In June 2012, a 73-year-old Irish immigrant named Jack McCullough was tried for the murder of Maria Ridulph, a seven-year-old girl whose disappearance and death shocked the small town of Sycamore, Illinois. According to the police investigation, Maria and her friend Kathy Sigman were playing in the snow on a December evening when an unknown adult male approached them and, after talking with them for a few moments, abducted Maria. Maria’s body was found in the woods several months later. The State believed that Mr. McCullough, who lived near Maria’s home at the time of her disappearance, was the killer.
Mr. McCullough was indicted for Maria’s murder on August 9, 2011. An air force veteran and a former police officer, he vigorously maintained that he did not commit the crime. Yet proving his innocence would be difficult for a unique reason: Maria had disappeared on December 3, 1957, nearly six decades earlier. Newspaper articles show that Maria’s murder drew much interest from then-President Dwight D. Eisenhower. After being charged with murder, Mr. McCullough, who at that point lived in a senior citizens facility, scrambled to remember what he was doing on a particular night when he was 18 years old. State prosecutors benefited from a major procedural advantage: there is no statute of limitations for murder in Illinois.
The U.S. Supreme Court has long recognized that statutes of limitations “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time.” Yet state legislatures are largely free to set statute of limitations as they see fit, or set no limitations period at all. In New York, for instance, prosecutors can indict someone for first-degree arson or murder regardless of when the offense occurred. Mississippi has no statute of limitations even for less aggravated crimes, like larceny. Over the last several decades, state legislatures have increasingly expanded or eliminated statutes of limitations for a host of other offenses through various tough-on-crime initiatives. And prosecutors can take advantage of procedural loopholes to artificially expand the statute of limitations for a crime, such as by filing indictments against “John Doe” defendants before the limitations period lapses, giving them nearly unlimited time to pick a culprit.
In the meantime, however, would-be defendants are completely unaware that they might one day have to defend themselves in court—and critical exonerating evidence may therefore be lost. As one judge put it: “[A]n innocent man has no reason to fix in his memory the happenings on the day of the alleged crime. . . . With each day, the accused becomes less able to make out his defense.”
With no legal limitation on when they could seek an indictment for murder, prosecutors re-opened Maria Ridulph’s case in 2008 and showed Maria’s childhood friend Kathy—who was, by this time, 61 years old—a series of photographs of potential suspects. Kathy selected a photograph of Mr. McCullough, despite having seen Maria’s kidnapper for only a few minutes when she was an eight-year-old, and despite having identified a different suspect from a photo lineup back in 1957. On this basis, prosecutors charged Mr. McCullough for a nearly six-decade-old murder.
With few avenues for his defense, Mr. McCullough’s lawyers moved the trial court to admit into evidence an FBI report from 1957 that indicated that, on the night of Maria’s disappearance, Mr. McCullough had made a collect phone call from Rockford, Illinois, 40 miles away. Although the statements in the report were hearsay, which is typically inadmissible under the rules of evidence, Mr. McCullough argued that his constitutional right to present a defense at trial mandated that the report be admitted, since his alibi witnesses were dead. The court denied the motion, and Mr. McCullough was convicted of Maria’s murder and sentenced to spend the rest of his life in prison.
While incarcerated, Mr. McCullough repeatedly told reporters, “I’ve been accused and convicted of a murder I did not commit.” Yet if he wished to exonerate himself, Mr. McCullough needed to act quickly. Whereas prosecutors may seek an indictment at nearly any time, incarcerated people challenging their convictions are subject to strict court deadlines under Illinois law. If Mr. McCullough missed his deadline, his petition could be dismissed forever.
Defendants, Unlike Prosecutors, Face Strict Deadlines
Cases like Jack McCullough’s highlight the dramatic asymmetry in the procedural rules that dictate how prosecutors and defendants interact with the criminal legal system. Whereas prosecutors can wait years or decades to seek a conviction—with no repercussions when they are wrong—an innocent incarcerated person challenging a conviction or the conditions of confinement must immediately file an appeal or be forever barred by strict procedural timelines.
Challenging a criminal conviction in court is a maze-like endeavor rife with procedural pitfalls. First, a defendant is entitled to file an initial “direct appeal” of a conviction in a state court of appeals, but is usually barred at this stage from presenting any new evidence. Thus, if a defendant’s lawyer failed to introduce key evidence at trial that would have proven the client’s innocence, the defendant is typically prohibited from presenting that evidence to the court on appeal.
