When Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA) in 1996, it added a provision that eliminated the ability of defendants to seek post-conviction relief pursuant to one of the oldest means in law—the writ of habeas corpus. The provision is causing innumerable injustices and making it far too difficult to correct clear wrongs in the justice system.

The case of Jeffrey MacDonald illustrates the problem. In 1989, this co-author, Harvey Silverglate, received a phone call from Dr. MacDonald, a federal prisoner who, perhaps in order to get my attention, identified himself as a fellow Princeton alumnus. We did not know each other while on campus; MacDonald graduated a year ahead of me, and we travelled in decidedly different circles. But by the time MacDonald called, I knew who he was. He had been convicted of the 1970 “Green Beret Murders” of his pregnant wife and two young daughters in a highly-publicized trial in 1979. A bestselling book on the case, soon turned into a movie, largely convinced the public that MacDonald was guilty. He insisted on his innocence, and claimed that his prosecution was unconstitutional. And he wanted me and my longtime friend and mentor, Professor Alan Dershowitz of Harvard Law School, to help him prove it.

The case was in the post-conviction stage. MacDonald had exhausted his direct appeals, and he had already filed, in 1984, one unsuccessful post-conviction petition asking the courts to issue a writ of habeas corpus. Even in 1989, I knew that federal habeas law was a thicket of complex rules and regulations and success was a long shot. I took the case regardless. Little did I know that in less than a decade, the light at the end of a wrongfully convicted prisoners’ tunnel—a writ of habeas corpus—would shrink to a pinprick. Congress and the federal courts have gutted one of American prisoners’ oldest rights, and Jeffrey MacDonald and countless others have suffered because of it.

The doctrine of habeas corpus exists as a safety valve for wrongful convictions. In theory, if a prisoner believes he is being detained unlawfully, he can petition the court to issue a writ of habeas corpus, that commands the jailer to bring the prisoner to court (habeas corpus means literally, “that you have the body”) so that a judge can decide if the imprisonment is justified. This doctrine is crucial in preventing governments from unduly infringing on the liberties of its citizens. In a society with robust habeas protections, a sovereign cannot toss his enemies and critics into the proverbial cold, dank cell, and figuratively throw away the key.

Habeas corpus comes to us from our common law past, meaning it existed in England long before the formation of the United States. Our Founding Fathers intended to preserve habeas corpus in their new republic. The “Suspension Clause” in Article I of the Constitution reads, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” To give this constitutional promise teeth, the First United States Congress passed the Judiciary Act in 1789. In addition to prescribing the features of a federal judiciary, Section 14 of the Act, sometimes called the “All Writs Act,” included broad language that vested the judiciary with tremendous power. It declared that federal courts could issue writs of habeas corpus, “and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” Congress’s intention was clear: courts were to serve as a bulwark against government by using their expansive power to uphold “the principles and usages of law.”

Habeas corpus doctrine has been a mainstay of English, and later American, liberty for centuries. Indeed, it is often referred to as the “Great Writ.” That was then. This is now. In recent decades, habeas corpus and other post-conviction remedies have been so severely restricted in their use that, more and more frequently, when the steel door of the prison cell closes, it closes for good (or until the prisoner’s release date).

Severe narrowing of this crucial doctrine began in earnest in 1991 with the Supreme Court decision McCleskey v. Zant, which held that prisoners only have the right to file one habeas petition; successive petitions would henceforth be almost impossible. This opinion was codified in the onerous Anti-terrorism and Effective Death Penalty Act (AEDPA) of 1996, which also added complex procedural requirements and placed a one-year time limit on filing motions under 28 U.S.C. § 2255, the federal statute that currently serves as the avenue for federal prisoners to seek habeas relief. AEDPA also imposed corresponding restrictions on motions pursuant to 28 U.S.C. § 2244, the habeas corpus statute for state prisoners. These semi-recent developments are taking a huge and likely irrevocable toll on liberty, fairness, and Due Process of law. They make it extraordinarily difficult for prisoners of all stripes to attack the all-too-common wrongful conviction.

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By the time I (Silverglate) came into Jeffrey MacDonald’s case in 1989, he had been living a nightmare for almost twenty years. In February 1970, military police entered the young Green Beret surgeon’s home in Fort Bragg, North Carolina to find MacDonald’s wife, Collette, and their two daughters savagely slain. MacDonald was himself badly injured. He later told investigators that the perpetrators were four intruders – dressed like hippies and possibly on psychedelic acid – and that he struggled with several of them, lost consciousness, and woke up to the gruesome murder scene.

MacDonald’s story seemed strange to investigators – almost too reminiscent of the Charles Manson murders that had occurred in the late 1960s – but it was partially corroborated by members of law enforcement. One first responder reported seeing a woman matching MacDonald’s description of the female intruder by the side of the road when he was driving to the crime scene; another detective thought perhaps the woman was Helena Stoeckley, a local drug informant.

