I had two habeas-related articles published recently.
The first is called “Actual Innocence after Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases.” It was published back in July in Pace Law Review.
The decision in Friedman really is one of my all-time favorite decisions. I wrote about it a lot when it first came out. I looked at it as kind of like a perfect storm of pop culture, politics, and law. Actually, in that particular post, I asked the following question:
Finally, on the law side, there is the nagging question in my mind of whether the judges should have delved into the innocence question. It is safe to say that this was highly, highly unusual. We may see something like this in a concurring opinion, or maybe a dissent. But the majority opinion from a circuit court? Exceedingly rare, if not one-of-a-kind. I discussed this on the day the opinion came out. I am not saying that I wouldn't want a court to do this. But the question remains: did the court overstep proper judicial opinion-making boundaries in discussing their opinion of petitioner's innocence and pushing the DA to reinvestigate the case?
I kind of, sort of, as best I could, tried to answer that question in the article. Actually, the question I answered was less about "proper judicial opinion-making boundaries" and more about whether a federal court in a habeas case should have done what the Second Circuit did. I also cover other stuff and suggest that the Friedman decision can be used as a model for other federal courts to follow when faced with compelling claims of innocence on habeas review. Warning: it's a long article. You can read it here.
The second article was published last week in the Criminal Law Reporter. I often write about the Toxic Twin opinions from the Supreme Court's last term, namely Richter and Pinholster. I finally put my thoughts together and down on paper as to why those two opinions have really altered habeas law. This article is not as long as the other. Nevertheless, it goes into some depth on the issue. You can download it here: Richter/Pinholster Article.