Within the last decade I had an informal meeting with a judge at a local restaurant.  We talked about mutual friends, made some mentorship plans, and talked about my ongoing research.  Just as I was preparing to leave, the judge blurted out, “there is one more thing I wanted to talk about.”  The one more thing turned out to be something that would keep me up at night.  There was a person incarcerated in Colorado—Lacie Nelson—who the judge was certain was innocent.  The judge said this was a case he hadn’t seen anything like.

It was chilling to be reminded in such a stark way that innocent persons could be incarcerated.  But what was horrifying is what came next.  The judge felt powerless to correct the injustice.  This was not a story about the judge’s triumph over injustice—it was a plea for help.  The judge felt it was necessary to start new, additional litigation and wanted to know if I could help in some way.  Could I find a lawyer or law clinic to help?

Think about this for a moment.  The judges in our system may feel helpless to correct wrongful convictions.  The interlocking procedural mechanisms that leave judges impotent at correcting these injustices is the focus of Professor Daniel Medwed’s new book, Barred: Why the Innocent Can’t Get Out of Prison.  The doctrinal framework that prioritizes finality at the expense of fairness is exposed through a combination of accessible narratives and lucid legal analysis.  The details of the system leave readers painfully unable to escape the conclusion that each seemingly banal procedural limit contributes to a mosaic of injustice.  It is the sum of many procedural rules, each of which standing alone (like a time limit or a standard of review) might look trivial, that gives rise to a system in which it is often impossible for the innocent to escape their incarceration.

Take a doctrine that no one is going to write a movie script or true crime story around: the so-called harmless error doctrine.  Outside of specialized lawyer ranks, it is a doctrine that very few people talk about.  It seems like a sensible, even intuitive doctrine.  In oversimplified terms, the rule means that trial errors that do not impact the jury verdict do not require a reversal of the conviction.  It makes sense in the abstract. There is no reason to overturn a conviction when there is overwhelming evidence of guilt such that the error in question is essentially meaningless.  But if you are an innocent person who is attempting to correct a wrongful conviction, as Medwed points out, the doctrine of harmless error serves to facilitate confirmation bias among appellate judges such that they excuse errors and unfairness in the trial court and “presume convictions were properly obtained.” Daniel Medwed, Barred: Why the Innocent Can’t Get Out of Prison 88 (2022).  Put differently, harmless error provides judges the doctrinal foothold they need to push aside arguments of injustice or wrongful convictions.  And this is not conjecture.  As Medwed shows, there are a growing number of cases in which DNA exonerations have been obtained and the appellate court refused reversal based on harmless error.  Id. at 89.  Appellate courts have held that harmless error requires affirming a conviction despite an error or unfairness at trial because of the overwhelming evidence of guilt in cases in which DNA evidence subsequently exonerated the individual.

The elegance of the book is the straightforward way it deals with a variety of legal doctrines and shows the surprisingly obvious ways these legal rules make vindicating claims of innocence among the incarcerated unforgivably difficult.  Specifically, the book illuminates the problems with the criminal system in three parts.  First, the problems associated with appellate review are documented, including the fact that plea bargains may waive one’s right to appeal, or the standard of review will make relief unlikely.  Next, the book summarizes an opaque area of law, habeas corpus and post-conviction review, which leaves the reader wondering how we could possibly tolerate such a byzantine system that effectively treats innocence as irrelevant. See generally Henry J. Friendly, Is Innocence Irrelevant?  Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970). Some states even limit eligibility for DNA testing to certain crimes (“They must have been convicted of a capital offense in Alabama”). Barred at 157.  Finally, and perhaps the most novel contribution of the book, is the clear-eyed look at the failure of governors (and the President) to use their clemency powers to correct injustice.  We pass judgment on past practices of the criminal system, because it relieves some of our guilt and communal culpability for the system’s present injustice.  And Medwed makes a compelling case that the lackadaisical approach of many governors to clemency is one of the current criminal system failings that deserves more scrutiny, and that will surely be judged harshly in future decades.  Medwed shines a light of transparency on the failures of the executive branch to use the clemency power less parsimoniously.  The call for greater attention to innocence at the clemency stage is a timely addition to the literature, and one that may provoke future research on this point.  Medwed is clear that pardons based on DNA is the low-hanging fruit, and laments that across the country “far too many clemency decisions are characterized by caution, not boldness.” Barred at 207.

This point about the need for bold action on the part of executive officials resonates with me.  As I write this review, the Lacie Nelson continues to languish in prison.  The story of Nelson’s wrongful conviction is too complicated to detail in this short review, but suffice to say it includes a second trial after a first jury could not unanimously agree to convict, a plea offer that would have resulted in no incarceration that was declined on principle, the acquittal or exoneration of co-defendants, and serious mistakes by lawyers.  More than a half-decade after a judge told me that this person was innocent, appeals have proved futile, habeas petitions have been dismissed on procedural grounds, government lawyers have opposed efforts to waive some of the procedural barriers to obtaining relief, and clemency has not been granted.  It is a sickening thought that an innocent person is sitting in prison.  Medwed’s timely book reminds us that this should not be viewed as unexpected.

With this book, Medwed further enshrines himself as one of the nation’s leading experts on wrongful convictions.  Over the course of three books, Medwed has laid bare the reality and reasons that innocent people are incarcerated.  In Wrongful Convictions and the DNA Revolution, Medwed edited a pathmarking book exploring the twenty-fifth anniversary of the first DNA exoneration. Medwed set his sights on exposing the under-appreciated problem of innocence in our system.  For those without DNA evidence, “the issue of wrongful convictions was largely a matter of speculation.”  Wrongful Convictions at 4.  But the fact of wrongful convictions begs the question of how such a thing happens.  In another book, Medwed goes further and walks through what he calls the “prosecution complex,” or series of biases, cognitive blinders, and poor practices that cause prosecutors to convict the innocent. See Daniel S. Medwed, The Prosecution Complex (2012).  Medwed methodically walks through the types of structural impediments and individual mistakes that lead to wrongful convictions; it is a sort of “how to” guide for understanding the presence of wrongful convictions in our system.

This latest book is a natural and welcome continuation of this trajectory.  In Barred, Medwed   explores the reality of wrongful convictions and explains how it is made worse by the fact that our system is not well-equipped to correct these injustices.  If we are worried about wrongful convictions, we should be disgusted by the lack of viable mechanisms to correct them. Barred succeeds in methodically showing the ways our system traps the innocent.

No one expects the criminal system to be perfect.  And it is the rare person who continues to doubt that our system does not produce some wrongful convictions.  Barred is so powerful and so unsettling because it lays bare the “roadblocks to litigating innocence claims.” Barred at 264. It turns out that innocence is all too often inadequate to justify relief in our system.  An optimistic reader might take solace in the reforms proposed in the final section of the book. Or they might hope the book strikes a chord with policy-makers and judges, igniting enthusiasm for a system that “values accuracy over finality.”