McFarlane: Justice Should Not Have A Three-Year Deadline

By Donald McFarlane, NH Journal

Government exercises no greater power over an individual than when it takes away his freedom and puts him in prison.

That makes House Bill 1422 one of the most straightforward liberty questions the Legislature will face on veto day: If credible new evidence emerges that a person may be innocent, should the ordinary path to a new trial close simply because three years have passed?

I believe the answer is no.

New Hampshire prides itself on protecting individual liberty. Yet current law requires a petition for a new trial to be filed within three years of a conviction. HB 1422 would create a narrow exception for serious criminal cases when a petitioner alleges both newly discovered evidence and actual innocence.

This is not a get-out-of-jail-free card.

Before receiving a hearing, the petitioner must make a prima facie showing that the statutory requirements have been met. A judge can dismiss a petition that fails that test and can reject duplicative petitions. Even after a hearing, a petitioner must meet New Hampshire’s existing legal standard for actually granting a new trial, which HB 1422 does not change.

The bill received remarkably broad bipartisan support. I and the other members of the House Judiciary Committee recommended it 17-0. The Senate Judiciary Committee followed 5-0. Both chambers then passed it without a recorded dissenting vote.

Gov. Ayotte, herself a former attorney general and prosecutor, vetoed the bill. She argues that New Hampshire already provides sufficient post-conviction remedies through habeas corpus and the ancient common-law writ of coram nobis.

“We do not need to create a novel approach to allow defendants to seek a new trial,” she wrote.

I respectfully disagree.

Those remedies exist. But the testimony from the attorney general’s office failed to establish that either coram nobis, an obscure and extraordinary common-law writ, or habeas corpus provide a clear and reliable avenue for a wrongfully convicted person who discovers compelling evidence of factual innocence after the three-year deadline.

And HB 1422 does not invent a novel form of post-conviction relief. New Hampshire law already allows courts to grant new trials. The problem is that the ordinary courthouse door to that existing remedy generally closes after three years.

Sometimes the truth takes longer.

Former Rhode Island police detective Scott Hornoff was convicted of murder and imprisoned despite maintaining his innocence. Six years later, the actual killer came forward and confessed.

Other innocent people have waited decades for evidence that finally cleared them.

Science can take even longer to catch up.

Forensic techniques once presented confidently to juries, including, for example, bite-mark analysis and some uses of microscopic hair comparison, have subsequently been discredited. New science or testing technologies can reveal facts that simply could not have been discovered when a case was tried.

A three-year clock cannot anticipate when a witness will finally tell the truth, when previously unavailable evidence will emerge, or when science will demonstrate that supposedly reliable forensic evidence was actually not reliable after all.

The numbers should trouble us as well. New Hampshire has recorded only a handful of exonerations, among the fewest in the country. We also heard testimony that innocence organizations are aware of compelling New Hampshire cases that they would pursue but for the lack of a practical legal avenue to present newly discovered evidence after the three-year deadline.

None of this diminishes the importance of finality in criminal cases.

Victims and their families deserve finality. The public deserves finality. And people who commit serious crimes must be held accountable.

But finality is a means to justice: It must not become more important than justice itself.

HB 1422 recognizes that balance. It does not presume that a prisoner claiming innocence is innocent. It does not automatically reopen a conviction. It does not lower the standard for granting a new trial.

It merely allows a judge to consider genuinely new evidence rather than requiring that evidence to go unheard because the calendar says it arrived too late.

Thousands of people have been exonerated across America. Every wrongful conviction represents two failures: An innocent person was punished, and the system failed to hold the right person accountable and deliver justice to the victim.

A justice system confident in its convictions should also be confident enough to correct its mistakes.

Our attorney general should be the state’s chief advocate for justice, not merely its chief defender of convictions. Usually, those missions align. In the rare case when they do not, justice has to come first.

On veto day, the Legislature should override the veto of HB 1422.

In the Live Free or Die state, an innocent person’s road to freedom should not end at an arbitrary three-year roadblock.

Rep. Donald McFarlane is a Republican representing the towns of Alexandria, Bridgewater, Bristol, Canaan, Dorchester, Enfield, Grafton, Groton, Hebron and Orange in the New Hampshire House of Representatives.

This story was originally published by the NH Journal, an online news publication dedicated to providing fair, unbiased reporting on, and analysis of, political news of interest to New Hampshire. For more stories from the NH Journal, visit NHJournal.com.