A Dirty Secret

It is a “dirty secret”, known by few, that the American death penalty system is “specifically engineered to ensure that those who are convicted stay convicted, guilty or not.”[i]
This is how it works.

Death sentences routinely result from poor defense lawyering at trial, which fails to establish the flaws – and often misconduct – in the prosecution’s case.

Those convicted then face the appeals process. At this point, the burden of proof shifts decisively from the state to the individual, who must now persuade a court that any newly found evidence is so “clear and convincing” that no reasonable jury, in possession of this evidence, would convict him.

 But judges still reject clear and convincing evidence if they decide either of these points is true:
1) The trial lawyer could have discovered the evidence through “reasonable diligence”.
2) The original trial was “constitutionally fair”.

In practice, this is a trap for the convicted man. He may well argue that his trial was unfair because his lawyers were thoroughly inadequate; but the reviewing court is unlikely to agree:
“[D] drunks and drug addicts and lawyers who fell asleep at crucial moments have been found good enough.”
However, even if the court did agree with him, he would still be caught by the first part of the trap: almost certainly the court would decide his new evidence could have been discovered if he had had a competent lawyer.

If this Catch-22 were not enough, the court could also decide that the claim has been made before – no matter how incompletely – and deny it.

But even if the petitioner feels that he can somehow clear these hurdles, he may not get the chance to even try. The federal court overseeing his case can – for any arbitrary reason – block him from getting the new evidence considered.

Such is the near-impossible challenge faced by the inmate who wants to demonstrate his innocence. Such is the system that piles on the stress during the long, depressing days on death row.

We trust Jeffrey Wogenstahl can remain strong, as he tries to get new evidence accepted by the judiciary. We hope that in the end he will win the new trial that he deserves.

[i] Information for this post is taken from “No Time For Trump: Killing Off The Death Penalty”, Richard North Patterson, Huffington Post, August 23, 2016




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