Habeas Corpus Blog

Habeas Corpus - The Good, The Bad, The Summary Reversal

There are three relevant Supreme Court decisions from the past couple of months that I have yet to cover.  They are in order of release: Hardy v. Cross, Cash v. Maxwell, and Perry v. New Hampsire.  So, just to make sure I put something up about them, I thought I'd stick them all in the same post.

There isn't a theme that connects all three.  But they aren't completely disconnected, either.  There was some great work from Sotomayor in Maxwell (in an opinion respecting the denial of cert.) and Perry (in dissent).  In both cases, she shined a light on two of the greatest causes of wrongful convictions: misidentification and jailhouse informants.  It's sad that, in the DNA era of wrongful convictions, not a single other judge joined her opinions or expressed any concerns about these problems in the criminal justice system.

I'll start with the front-end case of Perry.  In an opinion by Ginsburg, the Court holds that only identifications procedures arranged by the police are subject to pretrial suppression hearings to determine the reliability of the identification.  Those procedures that are not police arranged, such as where a civilian convinces another person in some manner that the defendant is the perpetrator, cannot be the subject of a pretrial hearing to determine  reliability.  So, even though an identification could have been made under extremely suggestive circumstances, it remains completely reliable evidence that a jury is free to hear and use to convict someone, so long as the police did not arrange it.  Let me repeat, Ginsburg wrote that.  Sotomayor dissented. 

I expressed my outrage about where the Court was going with the case back at the time of the argument.  As I said then, the disjunction between the Supreme Court and where society is at on these matters is striking and tragic.  As everyone around the country acknowledges, we should be doing more to protect against misidentifications, not less.  Only Sotomayor in her dissent showed any acknowledgement of the problem.

Back when the Supreme Court issued its opinion in the prison overcrowding case Brown v. Plata, there was a hyperbolic line in Scalia's dissent in which he stated "terrible things (were) sure to happen as a consequence of this outrageous order."  Let me be equally hyperbolic: terrible injustices are certain to happen as a consequence of the misguided Perry decision.  Innocent people will be wrongfully convicted and maybe even sentenced to death and executed as a result of Perry.  The Supreme Court had a chance to take a small step to make the system more fair.  Instead, they basically went backwards.*

*Once again, in an opinion by Ginsburg, a member of the alleged "liberal wing" of the Supreme Court.  Of course, that isn't going to stop pretty much every commentator from describing her (and Kagan and Breyer who joined her opinion) as liberal.  Tragic on many levels.  

On the other hand, Maxwell actually was a bright spot in habeasland.  The main issue in Maxwell focused on the reliability of a jailhouse informant.  The particular informant who had testified against Maxwell, Sidney Storch, was an infamous liar who had repeatedly testified in criminal cases as a jailhouse informant in order to gain personal advantages.  As I discussed in a prior post, outside of the unreliability of the jailhouse informant, the evidence of guilt was nearly non-existent.  There were compelling reasons to believe that an innocent man had been wrongfully convicted and sent to prison for life.

In Maxwell's case, the state courts premised its denial of relief on the factual finding that there was “no credible or persuasive evidence Sidney Storch lied at [Maxwell’s] trial in 1984.”  The Ninth Circuit had granted habeas relief, "meticulously set[ting] forth an avalanche of evidence demonstrating that the state court’s factual finding was unreasonable."*

*Quotes are from Sotomayor's opinion, discussed more below.

After relisting the case numerous times, the Supreme Court finally denied cert.  That was welcome news.  It also probably means that Maxwell won't be retried and will eventually be released.

Sotomayor issued an opinion respecting the denial of cert., stating that the Ninth Circuit properly did its job -- both procedurally and substantively -- in concluding that the state court's factual finding was unreasonable.  Although not directly, her opinion does raise some awareness about the problem of jailhouse informants in detailing the ways that Storch used alleged jailhouse confessions to get personal benefits.  And Storch is far from the only problematic jailhouse informant out there.

