Kash Register and Loyola Law School of LA’s Project for the Innocent

Much of my work involves denying federal habeas petitions from state prisoners convicted of murder. Almost always, they make absurd claims that they are innocent. In that same vein, I constantly remind myself that there is a possibility that one of these days I will toss a habeas petition and condemn an innocent person to death or life in prison all because I am a jaded old man. As an object lesson, and with thanks to an Admiral in the Nebraska Navy, I highly recommend reading this recent piece in the LA Times about a fellow named Kash Register and Loyola Law School’s Project for the Innocent.


7 responses

  1. Rich, sigh. Cases like this always leave me feeling empty. If the officers behaved in the way recounted in the article, that’s pretty horrible. The goal is to put the right person in prison, not just someone in prison. The victims’ family is left empty. They were assured that they had the right guy, and now they don’t have anyone. The chances of solving a 34-year-old murder case without forensic evidence are vanishingly small. It’s conceivable, but unlikely, that Register actually did it, but the fact that he probably could have gotten out on parole if he’d admitted his guilt is a pretty strong evidence that he didn’t do it. Certainly there is no way that he would have been convicted with the government’s case left in the state described. Unless there’s stronger evidence against him than one witness who says that it “might or might not” have been Register, and another one who says that it was too far away and too dark to see, no responsible judge would let such a case to a jury and no responsible prosecutor would bring such a case. I’m glad that what seems to be the right thing eventually happened, but sad that it took so long. I hope that the Los Angeles prosecutors will do the right thing and not appeal the ruling and not attempt to retry him. Best, Pat.

  2. TF:

    1. I don’t recall ever allowing a defaulted claim to go forward based upon the “actual innocence” gateway provided by Schlup v. Delo, 513 U.S. 298 (1995).

    2. Overall, I “like” AEDPA. It keeps the federal courts out of the business of the state courts except in those few cases where there are strong policy reasons for federal intervention. A lot of thoughtful people put a lot of thought into AEDPA and it was passed by huge bipartisan majorities. The Supreme Court unanimously found it constitutional as against a claim that the bar on successive petitions violated Article I, Section 9, Clause 2 of the Constitution, the Suspension Clause. By the way, I was a judge before adoption of AEDPA. The state of the law then was a hodgepodge of incoherent judge made law that was murky and seldom provided predictable results. Thus, if you compare the state of the law pre-ADEPA with the law post-ADEPA, everyone is better off with ADEPA.

    All the best.


  3. Yes, I agree that AEDPA was better than pre-AEDPA mess. But, I have been troubled by some of the recent holdings like Pinholster. I just wondered if it has hampered sitting judges like yourself in judging cases of actual innocence whether raised explicitly or couched within 5th or 6th amendment claims?

  4. No death penalty; no possibility of condemning an innocent person. The problem doesn’t have so much to do with innocence, as it has to do with the severity of the penalty and the somewhat stilted system that enabled some judge to impose it. Not that I like bright lines, but a cutoff based on time, rather than the completeness of the application would solve the staleness problem. But without adequate representation and competent support services like investigators and social workers and psychologists, making a case will be next to impossible.

  5. TF,

    I can’t speak for others. But, I don’t feel “hampered” by AEDPA. That’s probably because I don’t think the federal constitutional right to habeas corpus is a free-standing warrant to overturn a state court conviction because a federal judge might question the wisdom of the state court conviction, and that is particularly true where the petitioner did not present the allegedly critical information to the state court. So far as I am concerned, Pinholder was an easy case requiring reversal of the Ninth Circuit. Cullen v. Pinholster, 131 S. Ct. 1388 (2011). Federal evidentiary hearings on federal habeas petitions attacking state convictions are intended to be extremely rare under AEDPA, and I have no problem with that policy choice.

    All the best.


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