“The work to undo even one wrongful conviction and the work to change systems requires all of us — it requires a movement,” said Radha Natarajan, executive director of the New England Innocence Project, at the eighth annual International Wrongful Conviction Day rally in Boston on October 2, where participants wore shirts that read “because freeing the innocent is a marathon.”

The growing number of exonerations of innocent people in our country — over 2,800 since 1989 — shows that our justice system can and does get it wrong sometimes. But getting an innocent person out of prison is difficult for many reasons. Innocent convicts face hurdles in the laws around reviewing convictions and the interpretations of these laws by the courts. The system is designed to correct technical errors or constitutional violations, rather than wrong verdicts. While a path exists to present DNA-based evidence of innocence, only a small percentage of cases have DNA evidence, and in Maine, getting a judge to consider non-DNA evidence of innocence has been nearly impossible.

Active efforts to change this include a bill sponsored by Rep. Jeffrey Evangelos (I-Friendship), which is awaiting a signature by Governor Mills, and a Cumberland County court case involving Maine State Prison inmate Foster Bates.

Under current Maine law, prisoners have one year to petition for a review of their conviction based on new evidence, but when that year begins is subjective. According to the language of the law, it is counted from when the new evidence could have been discovered with the exercise of due diligence. Even if the petition is filed within a year of finding the evidence, the state often claims that the convict’s lawyers could or should have discovered it earlier. Courts have often sided with the state and dismissed the cases.

Evangelos’s bill does away with this time limit and its due diligence clause. It has evolved from an “actual innocence” bill, originally proposed by Rep. Michael Devin (D-Newcastle) in 2017 that would guarantee a hearing for those claiming innocence. Evangelos reintroduced it in 2019, amended by the Innocence Project to five pages, modeled on other states’ actual innocence laws.

The Attorney General’s office opposed this version, arguing that people claiming innocence can already challenge their convictions through DNA appeals or petitions based on newly discovered evidence, as long as they file within the time limits.

Evangelos presented an amended version in 2020, one paragraph long, that simply removed the time limit in the existing law. The Attorney General’s office neither supported nor opposed that version. The bill passed committee but that legislative session was called off due to COVID. Evangelos reintroduced the same one-paragraph bill in 2021 as LD 54. This one passed the House 88-51 and the Senate without a roll call. It may be vetoed by Governor Mills, who opposed earlier versions when she was Attorney General.

Foster Bates’s case shows how difficult it is to get evidence considered under the current law, but it may set a precedent that opens a gateway for actual innocence claims where legislation has failed.

Bates was convicted of rape and murder in 2003 and sentenced to life in prison based on DNA testing that identified his semen in the body of a murder victim in a cold case from 1994. He maintained his innocence and in 2014 a woman came forward with information about another man confessing to murdering a woman that night along with specific details that matched the case. Two years later, another witness testified at a hearing in Bates’s DNA appeal (he was excluded as the source of DNA on a sock in the victim’s mouth) that she saw Bates leave the victim’s apartment the night of the murder. The witness claimed she spoke with the victim afterward and that she was fine. She further testified that the man who allegedly confessed was drinking at a party across the hall.

Bates’s lawyers argue that this testimony proves that Bates and the victim had consensual sex before she was murdered by someone else.

However, no judge has considered how these statements impact the state’s original case against Bates. The first hurdle he faced was the interpretation of Maine’s DNA appeals statute. The judge at the DNA hearing excluded the new witnesses’ evidence because Maine courts have ruled that they will not consider non-DNA evidence during DNA appeals.

The next hurdle was the time limit. By the time that ruling had come down, showing the new witness evidence had been excluded, it was too late to bring up the confession evidence in a new petition for post-conviction review. But Bates’s lawyer thought he could still submit a petition based on the witness’s 2016 testimony and did so 364 days after the hearing at which she testified.

Bates thought he had beat the time limit, but his appeal was tripped up on a third hurdle, the due diligence clause. The state argued that Bates’s trial lawyer should have found this witness in his original trial, and that his lawyer at the DNA hearing should have known what the witness would say before the day of hearing. The court agreed with the latter point and dismissed the case as untimely.

Bates filed a new petition with new lawyers in 2020 claiming “ineffective assistance of counsel” — the most common constitutional claim in post-conviction review petitions — based on the due diligence ruling, and attached his many letters pleading with his lawyer to file the petition early.

The apparent contradiction between these two legal concepts had come up in a committee work session on LD 54. If a court found a petition untimely because the lawyer should have found the evidence earlier, wouldn’t that necessarily imply that the lawyer was ineffective? The committee was told a new petition based on ineffective assistance could be filed within a year of learning of the ineffectiveness.

Arguments in Bates's case reveal that it is not that simple. The state argued and Justice Thomas McKeon agreed that Maine precedent has established that that claim cannot be raised about a lawyer’s performance in post-conviction review proceedings; it applies only to the underlying criminal proceedings. However, McKeon noted that in this case, Bates's lawyer was representing him in a DNA appeal, which is technically a continuation of the underlying criminal proceeding. He asked the parties for briefs on whether the ineffective assistance claim is available in this case.

Bates also claimed another piece of newly discovered evidence: a police report the state attached to a March 2019 filing that detailed a 2014 interview with a woman who had also heard the confession in the first witness’s statement. This interview report had never been provided to Bates's team. Justice McKeon did not immediately exclude that evidence, but has asked for more information about whether Bates’s lawyers had done their due diligence in attempting to obtain it earlier.

And in a move that would open up a new path to a hearing for those claiming innocence, Bates’s lawyers, Tina Nadeau and Rory McNamara, are also asking the court to accept the petition and review new evidence outside of time limits through an “actual innocence gateway” established by the U.S. Supreme Court.

While most states do not have time limits and due diligence clauses for newly discovered evidence, the federal government does for habeas corpus petitions. But in the 2013 case McQuiggin v. Perkins, the Court effectively ruled that a prisoner with proof of innocence may file a petition outside of the statute of limitations and a court may consider the merits of the claims.

Assistant Attorney General Donald Macomber argued for the state in Bates’s case that the new evidence presented isn’t sufficient to open the actual innocence gateway because it “pales in comparison to the overwhelming evidence of Petitioner’s guilt introduced at trial.” He also pointed out that the Maine Supreme Court has never addressed the actual innocence gateway in post-conviction review and has not established any standards for how and if it should be applied. It has ruled that Maine statute does not provide a way for courts to review convictions based on “freestanding claims of actual innocence” but has not ruled on whether the actual innocence gateway, or an exception to time limits and other procedural rules, established in federal court applies here.

“Foster Bates is actually innocent,” his lawyers wrote in an August 19 filing. “He deserves the opportunity — finally — to present evidence to this court to establish his innocence, unencumbered by the draconian ‘one-year filing deadline’ that has been used as a weapon in this case to cover up the truth and keep an innocent man locked in Maine State Prison for life.”

McKeon has yet to make a ruling on whether to dismiss the case or allow Bates to present his evidence.

Meanwhile, Bates and others with evidence that they have yet to be able to present to a judge will be watching the progress of LD 54. Though the bill includes a line that allows a judge to dismiss cases that appear frivolous on first review, opponents argue it would create a flood of new work for the courts and legislators have attached a large fiscal note to the bill. Evangelos opposes such arguments.

“We always have the resources to try them, convict them, and to imprison them,” he said in House debate, “but if the court has to spend some resources to exonerate an innocent person, so be it, that’s the way our justice system should work.”

Editor's note: This story was updated to correct a misstatement that Bates's claim of ineffective assistance was dismissed.