When Innocence Is No Defense

The following op-ed by Julie Seamn was published by the New York Times on August 12, 2015.

ATLANTA — SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

Now the fate of a 41-year-old man in Georgia raises the question anew.

In 2001, a young woman came home from church in Thunderbolt, Ga., to find a stranger burgling her apartment. When she walked in on him, he blindfolded her, tied her up and threatened to kill her. He then sexually assaulted her while wearing a pair of blue and white batting gloves.

Around this time, two acquaintances, Sandeep Bharadia and Sterling Flint, were involved in a dispute: Mr. Bharadia had reported his car stolen, accusing Mr. Flint. While investigating Mr. Bharadia’s complaint, the police in Savannah visited the home of Mr. Flint’s girlfriend.

There they found a computer and jewelry belonging to the young woman from Thunderbolt, as well as a knife and crowbar. The distinctive batting gloves were with this stash. The girlfriend told the police that Mr. Flint had left the items at her house, telling her they were his.

When the police questioned Mr. Flint, he said that he had gotten the items from Mr. Bharadia and was holding them for him. At trial, he testified that he had never worn the gloves. The two men were charged as co-defendants in the crimes against the young woman; Mr. Flint struck a deal with prosecutors, receiving a sentence of 24 months, and testified against Mr. Bharadia.

Mr. Bharadia has always maintained his innocence. There was no physical evidence that tied him to the crime. He claimed that he was 250 miles away in Atlanta when the crime was being committed. At trial, the only evidence besides Mr. Flint’s testimony was the victim’s identification of Mr. Bharadia. (Witness identification is persuasive to juries, but misidentification has been a significant factor in a majority of convictions later overturned by DNA evidence.)

The police and prosecutors did not test the stolen items for DNA, and any evidence aside from the gloves has apparently been lost or destroyed by the state. For reasons unknown, Mr. Bharadia’s trial attorney did not request DNA testing.

At the end of the 2003 trial, the jury returned a guilty verdict, and Mr. Bharadia was sentenced to life without parole.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

The court declined to order DNA testing of Mr. Flint, and no new trial went ahead. But several years later, the Georgia Innocence Project took on Mr. Bharadia’s case, and his new attorneys filed a motion that the DNA results be run through the national Codis DNA database. Finally, in 2012, there was a hit: The male DNA belonged to Mr. Flint.

The Georgia Supreme Court ultimately ruled that nothing prevented Mr. Bharadia’s original attorney from requesting DNA testing of the gloves before the trial. (I filed an amicus brief in this case.) Mr. Bharadia’s motion for a retrial was therefore denied — even though the trial court recognized that this evidence “would probably produce a different verdict.”

Of course, the DNA match does not establish Mr. Bharadia’s innocence beyond all doubt. But he continues to serve a life sentence for a crime that the court acknowledges he probably didn’t commit.

What is most troubling about the Georgia Supreme Court’s decision is that the issue of innocence becomes irrelevant if there has been a failure of due diligence. In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed, because of errors made by his lawyer. Absent a constitutional safety net, an innocent person convicted after a procedurally adequate trial is out of luck.

Faulty convictions happen for many reasons: because juries are composed of human beings, who are fallible; because witnesses feel certain but can be mistaken; and because defense lawyers, particularly those representing indigent defendants, are notoriously overworked and underpaid. The issue is what courts should do in the face of strong evidence that the wrong person has been punished.

Mr. Bharadia now has a habeas corpus petition pending that seeks his release from unlawful imprisonment. If denied by Georgia courts, his case would present an excellent vehicle for the United States Supreme Court to decide, once and for all, that incarceration or execution of an innocent person is constitutionally impermissible.

Julie Seaman is an associate professor of law at Emory University.