Scalia, joined by Alito, dissented from the denial of cert.  He makes the same old complaint that the Ninth Circuit didn't show enough deference to the state court.  His analysis isn't very persuasive, as he relied upon evidence that even the state courts found to be ludicrous.  As Sotomayor points out, Scalia's argument boils down to this: although there was evidence showing that Storch lied almost every time he opened his mouth, he miraculously told the truth about Maxwell's jailhouse confession.  It's pretty ridiculous.  At bottom, it appears that Scalia was simply taking another opportunity to criticize the Ninth Circuit -- a standard conservative legal dog whistle.

Finally, Hardy v. Cross was another entry in the Supreme Court's expanding "summary reversal based on a lack of deference" jurisprudence (Maxwell obviously escaped that fate).  The full Court concludes that the Seventh Circuit was not sufficiently deferential to the state court's conclusion that the prosecution made a good faith effort to find an unavailable witness. 

The opinion is short and there really isn't much in it.  My sense is that the Seventh Circuit cut through the b.s. and understood that the prosecution's claim of good faith was empty, as the prosecution made the most minimal effort to find the witness.  But I am constrained to agree that the law basically says that the minimal effort that was made there was all that's necessary.  Of course, as I am sure the Seventh Circuit understood, if the prosecution or the police really wanted to find the witness (for example, if they wanted to arrest her), it would have taken them probably about an hour to do it.  But that's not the standard.  So it's hard to say that the state court acted unreasonably.  But that is not to say that this was fair.  Just not (apparently) unreasonable.

Habeas Corpus - Around the U.S. - Part I

Some stuff I've seen:

A preview of the upcoming Supreme Court arguments from the North Country Gazette.

Speaking of Lafler v. Cooper, the Buffalo News had an article about the arrest of a man who obtained habeas relief in WDNY back in 2006 based on IAC during plea negotiations in a drunk driving prosecution in which he had struck and killed some people while drunk driving.  He was arrested for leaving the scene of a car accident that injured three people.

An article from Erwin Chemerinsky about the need for empathy on the Supreme Court.  One situation he points to is what happened in Maples.

More Troy Davis/anti-AEDPA coverage here.  The article indicates that, back in 2009, Rep. Hank Johnson from Georgia introduced legislation called the Effective Death Penalty Appeals Act (I guess it would be called "EDPAA," pronounced as a word the same as "AEDPA").  It received 17 co-sponsors, was referred to a sub-committee, but never obtained a hearing.  Here's the text of the statute.  The only change it would have made would have allowed a court to grant habeas relief in capital cases if petitioner could show that he was innocent.  Significant, but does not really address most of the complaints about the AEDPA.  Or at least it does not address my complaints.

Blood boiling time: two lawyers, one of whom served in the Reagan and Bush I Justice Departments, give a full-throated endorsement of the death penalty in response to the criticism from people upset over the Troy Davis case.  In their mind, the only problem with the death penalty in this country is that people are wasting everyone's time complaining about it.  I wish that was an unfair oversimplification of their position, but it really isn't.  A reader responds, what if the person executed is innocent?  Their response (and I really am not making an unfair oversimplification here) -- too bad.  They say that you can't have "perfect justice, which is impossible.  But the administration of the death penalty in the United States is as close to perfect as it gets."  A footnote adds that three times a day, the writers remove their heads from the sand in order to eat. 

Habeas Corpus - Around the U.S. (Abridged Version) - Corrected

Just a couple of things I've seen lately.

There was a somewhat recent habeas grant out of the Western District of Pennsylvania based on prosecutorial misconduct.  According to this article, "the prosecutors relied almost entirely on the testimony of a single witness who claimed to have witnessed Munchinski rape and shoot the two victims. However, the federal court judge said in her ruling that the alleged witness's story changed so often 'that one wonders whether he witnessed the murders at all.'"

The MJ who decided the petition also granted petitioner's request to be released from custody pending a new trial.  Petitioner had been in prison for 25 years.  The name of the case is Munchinski v. Wilson.