If the direct appeal fails, a defendant may then file a separate petition for “post-conviction relief” in court. At this stage, however, the Constitution no longer affords people the right to counsel—so the defendant, who is incarcerated, must typically draft and file this petition without legal assistance. Legally, the defendant may now ask the court in a petition to consider new exonerating evidence that a lawyer failed to introduce at trial, but finding such evidence often requires investigating crime scenes and interviewing witnesses—which, as a practical matter, is essentially impossible to do from prison. And even if a defendant files a meritorious petition that raises serious legal claims, the wrongly convicted can easily face dismissal of their petition if the court concludes that they have failed to comply with various technical formalities—or, most importantly, if a filing deadline is missed.
State and federal legislatures have increasingly imposed strict and arbitrary time limits on criminal defendants who wish to file post-conviction challenges in court. In Florida and Louisiana, for instance, a defendant has just two years after the end of direct appeal to file a post-conviction petition. In Pennsylvania and Virginia, the deadline is one year. In North Carolina, a defendant sentenced to death has just 120 days. Short and strict windows like these are the norm nationwide, and missing a deadline by even a single day can foreclose courts from considering the merits of a case at all.
Gregory Scott Johnson, for instance, was convicted of murder and sentenced to death in Indiana on June 19, 1986. Although Mr. Johnson admitted that he played a role in the crime, he maintained after his conviction that the State failed to turn over exculpatory evidence to his lawyers that would have counseled in favor of a lesser conviction or punishment—a prosecutorial practice that the Constitution forbids. After the Indiana state courts denied Mr. Johnson’s petition to have his conviction or death sentence vacated, he sought review of his case in federal court through a petition for a writ of habeas corpus.
Habeas corpus is a fundamental legal procedure that predates even the Magna Carta, and has long guaranteed a criminal defendant the right to have a court review their case and ensure that they have not been imprisoned in violation of the nation’s laws. But by the time Mr. Johnson sought a writ of habeas corpus, the procedure for filing such a petition in federal court was governed by a new 1996 law called the Antiterrorism and Effective Death Penalty Act (“AEDPA”). For the first time in history, criminal defendants now faced a strict one-year window in which to file a federal petition for a writ of habeas corpus after their conviction and sentence had become final. In 1999, Gregory Scott Johnson’s lawyer, believing that she was complying with this requirement, put Mr. Johnson’s petition in the mail three days before his AEDPA deadline. The court received the petition, however, one day late.
In stark contrast to Jack McCullough’s case—in which prosecutors faced no judicial pushback for seeking a conviction nearly six decades after the crime—the court denied Mr. Johnson’s habeas petition because he missed his deadline by a single day. “Johnson had until June 28, 1999, to seek federal collateral review,” the court wrote, yet he “filed it on June 29.” The court thus dismissed the petition without even considering the merits of Mr. Johnson’s claims, writing simply that “Johnson had to meet the statutory criteria. He did not do so, and we are not authorized to excuse his non-compliance.” Mr. Johnson was executed on May 25, 2005.
Such cases are not outliers. Courts have even dismissed petitions from people incarcerated on death row even when they are minutes late in filing. On September 25, 2007, lawyers for Michael Richard, who was incarcerated on death row in Texas, told the Texas Court of Criminal Appeals that their computer was malfunctioning and asked that the clerk’s office remain open for 20 additional minutes so that they could file Mr. Richard’s request for a stay of execution. Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, responded, “We close at 5.” Mr. Richard was executed later that day. Judge Keller remains on the bench.
No Repercussions for Wrongly Imprisoning Jack McCullough
At 76 years old, Jack McCullough was finally exonerated after spending three years in prison for Maria Ridulph’s murder. The Illinois Bell Telephone Company had—miraculously—kept a record that confirmed that Mr. McCullough had indeed made a phone call 40miles away from Maria’s home on the night of her disappearance in 1957, and a new prosecutor who had inherited the case from his predecessor acknowledged that Mr. McCullough could not have committed the crime. Although the State conceded that Mr. McCullough was innocent and he was released, no prosecutor has faced repercussions in court for wrongfully imprisoning a senior citizen for a decades-old murder.
The Constitution is grounded in the bedrock principle of equal justice. Yet when it comes to the procedural rules that govern timeliness in the courts, prosecutors and defendants play on an exceedingly uneven playing field. Legislatures increasingly give prosecutors nearly unlimited time to bring charges against a criminal suspect, with one California lawmaker declaring in support of that practice that people accused of crimes “should never be able to evade legal consequences because an arbitrary time limit has expired.” But legislatures fail to follow that very principle when they impose strict deadlines on incarcerated people who seek to challenge the legality of their convictions in court. These defendants often have serious constitutional bases on which to challenge the legality of their convictions and sentences. Yet when they miss their deadlines, their claims are typically barred forever.