Within the last decade I had an informal meeting with a judge at a local restaurant.\u00a0 We talked about mutual friends, made some mentorship plans, and talked about my ongoing research.\u00a0 Just as I was preparing to leave, the judge blurted out, \u201cthere is one more thing I wanted to talk about.\u201d\u00a0 The one more thing turned out to be something that would keep me up at night.\u00a0 There was a person incarcerated in Colorado\u2014Lacie Nelson\u2014who the judge was certain was innocent.\u00a0 The judge said this was a case he hadn\u2019t seen anything like.<\/p>\n
It was chilling to be reminded in such a stark way that innocent persons could be incarcerated.\u00a0 But what was horrifying is what came next.\u00a0 The judge felt powerless to correct the injustice.\u00a0 This was not a story about the judge\u2019s triumph over injustice\u2014it was a plea for help.\u00a0 The judge felt it was necessary to start new, additional litigation and wanted to know if I could help in some way.\u00a0 Could I find a lawyer or law clinic to help?<\/p>\n
Think about this for a moment.\u00a0 The judges in our system may feel helpless to correct wrongful convictions. \u00a0The interlocking procedural mechanisms that leave judges impotent at correcting these injustices is the focus of Professor Daniel Medwed\u2019s new book, Barred: Why the Innocent Can\u2019t Get Out of Prison<\/em>.\u00a0 The doctrinal framework that prioritizes finality at the expense of fairness is exposed through a combination of accessible narratives and lucid legal analysis.\u00a0 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.\u00a0 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.<\/p>\n Take a doctrine that no one is going to write a movie script or true crime story around: the so-called harmless error doctrine.\u00a0 Outside of specialized lawyer ranks, it is a doctrine that very few people talk about.\u00a0 It seems like a sensible, even intuitive doctrine.\u00a0 In oversimplified terms, the rule means that trial errors that do not impact the jury verdict do not require a reversal of the conviction.\u00a0 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.\u00a0 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 \u201cpresume convictions were properly obtained.\u201d Daniel Medwed, Barred: Why the Innocent Can\u2019t Get Out of Prison<\/em> 88 (2022). \u00a0Put differently, harmless error provides judges the doctrinal foothold they need to push aside arguments of injustice or wrongful convictions.\u00a0 And this is not conjecture. \u00a0As 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.\u00a0 Id<\/em>. at 89.\u00a0 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.<\/p>\n 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.\u00a0 Specifically, the book illuminates the problems with the criminal system in three parts.\u00a0 First, the problems associated with appellate review are documented, including the fact that plea bargains may waive one\u2019s right to appeal, or the standard of review will make relief unlikely.\u00a0 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 <\/em>Henry J. Friendly, Is Innocence Irrelevant?\u00a0 Collateral Attack on Criminal<\/em> Judgments, 38 U. Chi. L. Rev. 142 (1970). Some states even limit eligibility for DNA testing to certain crimes (\u201cThey must have been convicted of a capital offense in Alabama\u201d). Barred<\/em> at 157.\u00a0 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.\u00a0 We pass judgment on past practices of the criminal system, because it relieves some of our guilt and communal culpability for the system\u2019s present injustice.\u00a0 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.\u00a0 Medwed shines a light of transparency on the failures of the executive branch to use the clemency power less parsimoniously.\u00a0 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.\u00a0 Medwed is clear that pardons based on DNA is the low-hanging fruit, and laments that across the country \u201cfar too many clemency decisions are characterized by caution, not boldness.\u201d Barred<\/em>\u00a0at 207.<\/p>\n This point about the need for bold action on the part of executive officials resonates with me.\u00a0 As I write this review, the Lacie Nelson continues to languish in prison.\u00a0 The story of Nelson\u2019s 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.\u00a0 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.\u00a0 It is a sickening thought that an innocent person is sitting in prison.\u00a0 Medwed\u2019s timely book reminds us that this should not be viewed as unexpected.<\/p>\n With this book, Medwed further enshrines himself as one of the nation\u2019s leading experts on wrongful convictions.\u00a0 Over the course of three books, Medwed has laid bare the reality and reasons that innocent people are incarcerated.\u00a0 In Wrongful Convictions and the DNA Revolution<\/em>, 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.\u00a0 For those without DNA evidence, \u201cthe issue of wrongful convictions was largely a matter of speculation.\u201d\u00a0 Wrongful Convictions<\/em>\u00a0at 4.\u00a0 But the fact of wrongful convictions begs the question of how such a thing happens.\u00a0 In another book, Medwed goes further and walks through what he calls the \u201cprosecution complex,\u201d or series of biases, cognitive blinders, and poor practices that cause prosecutors to convict the innocent. See <\/em>Daniel S. Medwed, The Prosecution Complex (2012). \u00a0Medwed methodically walks through the types of structural impediments and individual mistakes that lead to wrongful convictions; it is a sort of \u201chow to\u201d guide for understanding the presence of wrongful convictions in our system.<\/p>\n This latest book is a natural and welcome continuation of this trajectory.\u00a0 In Barred<\/em>, Medwed\u00a0\u00a0 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.\u00a0 If we are worried about wrongful convictions, we should be disgusted by the lack of viable mechanisms to correct them. Barred <\/em>succeeds in methodically showing the ways our system traps the innocent.<\/p>\n No one expects the criminal system to be perfect.\u00a0 And it is the rare person who continues to doubt that our system does not produce some wrongful convictions. \u00a0Barred <\/em>is so powerful and so unsettling because it lays bare the \u201croadblocks to litigating innocence claims.\u201d Barred<\/em>\u00a0at 264. It turns out that innocence is all too often inadequate to justify relief in our system.\u00a0 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 \u201cvalues accuracy over finality.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" Within the last decade I had an informal meeting with a judge at a local restaurant.\u00a0 We talked about mutual 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