A really interesting habeas case out of Michigan referred to as the "Mother's Day Murder."  According to this article and video, a 7 Action News reporter in Detroit found a new eyewitness for the defense.  On Mother's Day 1999, a woman was shot while parked in a minivan with her three children aboard.  She later died.  Turns out the police never interviewed (at least) one of the children in the car.  This reporter found this child (who is obviously much older now) and he says that he could identify the shooter and his description of the shooter does not seem to match the description of either person who was convicted of the crime.  Most troubling to me was that it appears that the main evidence against the two people convicted of the crime were witnesses who claimed to hear the two defendants talk about the murder.  Those people later recanted saying that the police threatened them to implicate the defendants.

The habeas angle: the case is currently at the habeas stage in federal court.  The DJ assigned to the case has granted a stay to allow petitioner Justly Johnson to pursue the newly discovered evidence issue in state court.

Finally, on October 31 November 2, the Supreme Court is going to hear argument in the habeas case of Gonzalez v. Thaler.  Appeal and Habeas has a preview.

Habeas Corpus - AEDPA in the Spotlight

As a result of the Troy Davis execution last week, there has been a lot written about the death penalty.  And one of the focuses has been on the unfairness of the AEDPA.  For example, I liked this discussion about the Davis case that mentions the AEDPA.  Here's what it says about the AEDPA:

Compounding the effects of a hostile Supreme Court, in 1996 President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act,which further reduced the ability of potentially innocent defendants to assert their rights in federal court. A post-Oklahoma City bombing response that followed the common pattern of using a horrible tragedy as a pretext for pushing through pre-existing priorities, the AEDPA made it much more difficult for prisoners who—like Davis— were presenting new evidence rather than claiming clear violations of federal law.

Good stuff.  But while there definitely is a lot of shame to be spread around in the Davis case, I have been wondering how much of it should be attributed to the AEDPA and its original adherents (such as President Clinton -- I have no idea how what he says here is relevant to the Davis case).*

*Clinton also seems to have a little bit of buyer's remorse with the AEDPA as we previously saw with Bob Barr.  They have nobody but themselves to blame for its unfairness.

Of course, it's no secret how much I dislike the AEDPA.  There is no doubt that it causes a significant amount of plain old unfairness.  It has some fundamental problems that fairness dictates must be fixed (assuming we can't get rid of the statute altogether).

Setting that aside though, did the AEDPA result in unfairness in the Davis case?  I guess I'd have to go back and look through the lower court decisions to see for sure.  If I had to guess, I am sure the AEDPA limited Davis in his federal habeas petition as much as it limited the average petitioner.  That's a bad thing, obviously, and it should get the much needed attention that it seems to be getting.

But with respect to the actual innocence part of the Davis case, the AEDPA hatred can only go so far.  Despite the AEDPA, Davis was allowed to bring the actual innocence claim.  And he was given a full evidentiary hearing on it -- something that the AEDPA (post-Pinholster) now almost otherwise forbids.  Certainly, if Scalia had his way in Davis, the AEDPA would have cut Davis off.  But a majority of the Court gave Davis the chance. 

Don't get me wrong, I am not saying that it was the finest day for habeas.  It is sad that it had to take the extraordinary remedy of an original writ in the Supreme Court for the hearing to happen (and of course I am not missing the irony that the original writ had to be filed as a result of the extreme restrictions in the AEDPA).  But the hearing did happen and the AEDPA didn't prevent it. 

I guess that what I am saying is that I am happy that new light is getting shed on the unjust AEDPA.  There is a lot of basic unfairness in the statute.  I am just not sure that the Davis case shows how unfair the statute really is. 

But at the same time I do believe that, unfortunately, there will be a case where the AEDPA is fully to blame for an unfair result that, like Davis, will result in an execution of someone who has shown significant reasons to believe he is innocent.  While Davis may not have been the example of that, we should not have to wait for that to happen before the unfairness in the statute is addressed.

Let me sum it up like this: AEDPA = unfair.  AEDPA not the biggest problem in the Davis case.  But that should not stop a reevaluation of the fairness of the statute to prevent a future injustice.

Habeas Corpus - Capital Habeas In the News

Capital habeas corpus has popped up in the national news this past week. 

