Pace Law Review is putting a call out for "proposals from scholars and practitioners for [their] third annual issue on New York law that they will be publishing in Spring 2011." I have uploaded the call here: Download New York Law Call
One of the areas covered is New York "criminal procedure." I am guessing that people reading this post may know a little bit about that and could potentially come up with article ideas.
Back in June, the Supreme Court issued its opinion in Magwood v. Patterson. I discussed it briefly here.
It was a big win for the habeas petitioner with a very unusual lineup of judges.
I have written an article about the case that was recently published in the BNA Criminal Law Reporter. The name of the article is: "Supreme Court's Surprising Lineup in Magwood v. Patterson Reflects Consistency in Justices' Philosophies on Habeas Corpus." The cite is 87 Crim. L. Rep. (BNA) 761 (August 11, 2010).
The article talks about the history of the Magwood case, what happened in the Supreme Court decision, some theories as to how the judges ended up voting the way they did, and the possible impacts of the decision.
Click on the link below if you would like to read it (the article even includes a photo of me, if you are curious to see what I look like when I am trying to look serious).
Late last night, SCOTUSblog posted a list of roundups and discussions about the upcoming Supreme Court term. Probably can't make it through all of them.
But I was able to check out the one written one written by Pamela Harris at the Georgetown Law Center Supreme Court Institute. There's also an update. Most relevant to stuff around here, on pages 35-39, she discusses the four habeas cases to be heard this term: McDaniel, Wood, Beard and Smith (or should I refer to it as Spisak, I have seen it both ways).
I have previously discussed McDaniel (and here), Wood and Smith/Spisak. Beard is going to be argued next week, so I hope to mention something about it before the end of the week.
On pages 11-14, the update gives a brief discussion of the new cert. grant in Holland, Thompson and Smith (or should I just call these the Berghius cases). I have previously mentioned those cases here and here. I haven't yet given too much analysis to those cases. I'll get something up on them before the argument dates (making a lot of promises around here).
All in all, it looks to be a pretty active term in habeasland for the Supreme Court.
I am a little late to the party on this one, but law professor David Kaye at PSU authored an article in the Mich. L. Rev. concerning the problems with the DNA evidence in McDaniels v. Brown, the habeas case to be heard by the Supreme Court on October 13. I previously discussed the case here.
In my prior post, I expressed a little dismay that I was having a hard time with the math, despite my mathematical background. Kaye's article does a pretty good job of explaining the math. At least, the lights began to click on for me after reading it. I don't think I can do a better job of explaining it. It's not a particularly long article, so I recommend taking a few minutes to read it. One thing it did remind me about when working with mathematics: it's all archaic symbols and abbreviations. It made my head spin in college and I couldn't wait to graduate and move on to law school where at least I would be working in a language that actually had words.
Getting back to the article, Kaye's legal thesis is basically that, yes, the expert in McDanial got the probabilities of a match wrong in a couple of different ways, but that the errors were not particularly big and should not have been considered to be of constitutional magnitude. He points out, though, that the Supreme Court won't be reviewing the problems with the DNA evidence, or even whether the Ninth Circuit got it correct when it found that the errors with the DNA evidence established a constitutional violation. Rather, the questions in McDaniel are procedural -- whether the Ninth Circuit properly applied the sufficiency of the evidence standard and whether the federal court's properly considered expert evidence never presented to the state courts.
Kaye does not go too far in depth with these questions, but I do like his answer to the second question: courts should be allowed to consider the expert testimony in this case since the expert was doing nothing more than math that the federal courts were allowed to do on their own. A kind of judicial notice, if you will. That's one thing I actually did love about math -- there were right, indisputable answers. If an expert does some math wrong, why can't a court, on its own, re-do the math correctly? It's a universal language that will give you a definitive answer. Of course, most math is outside the ken of the average juror, so evidentiary presentation as to the proper math would require an expert. So should a court engage in universal mathematical analysis with the ostensible guidance of an expert even though the math was never calculated correctly by an expert before the jury? As a math major, I say yes! Aren't we just getting at a universal truth that is out there regardless of whether it was presented at trial? Once again, I say yes! But knowing the dreary prospects for most habeas petitioners, I would say that the Supreme Court probably wouldn't agree.
In any event, I don't see the court even reaching this question. As I mentioned in my first post, I don't anticipate the court saying much in this case, other than criticizing the Ninth Circuit for its sufficiency analysis.
Courtesy of Doug Berman in this post at Sentencing Law and Policy, I was alerted a few weeks ago to a new article in the NYU Law Journal entitled, "Rethinking the Federal Role in State Criminal Justice," written by Professors Joe Hoffmann and Nancy King.
