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File: Chatterton Macro Created on: 4/13/2007 10:50 AM Last Printed: 4/16/2007 9:04 AM HOW INNOCENT ARE YOU?: THE INTERSECTION OF PRIVILEGED COMMUNICATIONS AND THE ACTUAL INNOCENCE EXCEPTION IN FEDERAL HABEAS CORPUS∗ I. INTRODUCTION....................................................................................... 920 II. THE ROLE OF ACTUAL INNOCENCE IN HABEAS CORPUS...................... 922 A. History of the Great Writ................................................................ 923 B. Actual Innocence as a “Gateway” to the Consideration of a Barred Constitutional Claim................................................. 927 C. Actual Innocence as a Stand-Alone Claim ..................................... 930 D. Summary of Actual Innocence Jurisprudence................................ 931 III. IMPLIED WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE................... 932 IV. ATTEMPTS BY FEDERAL COURTS TO ADDRESS WAIVER IN ACTUAL INNOCENCE CLAIMS ......................................................... 936 V. SHOULD THE WAIVER EXIST?............................................................... 939 VI. CONCLUSION........................................................................................ 943 ∗ The author thanks Prof. Daniel M. Filler of Drexel University College of Law for his encour- agement and direction in the crafting of this Comment. 919 File: Chatterton Macro Created on: 4/13/2007 10:50 AM Last Printed: 4/16/2007 9:04 AM 920 Alabama Law Review [Vol. 58:4:919 I. INTRODUCTION “Richard Kimble has been tried and convicted for the murder of his wife. But laws are made by men, carried out by men. And men are imperfect. Richard Kimble is innocent. Proved guilty, what Richard Kimble could not prove was that moments before discovering his wife’s body, he encountered a man running from the vicinity of his home. A man with one arm. A man he had never seen before. A man who has not yet been found. Richard Kimble ponders his fate as he looks at the world for the last time. And sees only darkness.” The Fugitive (ABC 1963) “I know Krusty’s innocent, and I think I can prove it. But I need your help.” Bart Simpson, The Simpsons: Krusty Gets Busted (Fox television broadcast April 29, 1990) “Hey! The missing evidence in the Kelner case! My God, he really was innocent!” The Naked Gun: From the Files of Police Squad! (Paramount Pictures 1988) It is a tragic reality of our criminal justice system that innocent people are sometimes convicted of crimes. Hopefully, a prisoner who is actually innocent of his crime will be exonerated in the multitiered course of direct and collateral appeals in our state and federal courts. But, in rare cases, the innocent man remains incarcerated. His options dwindling, he marks the days to the end of his sentence, or even his life. In fiction, divine or fortui- tous intervention always saves the day. Dr. Kimball had his errant passenger train, and Krusty the Clown had his precocious spiky-haired advocate. But in the real world, innocent individuals are left with a less glamorous path to liberation—a final chance to demonstrate their innocence before a federal judge. Of course, many convicts profess their innocence at the end of their appeals but not all of them are truly innocent. How are the courts to separate the wheat from the chaff? File: Chatterton Macro Created on: 4/13/2007 10:50 AM Last Printed: 4/16/2007 9:04 AM 2007] How Innocent Are You? 921 The procedural rigors of these “actual innocence” claims may be illus- trated by the case of Gregory Lott.1 In 1987, Lott was convicted and sen- tenced to death for the brutal beating and murder of an elderly man.2 Lott’s conviction was affirmed by his state court of appeals and by his state su- preme court on direct appeal, and his collateral claims for relief in state post-conviction proceedings were unsuccessful.3 Lott filed a federal habeas corpus claim in 1997, asserting that his due process rights were violated by the prosecution’s failure to produce exculpatory evidence at his trial.4 The circuit court of appeals refused to hear these procedurally defaulted claims.5 This left Lott essentially one option—if he could make a showing to the court that he is “actually innocent” of the murder, then the court would have to consider his due process claim and might grant him a new trial.6 He at- tempted just that in a second federal habeas corpus petition filed in 2004— arguing that new evidence proved his innocence.7 Up to this point, Lott’s post-conviction journey was fairly typical of a prisoner in his situation. But Lott’s case soon departed from the “typical” path of an actual innocence claim when the state filed a discovery request aimed at his trial lawyer.8 Specifically, the state wanted to depose his law- yer on the subject of Lott’s innocence.9 The district court granted the motion on the grounds that the court has a duty to examine “all of the evidence” relevant to an actual innocence claim.10 Lott opposed this discovery as vio- lative of his attorney-client privilege and sought a