First, on a really sad note, Georgia announced that it had set September 21 as the execution date for Troy Davis.  I followed that actual innocence habeas case very closely around here.  I am guessing I wrote more posts about that case than any other single case. 

Second, the Supreme Court ordered a stay in a death penalty habeas case out of Texas, Buck v. Thaler.  The main issue in the case is race-related -- at the penalty stage of the trial, a psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released.  It's an interesting issue, as there were other cases in Texas that had the same problem, but Buck was the only one of those cases in which the State of Texas did not agree to a new trial.  So Buck stands out.

But there is a problem.  And it appears to be a pretty big one.  Buck, obviously, is a habeas case.  And in its most recent decision, the Fifth Circuit concluded that the petition raising this race-related claim issue was second or successive.  It is this decision upon which Buck is going to have to seek cert.  Reviewing that decision, I am not sure if I see a ground on which Buck could obtain cert -- either substantively or procedurally.  So I think the odds that Buck obtains cert, even though there are serious issues in his case, are not looking good.

Habeas Corpus - Articles

I had two habeas-related articles published recently. 

The first is called “Actual Innocence after Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases.”  It was published back in July in Pace Law Review. 

The decision in Friedman really is one of my all-time favorite decisions.  I wrote about it a lot when it first came out.  I looked at it as kind of like a perfect storm of pop culture, politics, and law.  Actually, in that particular post, I asked the following question:

Finally, on the law side, there is the nagging question in my mind of whether the judges should have delved into the innocence question.  It is safe to say that this was highly, highly unusual.  We may see something like this in a concurring opinion, or maybe a dissent.  But the majority opinion from a circuit court?  Exceedingly rare, if not one-of-a-kind.  I discussed this on the day the opinion came out.  I am not saying that I wouldn't want a court to do this. But the question remains:  did the court overstep proper judicial opinion-making boundaries in discussing their opinion of petitioner's innocence and pushing the DA to reinvestigate the case?

I kind of, sort of, as best I could, tried to answer that question in the article.  Actually, the question I answered was less about "proper judicial opinion-making boundaries" and more about whether a federal court in a habeas case should have done what the Second Circuit did.  I also cover other stuff and suggest that the Friedman decision can be used as a model for other federal courts to follow when faced with compelling claims of innocence on habeas review.  Warning: it's a long article.  You can read it here.

The second article was published last week in the Criminal Law Reporter.  I often write about the Toxic Twin opinions from the Supreme Court's last term, namely Richter and Pinholster.  I finally put my thoughts together and down on paper as to why those two opinions have really altered habeas law.  This article is not as long as the other.  Nevertheless, it goes into some depth on the issue.  You can download it here: Richter/Pinholster Article.

Habeas Corpus - A Call for Changes to the Federal Post-Conviction System

There has been even more good stuff from The National Law Journal lately.  In an article entitled, "Federal habeas corpus & actual innocence," Philip G. Cormier, Andrew Good, Barry C. Scheck and Harvey A. Silverglate discuss the many post-conviction roadblocks that has faced federal criminal defendant Jeffrey MacDonald, who has been pursuing an actual innocence claim based on DNA evidence.

It's a really interesting article and gives a lot of background about the MacDonald case, which I mentioned around here recently due to a Fourth Circuit decision in his favor. 

Of course, I prefer the article's subtitle's reference to all of this as part of the "federal post-conviction system" (which is the proper way to describe 2255 motions) as opposed to the main title's "federal habeas corpus" (which is not an accurate description of a 2255 motion), but that's not really that important overall.  The article is definitely worth a read.

And speaking of 2255 motions, I have written in the past about a 2255 motion filed in SDNY in the DiPietro case up in Westchester.  A local paper in Westchester named Westchester Rising had a series of articles documenting the paper's belief that DiPietro is innocent.  Now, the paper reports that a Hollywood producer is interested in potentially making a film about the case.  As the paper says at the end of the article, "Stay tuned." 

