I just finished reading Alito's dissent from the denial of cert. in Smith and, to be honest, I don't get it. Why use the court's resources to dissent from this case? To me, it's a head scratcher. And in certain ways, it is actually helpful to habeas petitioners.
The issue in Smith is whether the court gave coercive instructions to deadlocked jurors during its Allen charge. Throughout the instruction, the court commented on the evidence, telling the jury what evidence was important and what they should be looking for when they evaluate it. Not only that, but he actually played the defendants' statements to the jury. This seems pretty extreme.
Alito begins his analysis by looking at what is the "clearly established law" in this context. He concludes that the law is "sparse." But what looks to be a Musladin analysis ends up shifting for the better. Rather than say that there is no clearly established law in this context, he states that the standard is pretty general. He concludes, "A general standard such as this gives state courts wide latitude for reasonable decisionmaking under AEDPA," citing Yarborough v. Alvarado. That's not too remarkable.
However, it's the next sentence that I think is favorable for habeas petitioners. He says, "That latitude is wider still in this case, as no constitutional decision of this Court has ever explained how the general rule against 'coercion' applies to the traditional practice of judicial comment on the evidence." He "cf."'ed Musladin on that one.
Boom. Stop there. That's big. What these three judges are saying is that a habeas petition no longer needs to be automatically denied if there is no clearly established law right on point. They are suggesting that the analysis is pretty deferential when a petitioner wants to apply a general law to a new area. But it is not, as all courts have been applying Musladin, an automatic denial. That's a retreat from Musladin! While not perfect, that would be an improvement in the law. I truly hope these three judges mean what they are saying. I hope they get a chance to be held to these words.
And then the opinion gets weird. Alito basically says, "What is wrong with a judge expressing her opinion about the evidence?" He says that the common law practice (a long, long time ago in a court of law very far away) was for a judge to give his opinion on the evidence. And the Supreme Court used to condone the practice. So how can the state court's decision upholding the practice be unreasonable?
This is just shocking to me. Is this really what these judges want? Let's flip this around, what if a judge tries to coerce the jury into acquitting the defendant? Would they be happy with that? I am guessing it would make their heads explode. But that is what they would allow. And there would be no oversight in that situation. I am not sure whether they thought this thing through. It's kind of why we don't want judges expressing their opinion -- it's potentially unfair to BOTH sides and it's not good for the system. It's why our legal system has moved away from it (and Alito is forced to admit that the practice is "on the wane" -- an understatement if I have ever heard any). Just shocking.
In any event, even if the judges didn't agree with the lower court's decision, I just don't see why this dissent was necessary here. I think the trial judge's actions were pretty extreme. Extreme enough that I think a habeas grant was within the mainstream of potential outcomes. I just don't get it.