Legal Loophole


If after your conviction new evidence is discovered or DNA evidence is presented or you can prove your constitutional rights were violated, you have a good case for exoneration. However, if you were convicted solely on false testimony and that testimony is later recanted, you have close to a zero chance of exoneration. Prosecutors and police know this, and they know a conviction of this type is bullet proof.

Justice demands that, at a minimum, a conviction would require the presentation of secondary evidence in addition to the testimony of police snitches (and paid informants–either by cash or promises). The current law is systemically flawed.

The resulting Catch 22:

The Court’s resistance to “freestanding” claims discourages witnesses to recant false testimony. If witnesses do recant, prosecutors are then discouraged to prosecute for perjury because a prosecution for perjury assumes the witness did in fact give original false testimony, which would exonerate the defendant.


A “freestanding claim to actual innocence” is where the defendant claims innocence because of new evidence or changed testimony, and that he or she did not commit the crime in which accused. It also claims no actionable error in the original trial. The perceived issue in granting exoneration under the claim of actual innocence due to recanted testimony is that it opens the door to admitting a jury trial that uses only police snitches (and paid informants–either by cash or promises) is systemically flawed.

“[Robinson meets the requirements for a ‘freestanding’ claim of actual innocence. He also meets the requirements for a ‘gateway’ claim of actual innocence … ] where a petitioner has demonstrated that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent’ by showing that ‘it is more likely than not that no reasonable juror could have convicted him in light of new evidence of innocence.”  — Missouri Supreme Court appointed Special Master Judge Darrell E. Missey, from his 2018 report recommending exoneration for David Robinson

The U.S. Supreme Court has written on its opposition to freestanding actual innocence twice before …

1993 – Herrera v. Collins – U.S. Supreme Court – Denied 

“Consequently, the issue before us is not whether a State can execute the innocent. [It is … ] whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial.” – Supreme Court Justice Sandra Day O’Conner

2009 – Troy Davis petition to the U.S. Supreme Court – Denied

“There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the right to demand judicial consideration of newly discovered evidence of innocence brought forward after a conviction.” [… the court has] “never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is actually innocent.” – Supreme Court Justice Antonin Scalia