Habeas Corpus - Various Items

A few habeas-related things I have seen lately:

Further defense of habeas in response to King and Hoffman at a Ohio-focused blog called Gamso - For the Defense.  It's long but good.  And I joked about this before, but now The End of Habeas is a movie, or at least a youtube video.

An en-banc Ninth Circuit reaffirmed a prior grant of habeas relief to a "teen mass murderer" in Doody v. Ryan.  The court had previously granted habeas relief on the grounds that the petitioner had not been properly advised of his Miranda rights.  The Supreme Court GVR'd the case in light of Florida v. Powell.  However, on remand, the Ninth Circuit held that Powell did not change its conclusion that habeas should be granted.

At the other end, the Fourth Circuit reversed a grant of habeas in Jackson v. Kelly.  The district court had held an evidentiary hearing and then granted habeas relief based on IAC during the penalty phase of petitioner's case.  In the new extraordinarily restrictive post-Richter and post-Pinholster habeas landscape, the Fourth Circuit held that, based on the evidence that was before the state court, its decision was not unreasonable.

Freakonomics reports that a recent study to be published shows that initial sentences handed down to minority defendants convicted of killing white victims were as much as 9 percent more likely to involve errors that had to be reversed than were those in cases involving a minority defendant killing a minority victim.  According to the summary of the study, "This result holds strong both for the cases that reach the final stage of revisions and appeal, the Habeas Corpus stage in Federal Courts, and for the full sample of cases in the first appeal stage, called Direct Appeal."

An interview with Laura Moye of Amnesty International about the Troy Davis case.

The Atlantic has a short post by Wendy Kaminer entitled, When Justice Becomes a Mere Technicality.  Using the Second Circuit case of Rosario v. Griffin as an example, the writer states that, under our current system, "as long as the state observes all procedural niceties (or technicalities), it is empowered to execute people* who, on second thought, seem innocent. The state is not required to entertain such inconvenient second thoughts."

*Kaminer acknowledges in her analysis that Rosario has actually been sentenced to 25 years to life, not the death penalty. Nevertheless, her logic stays the same -- the State won't reconsider the question of petitioner's innocence even though he faces a maximum term of life in prison.

 

Habeas Corpus - The End of the Troy Davis Case

I am sad to report that the Supreme Court has denied all of Troy Davis's attempts to have the Court review his claim to innocence.  There is a really comprehensive post about the case up at SCOTUSblog.

While this will probably be of little comfort to Davis, the litigation did move forward the cause of a free-standing actual innocence claim.  The strong undercurrent of the Supreme Court's unusual order from last year sending the case down for a hearing was that such a claim did indeed exist.  Otherwise, there would not have been much of a basis for the Court's order.  And after the hearing, the DJ did definitively conclude that a free-standing actual innocence claim did exist.  That is a big step forward.  It would have been nice for the Supreme Court to confirm that this is true.  Oh well.  I hate to sound too optimistic about this, but I am sure it will eventually happen.

Habeas Corpus - SCOTUSblog Bringing the Interesting

Two really interesting posts over at SCOTUSblog the past couple of days.

The first post has to do with the Troy Davis actual innocence case.  According to this  Davis's attorneys have filed two separate actions with the Supreme Court asking the Court to accept review of the case.  The two actions raise many novel questions, including whether the Circuit Court had the authority to review the district court's decision (which represents the sole issue raised in one of the actions) and the really important question of what's the standard in a free-standing actual innocence claim.  Interestingly, it does not appear that Davis is asking the Court to consider whether the free-standing claim actually exists.  The questions presented all seem to take for granted that it does exist.  That's a big leap forward.  Is it justified?  Of course, I would say yes, but I am guessing some of the judges would disagree with that.

The second post has to do with some current relists.  According to the post, the Court has relisted two cases that directly raises the issue of whether the Court should overule the "prior conviction" exception to the Apprendi rule.  Based on the number of relists, it is most likely that a judge is writing a dissent from the denial of certiorari.  The other plausible speculation is that three judges are campaigning a fourth (mostly likely Kagan) to agree to grant cert.  This could be a big, big deal.