[Ppnews] Innocent Dead Men Walking

[Political Prisoner News]

http://www.counterpunch.org/brauchli11032009.html

December 3, 2009


The Case of Fernando Bermudez


Innocent Dead Men Walking

By CHRISTOPHER BRAUCHLI

Some innocent dead men walking can now take hope. Two cases have been 
decided in the last four months that suggest that in the United 
States, at last, it may actually make a difference whether or not the 
prospective visitor to the death chamber is guilty or innocent. A New 
York case decided in November may give some guidance to other courts 
considering the question, if not to the Clarence Thomas-Antonin 
Scalia duo for whom innocence is less important than finality. The 
two friends most recently expressed themselves in the case of Troy 
Anthony Davis.

Troy was convicted by a jury of murdering an off-duty police officer 
in Savannah in 1989 and sentenced to death. Following his conviction 
some of the witnesses against him recanted their testimony and 
implicated the prosecution's chief witness. After his state remedies 
to obtain reversal of his conviction were exhausted, Troy took the 
unusual step of filing an original writ of habeas corpus in the U.S. 
Supreme Court hoping to get relief on the grounds that he was in fact 
innocent as shown by evidence that was unavailable at the time he was 
convicted. Over the dissent of Messrs. Thomas and Scalia the Justices 
referred the case to a Federal District Court and ordered it to 
"receive testimony and make findings of fact" as to whether the 
proffered evidence establishes Troy's innocence.

The Scalia-Thomas duo objected to the referral. They wanted finality 
irrespective of Troy's guilt or innocence. Ever a stickler for 
procedural propriety, Justice Scalia observed at the outset of his 
objection to the Court's action, that it had been almost 50 years 
since the Court had favorably acted on a petition like Troy's. He did 
not stop there, however. He explained that the Antiterrorism and 
Effective Death Penalty Act of 1996 imposed limits on the ability of 
Federal Courts to release Troy because that Act says "An application 
for a writ of habeas corpus on behalf of a person in custody pursuant 
to the judgment of a State court shall not be granted with respect to 
any claim that was adjudicated on the merits in State court 
proceedings" unless the judgment offended (my words-not the 
statute's) federal law in a manner that Justice Scalia believes 
Troy's conviction clearly did not. He believes that an 
"actual-innocence claim" asserted by a "dead man walking" should be 
treated no differently from any other claim that asserts a conviction 
was wrongfully obtained because of, for example, a minor procedural 
error. To prove he is not some nut off in right field, Justice Scalia 
observed: "This Court has never held that the Constitution forbids 
the execution of a convicted defendant who has had a full and fair 
trial but is later able to convince a habeas court that he is 
'actually' innocent. Quite to the contrary, we have repeatedly left 
that question unresolved, while expressing considerable doubt that 
any claim based on alleged 'actual innocence' is constitutionally 
cognizable." The results of Troy's referral to a Federal District 
court are not yet known. What is known is that people in New York are 
considerably more concerned with claims of "actual innocence" than 
the Scalia-Thomases.

In the case of the People of the State of New York against Fernando 
Bermudez Justice John Cataldo of State Supreme Court in Manhattan 
said that in considering whether to reverse a conviction he would, 
among other things, consider whether Mr. Bermudez had "demonstrated 
his actual innocence by clear and convincing evidence." Mr. Bermudez 
spent 18 years in prison for a murder Justice Cataldo concluded he 
had not committed. In Judge Cataldo's 73-page opinion he identified 
several errors committed by the lower court that by themselves, he 
said, would warrant a new trial. He concluded, however, by saying the 
defendant has "demonstrated his actual innocence" by clear and 
convincing evidence and therefore vacated Mr. Bermudez's conviction.

Commenting on Judge Cataldo's ruling, New York State Senator Eric 
Schneiderman said the ruling "dramatizes the need to ensure that 
actual innocence is established as a legitimate ground for a 
hearing." Senator Schneiderman is one of the sponsors of legislation 
introduced in the New York State Senate known as the "actual 
innocence justice act of 2009." It says a motion to vacate a judgment 
would be appropriate if the defendant is "actually innocent of the 
crime or crimes of which he or she was convicted."

As Mr. Bermudez left Sing Sing in November he was quoted in the New 
York Times as saying: "This is a day for other people to have hope 
that justice is possible in this country." If Justice Scalia were 
asked to comment on Justice Cataldo's ruling, on the other hand, he 
would lament the sacrifice of finality on the altar of innocence.

Christopher Brauchli is a lawyer in Boulder, Colorado. He can be 
e-mailed at <mailto:brauchli.56 at post.harvard.edu>brauchli.56 at post.harvard.edu.




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