about whether convicting an actually innocent defendant is a self-standing constitution question. The US Supreme Court’s 2009 original habeas corpus proceedings in I
n re Davis almost reached that question. Right now, actual innocence is a wild card in federal court that can substitute in for demonstrating good cause for failing to raise an otherwise valid constitutional issue, but it can never be a self-standing “winning hand.” You need actual innocence plus an error. In theory if an actually innocent defendant is convicted at a textbook perfect trial, there is no error.

I don’t have a clue whether Mr. Davis was innocent or guilty, but I think his case should serve as a vehicle for scholars to reexamine the recanting witness doctrine and for Courts to finally recognize that convicting an actually innocent defendant is a constitutional violation.

Sixth Circuit Rules that Michigan's Parole Guidelines Don't Create a Liberty Interest

A number of years ago, the Michigan Legislature adopted parole guidelines to attempt to reduce the disparity between the individuals who received parole and those who didn’t. The Guidelines were originally part of the legislation which created our sentencing guidelines. They were separated at some point and were passed separately. The statute creates three tiers of offenders: (1) those with a low probability of parole; (2) those with a high probability of parole; and, (3) hose with an average probability of a parole.

Those with individuals with an average probability of parole had no statutory preference for or against a parole. Those individuals who had a high and low probabilities of parole either had a statutory presumption in favor of or against a parole. The legislature copied the language for parole standards from our sentencing guidelines and stated that departures from the guidelines should only be for “substantial and compelling” reasons. Case law interpreting the sentencing guidelines said that this was a high standard and imposed a requirement that “substantial and compelling” had to be objectively verifiable.

On its face, this would seem that Michigan had created a liberty interest in our parole scheme. Ordinarily there is no right to a parole which is protected by the due process clause to the United States Constitution. The United States Supreme Court in
Greenholtz v Nebraska Penal Complex found that a Nebraska scheme which found that a Nebraska law provided that a parole should be granted unless certain objective factors were present created a liberty interest. Michigan’s law facially seemed to match this criteria, but Michigan Courts had constantly interpreted the law to the contrary. On September 20, 2011 in Crump v Lafler the Sixth Circuit appeared to drive a stake through the heart of the argument. The Court stated that historically both federal courts and Michigan courts have rejected the stricter interpretation of MIchigan law and concluded that Michigan’s scheme only created a “hope” of parole.

Judge Cole wrote a nice dissent arguing to the contrary. HIs approach matches what the Legislature intended, but the ruling may be a lone voice in the wind. Presumably the Petitioner will be seeking en band rehearing and/or certiorari. Stay tuned.