A Shot in the Arm

A federal appeals court says Darryl Burton might very well be innocent of the 1984 murder of Donald Ball. But there's nothing they can do about it.

The 1996 statute mandates a "presumption of correctness" regarding state court rulings on constitutional matters. As a result, federal courts may overturn a state court's constitutional ruling only if it involved "a decision that was contrary to, or involved an unreasonable application of" constitutional law.

"Previously, it wasn't whether this guy was 'reasonable,' it was a question of whether this is the way the Constitution is supposed to work," says Michael Gross, a Clayton-based attorney who handles federal habeas corpus petitions. "As long as [the state courts] are somewhere on the spectrum of where a reasonable person might come out, the ruling will be upheld -- even if a federal judge says, 'Good God, I never would have ruled that way.'"

Many attorneys on the other side of the bench, meanwhile, view AEDPA as a necessary obstacle to prevent frivolous claims from clogging the judicial system. Finality of judgment is in the interest of victims' families, they argue. And a retrial -- costly and often held years after the original crime -- puts the state at a severe disadvantage.

"I do not think the belief needs to be there that only the federal courts can do justice," says Deborah Daniels, chief counsel of the criminal division for Missouri Attorney General Jay Nixon. "Perhaps the federal system is saying: 'Okay, state courts, you have more responsibility from a constitutional standpoint.'"

The 1996 statute affected the federal habeas corpus appeals process in other ways as well. Prisoners, for instance, no longer may delay their execution dates by applying for successive hearings before federal courts. Additionally, there's a strict statute of limitations on prisoners' claims, speeding up the process.

"The motivation was to get more people executed faster," asserts Daniel Filler, a professor of law at the University of Alabama. "Habeas is filled with land mines. It takes the very, very best lawyers to do good jobs in habeas. It takes lawyers who are incredibly detail-orientated, incredibly sophisticated, who are conscious of one hundred different mechanisms moving at slightly different rates. It's like a huge complicated machine, and you have to make sure everything is in synch."

But the new law has also had a profound effect on cases that don't involve capital punishment, says Kevin Curran, an assistant federal public defender in St. Louis. Curran estimates that Missouri courts handle roughly 65,000 cases annually. Of those, he says, perhaps 40 involve the death penalty. "It's a statistically irrelevant portion of what were dealing with in the criminal justice system," Curran says. "But it's changed markedly these habeas corpus rights that the country has historically had -- solely to hasten executions. It's the tail wagging the dog."

Add to that the introduction of DNA testing, and the bar is further raised for inmates like Darryl Burton, who are not facing the death penalty and had no biological material allegedly linking them to a crime.

"The problem with DNA is that while it's a wonderful thing in the cases where it exists, it's become a sort of gold standard," says Cheryl Pilate. "If you don't have DNA, it's really hard to show innocence, because people have come to expect some kind of iron-clad evidence that no one can dispute."

To compound matters, Missouri law makes it extremely difficult to introduce new evidence of innocence after a case has been tried. Only evidence that "completely exonerates" a prisoner may be admitted, and federal appeals courts admit only evidence already considered by state courts.

As convincing as Darryl Burton's affidavits may be, many of them appeared late in the game, and state courts have repeatedly affirmed the trial court's original ruling.

"By the time we got to federal court, there was very little by way of preserved claims for us to work with," Pilate explains.

That left Burton with the one claim that can trump all procedural stumbling blocks: actual innocence.

Simple as it sounds, in the tortured language of constitutional law the term "actual innocence" is fraught with meaning. It is the Hail Mary of federal jurisprudence: If a claim is successful, the court must either grant the prisoner immediate relief or allow into the proceeding evidence that earlier had been barred by the state courts.

For Burton's claim, Pilate prepared a 62-page brief detailing his many supporting affidavits. The legal team was banking on a passage from a 1993 U.S. Supreme Court ruling in the case of Herrerav. Collins, in which Chief Justice William Rehnquist wrote: "In a capital case, a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief."

Nonetheless, in considering Burton's petition the Eighth Circuit panel relied on its own narrower interpretation of the Herreradecision, rendered in a 1996 ruling. In that decision the court deemed that claims of actual innocence based on new evidence did not merit habeas relief unless a defendant's constitutional rights had been violated. The appellate court now ruled that Burton's new affidavits didn't alter the fact that no constitutional violation had occurred during his trial.

But in crafting the panel's unanimous opinion in Burton v. Dormire, federal judge Kermit Bye did not conceal his distress at turning down the plea.

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