The abstract pretty much tells the story:
This Essay argues that federal habeas review of state criminal cases
squanders resources that the federal government should be using to help
states reform their systems of defense representation. A 2007
empirical study reveals that federal habeas review is inaccessible to
most state prisoners who have been convicted of noncapital crimes and
offers no realistic hope of relief for those who do reach federal
court. As a means of correcting or deterring constitutional error in
noncapital cases, habeas is failing and cannot be fixed. Drawing upon
these findings as well as the Supreme Court’s most recent decision
applying the Suspension Clause, the authors propose that Congress
eliminate federal habeas review of state criminal judgments except for
certain claims of actual innocence, claims based on retroactively
applicable new rules, or death sentences. The federal government
should leave the review of all other state criminal judgments to the
state courts and invest, instead, in a new federal initiative to
encourage improved state defense services. This approach can deter and
correct constitutional error more effectively than any amount of habeas
litigation ever could.
When I first read about it, I was obviously pretty antagonistic. I mean, the article basically suggests that habeas almost be done away with. Habeas is this blog's reason for existence, so how can I not be antagonistic?
But I have now read the article and it's a pretty good read overall, particularly as to the current state of habeas corpus. For anybody interested in habeas, it's worth the time.
At the same time, I think the whole "end habeas corpus as we know it" movement to be a bit tiresome and disingenuous. This article as well as others that I have seen recently make an extremely persuasive case that habeas in its current state is broken. As a result, they say that it is habeas that is the problem, so let's restrict it further.
But why blame the victim? Habeas corpus is broken because IT HAS ALWAYS BEEN THE RIGHT'S INTENT TO BREAK IT. And that was not a very hard thing to do. What powerful figures over the past forty years, outside of a couple of liberal Supreme Court Justices, spent any capital fighting against the rollback of habeas? In contrast, it seems to have been a main goal of the Rehnquist Court to break habeas and it took the Republican majority less than two years after taking over in 1994 to get the AEDPA out there (no thanks to Bill Clinton). Obviously, it was pretty high up on their agenda, even if it didn't quite make it into the Contract Against, I mean, With America.
To say now that habeas is broken and it needs to be fixed is an easy thing to do. Who out there is going to claim that it isn't in a pretty bad state? To say it's broken is not particularly compelling. It's only compelling to read how broken it really is.
But the solution offered in this article -- restrict habeas even more and put all of our trust in the state courts -- is pretty illogical. It's a fox meet henhouse situation. Very good defense attorneys spend every working minute trying to get state courts to uphold defendants' constitutional rights. The state courts respond by finding ever more clever ways to get around it. Certainly, as the authors propose, it would be nice for money to be pumped into criminal defense. Maybe it will make a difference in the outcome of a few trials. But it won't cure the state courts' general disregard of constitutional rights. Contrary to the authors' belief that this is some kind of liberal complaint, it's a reality. Spend a few days in trial court, or before the Appellate Divisions, and you will see that these elected judges' main goal is to remain off the front page of the Post.
So it is one thing to say that habeas in its current state is broken. But its another to say as a concept that habeas corpus review in the federal courts is broken. I don't think it is. It remains necessary.
Because it remains necessary and important, it should be beefed up, not restricted. Sure I sound like a knee-jerk criminal defense attorney, but there can't be enough voices out there in defense of habeas. There sure are plenty out there saying that its broken.
Here are some pretty painless suggestions to make habeas review better: get rid of the standard of review -- its oppressive to both habeas petitioners and the federal judiciary who are forced to apply it. Ease some of the procedural restrictions. Or give federal courts more discretion in reviewing claims that do fall victim to some of the procedural restrictions. Maybe a plain or clear error standard should replace the incredibly difficult to meet cause-prejudice/miscarriage of justice standard. Or expand the miscarriage of justice standard to go beyond just innocence cases. Alter the retroactivity rules that currently are illogical and unfair.
I guess you can see where I am going with these suggestions. Rather than cry uncle to the habeas-haters, let's try and undo some of the major damage that has been done to habeas corpus review over the past 40 years.
At the same time, I am far from a pollyanna. Some of the procedural restrictions have some real purpose. Exhaustion comes to mind. And I am not even that much against the statute of limitations (but limiting it to one year is a bit oppressive).
On a macro level, habeas wouldn't be such a burden for the federal courts if there weren't so many state criminal defendants. Fix the criminal justice system and habeas won't be as big a burden on the federal courts. Stop using the criminal justice system to address every single societal problem. More funds to prosecutor's offices for training on how better to exercise prosecutorial discretion. Completely reform the way that the system handles drug cases. Decrease the amount of long-term incarceration for so many crimes. In the end, less people in custody=less habeas corpus petitions. Less a problem for federal courts.
Obviously, these types of macro fixes are a ways off, if they ever occur. So if we as a society want to use the criminal justice system to incarcerate so many people, I think we have no choice but to keep habeas as a viable avenue of review. It simply cannot be left almost exclusively to the state courts. Habeas corpus doesn't need to be robust, but it needs to be real.
UPDATE: For an interesting and timely discussion about the rise in the prison population, see this op-ed from Charles Blow in the New York Times.