Nevertheless, MacDonald became the prime suspect. He was cleared at an Article 32 hearing – a military procedure to determine which, if any, charges should be brought. He left the army to pursue a career as a surgeon in California. But almost a decade later, civilian federal prosecutors indicted him for the murders of his wife and daughters and secured a conviction in 1979. MacDonald was sentenced to consecutive life sentences and is still incarcerated today.

One of our first acts as MacDonald’s new lawyers (our core team consisted of attorneys Andrew Good and Phillip Cormier, law professor Alan Dershowitz and myself) was to review the voluminous case file. In advance of MacDonald’s first unsuccessful habeas petition, filed some five years earlier, the government had turned over thousands of documents requested under the Freedom of Information Act (FOIA).

One of the documents discovered by the FOIA experts was particularly noteworthy. It was a legal research memorandum written by a law student intern answering several legal questions from one of the trial prosecutors: Which categories of evidence had to be turned over, and what could be withheld? The formulation of the questions that the prosecutor asked the student to research gave me the sense that the prosecutor had come across evidence that he did not want to turn over and was looking for a legal basis for defending that decision, particularly if his judgment was later questioned. Among the documents withheld were forensic laboratory notes that could lead to a conclusion that the murders were committed not by MacDonald, but by strangers who had entered the apartment.

The MacDonald post-conviction habeas corpus team was buoyed by these discoveries which, when added to the considerable collection of evidence uncovered since the jury verdict, appeared to present an overwhelming argument for the judge’s vacating the conviction and sentence that he had imposed ten years earlier. By 1990, we thought that we could draft a powerful petition for a writ of habeas corpus that would, once and for all, get MacDonald a new trial. At such a retrial, we were confident, any jury would acquit. The evidence seemed to be multiplying by the day – implicating the hippie band and exculpating MacDonald.

We filed our habeas petition in October 1990, the government filed their opposition, and we prepared our reply brief. We figured that, in the face of the newly discovered evidence, even the hostile North Carolina federal judge would not be able to find a way to deny us an evidentiary hearing at which we could present our cache of evidence and examine government agents, lawyers and experts to inquire as to why this evidence was not presented at the time of MacDonald’s trial.

But in April 1991, something devastatingly transformative occurred in the arena of habeas corpus law.

Just as we were preparing to file our reply brief, I got a phone call from a colleague informing me that the Supreme Court had released its decision in the case of McCleskey v. Zant. The opinion, which remains the controlling law today, held that defendants have the right to file only one habeas petition. Going forward, any additional petitions would face numerous procedural obstacles. For one, the prisoner would have to explain why he did not file the new evidence in his first habeas petition and also demonstrate “actual innocence” in order to simply get an evidentiary hearing. In short, it was no longer sufficient to show that a defendant had an unconstitutionally unfair trial; he would also have to show, before given a forum to subpoena documents and witnesses, that he was innocent, or at least that “a fundamental miscarriage of justice would result from a failure to entertain the claim.”

Several months after the Supreme Court’s decision undermining a prisoner’s access to habeas corpus was released, Judge Franklin Dupree (the same judge who oversaw MacDonald’s original trial) denied our motion for a new trial, citing McCleskey. When we appealed Judge Dupree’s decision, the Fourth Circuit Court of Appeals said that MacDonald should have presented his new evidence in his first habeas petition, back in 1984—never mind that this was impossible. In 1992, the U.S. Supreme Court declined to review the case. We knew we had a good case, but changes in habeas law meant that our petitions were denied on procedural grounds—not on the merits.

But we kept trying, and MacDonald’s appeals bounced around the courts for years. Unhelpfully, in 1996, in a frenzied response to the first World Trade Center terrorist attack in New York City and the Oklahoma City bombing, Congress enacted the Anti-terrorism and Effective Death Penalty Act (AEDPA), which codified in legislation the limitations on habeas corpus set forth by the Supreme Court in McCleskey, and even added several more. Each time the habeas petition was denied, we sought review in the Fourth Circuit, and each time, the Fourth Circuit affirmed the District Court—until, that is, the appellate court suddenly recognized the overwhelming amount of evidence produced by MacDonald (and kept hidden by the prosecutors and other government agents).

Consequently, on April 19, 2011, in a sharp break from the spirit of McCleskey and AEDPA, the Fourth Circuit finally ordered the district court to hold a hearing at which witnesses could be called, sworn, and forced to testify. Technically, the appellate court could have again refused to order that a hearing be convened, but apparently the judges were beginning to feel uncomfortable with the status quo that the McCleskey opinion and the AEDPA statute appeared to mandate. The 4^th Circuit ordered the lower court to hold a hearing where the totality of accumulated evidence could be evaluated.  Finally, a glimmer of hope—the hearing was held in September 2012.

Unfortunately, on July 24, 2014, Judge James C. Fox (who took over the MacDonald case after Judge Dupree’s death in 1995) denied MacDonald’s habeas petition. His most recent denial of a new trial took place in December 2018. It is unlikely that MacDonald, who was born in 1943, will see justice any time soon. He remains in prison; just one casualty of Congress’s and the federal courts’ complete trampling of the once Great Writ that existed for the very purpose of avoiding egregious miscarriages of justice—especially when new information belatedly comes to light.