CLPEX Chat Board

This is the sort of thing that keeps defense counsel awake at night...

http://www.washingtonpost.com/news/the- ... forensics/

Defendant is apparently being denied habeas review of the testimony of a coroner the court itself recognizes as discredited because defense counsel took too long to realize the guy was a problem and bring the habeas action.

"File too soon, and the court may conclude that you haven’t presented enough evidence that the forensic theory upon which you were convicted has been discredited. If you then try to file more petitions as more evidence comes out to bolster your argument, you risk the court concluding that this is an issue you’ve already raised, you lost, and you’re therefore barred from raising it again."

"Thus, defendants are stuck: File too soon and you’ll lose on the merits and risk being barred from raising the claim when more evidence comes out. But if you wait for more evidence, you risk running afoul of the deadlines on newly discovered evidence."

http://caselaw.findlaw.com/la-court-of- ... 54536.html

Several other doctors also testified at the trial and they all seem to be fairly consistent in their opinions.

It sounds to me as if the burden of the prosecution for proof "beyond a reasonable doubt" at the original trial is reversed, and becomes the burden for the defense on appeal.

In other words, "Opps. You were convicted. Now you have to offer proof beyond a reasonable doubt that you are not guilty. Otherwise, go back to your cell and be quiet."

Tazman wrote:It sounds to me as if the burden of the prosecution for proof "beyond a reasonable doubt" at the original trial is reversed, and becomes the burden for the defense on appeal. In other words, "Opps. You were convicted. Now you have to offer proof beyond a reasonable doubt that you are not guilty. Otherwise, go back to your cell and be quiet."

I don't mind losing on the merits. OK, I do mind losing, but I mind it less when I feel like the argument was heard on its merits and rejected, and not when the client loses because of some technicality beyond his control -- the trial attorney didn't say quite the right magic words, or didn't say them at the right time, or often enough, or in this case, the client didn't guess right about when to file the habeas paperwork.

In habeas, there are essentially two arguments:
(1) ineffective assistance of counsel -- my attorney screwed up the case really badly (below the standard of minimally competent defense counsel) AND the error was so bad that the verdict in my case is unreliable and we have to do it over.
or (2) actual innocence -- to quote the Connecticut Supreme Court "the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.

These are hard standards -- habeas reversals don't happen often. Add in very picky procedural rules and even a meritorious case may become impossible.