writ of mandamus from the circuit court of appeals to prevent the discovery.11 If a federal court has the responsibility to examine all evidence relevant to a claim of actual innocence, regardless of admissibility at trial, should Lott be allowed both to press his innocence claim and to assert his attorney- client privilege here? Society has a strong interest in protecting the attorney- client privilege, but the government also has a strong interest in limiting the use of habeas corpus review. Which driving policy concern is more impor- tant, the government’s interest in limiting eleventh-hour review to the “truly deserving” prisoners that are actually innocent of their crimes or society’s interest in encouraging candid communication between attorneys and their clients? 1. The recitation of facts here is a simplified account of the procedural history of the case of Greg- ory Lott. See infra discussion Part IV; see also Petition for Writ of Certiorari, Houk v. Lott, 126 S. Ct. 1772 (2006) (No. 05-962), 2006 WL 247818. 2. Id. at 7, *7-*8. 3. Id. at 8-9, *8-*9. 4. Id. at 9, *9. 5. Id. at 9-10, *9-*10. 6. Id. at 10, *10. In evaluating such a claim of actual innocence, a federal court is authorized to “consider the probative force of relevant evidence that was either excluded or unavailable at trial.” Schlup v. Delo, 513 U.S. 298, 327-28 (1995); see infra Parts II.B and IV. 7. Petition for Writ of Certiorari, supra note 1, at 11, *11. 8. Id. at 12-13, *12-*13. 9. Id. 10. Id. at 13, *13. 11. Id. at 14, *13-*14. File: Chatterton Macro Created on: 4/13/2007 10:50 AM Last Printed: 4/16/2007 9:04 AM 922 Alabama Law Review [Vol. 58:4:919 This Comment attempts to balance the policy concerns between two seemingly unrelated movements in the law—the modern effort to limit the abuse of federal habeas corpus review and the established need to protect confidential communications through the attorney-client privilege. Dispa- rate though they may be, these movements have the potential to cross paths; indeed, they recently have intersected in the petitions of prisoners asserting their “actual innocence” in seeking relief from the federal courts under § 2254 and § 2255 of Title 28 of the United States Code. Part II of this Comment begins by examining the history and expansion of federal habeas corpus relief. Next, it observes the efforts of Congress and the Supreme Court to curtail access to federal habeas courts and the policy considerations driving that effort. Finally, this Part discusses some of the exceptions to the rules and principles limiting access to habeas corpus— specifically those involving claims of actual innocence. Part III focuses on the attorney-client privilege. First, this Part examines the policy justifications that provide the impetus for the privilege. Next, it discusses the limits of the privilege, including waivers and exceptions. This Part then specifically explores the contours of implied waiver and, finally, details the present role of the attorney-client privilege within habeas corpus. Part IV examines and discusses In re Lott,12 the only case, to date, that has grappled with the implied waiver of attorney-client privilege where a habeas petitioner is asserting an actual innocence claim. Part V proposes that federal courts should, as a matter of fairness, re- quire that assertions of actual innocence by a habeas petitioner equate to an implicit waiver of the attorney-client privilege with his trial counsel. This Part argues that an implicit waiver will advance the goals of habeas corpus limitations without doing harm to the goals supporting the attorney-client privilege and will not lead to the erosion of other areas protected by the privilege. II. THE ROLE OF ACTUAL INNOCENCE IN HABEAS CORPUS Habeas corpus has evolved significantly over its long history. Although this Comment is concerned specifically with the role of actual innocence in several discrete species of habeas claims, it is necessary to briefly examine the history of the “great writ” to appreciate the role of actual innocence in modern habeas corpus jurisprudence. 13 12. 424 F.3d 446 (6th Cir. 2005). 13. For a detailed discussion of the history of federal habeas corpus, see 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 2.4(d), at 42-82 (5th ed. 2005). File: Chatterton Macro Created on: 4/13/2007 10:50 AM Last Printed: 4/16/2007 9:04 AM 2007] How Innocent Are You? 923 A. History of the Great Writ Habeas corpus was originally available only to remedy jurisdictional defects in the legal process.14 Until the early twentieth century, habeas courts were permitted only to consider whether the particular court that sen- tenced a petitioner had exercised proper jurisdiction over him.15 Gradually, the scope of habeas corpus review was expanded to allow claims of consti- tutional violations distinct from jurisdictional matters.16 Initially, the Su- preme Court defined this constitutional review in a way that allowed it to preserve the “jurisdictional approach” to habeas corpus jurisprudence.17 However, in Waley v.

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