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STATEMENT OF BARRY C. SCHECK
Co-Director, Innocence Project
Prof. Of Law, Cardozo Law School, Yeshiva University
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
Habeas Corpus Proceedings
and
Issues of Actual Innocence

July 13, 2005

II. The Long, Hard Road to Proving Innocence
There is no better way to explain the disastrous effect this bill would have on innocent persons in our nation’s prisons and death rows than through the case histories of individuals who survived that nightmare – but who would not be free men today had the proposed bill been law when their cases were before the courts. Their cases demonstrate just how hard it already is, under current law, to prove your innocence in court – even when your trial was tainted by serious constitutional violations, and even when you have
DNA test results on your side. The barriers that now exist to proving and getting a conviction overturned based on actual innocence make it clear that we need to bring more – not less – judicial scrutiny to such cases, and that the “escape hatch” the proposed bill purports to provide for innocent habeas petitioners will be useless to them in practice.

...And it is not just those exonerated by DNA evidence who can attest to the long, hard road that federal habeas law already imposes on the innocent. Last month, thanks to over fifteen years of investigation by Centurion Ministries and the pro bono legal services of attorney John Zwerling and pro bono lawyers with the law firm of Wilmer, Cutler, Pickering, Hale & Dorr, Joseph Wayne Eastridge and Joseph Sousa won an order from a federal district judge vacating their 29-year-old murder convictions – but just barely. In a 59 page decision, the Court found that numerous pieces of credible evidence established the men’s actual innocence, such that “no reasonable juror” would likely have convicted them of murder. But even that finding was insufficient to overturn their convictions on its own under current law; it was only enough to pry open the doors to relief based on other constitutional claims of merit, claims that would otherwise have been procedurally barred. Yet it is almost certain that none of those claims, including innocence, would even be given a hearing under the radical curtailing of the Writ now proposed. ...And if the courts had not spent fifteen years untangling Joseph Eastridge’s claim of innocence from the procedural hurdles he found erected at nearly every turn, his co-defendant Michael Diamen, who died before the Court ruled in their favor this year, might have lived to see his name cleared.

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