May 26, 2012
My first post in quite some time deals with the Supreme Court's decision last week in Metrish v. Lancaster, which reversed a Sixth Circuit habeas grant. The most disturbing thing about the opinion is that it appears to me that the Court has, as a practical matter, elevated AEDPA deference to a reasonable doubt standard in favor of "reasonably bad" state court decisions. This is unfortunate for several reasons.
Lancaster: The Case of the Disappearing Defense
In 1993, Burt Lancaster shot and killed his girlfriend in a shopping mall parking lot. Lancaster, “a former police officer with a long history of severe mental-health problems,” presented a diminished-capacity defense to a jury. The jury found that Lancaster had the capacity to commit willful, deliberate, and premeditated homicide and accordingly convicted him of first-degree murder.
Eight years later, a federal habeas court reversed the conviction on Batson grounds, holding that the prosecutor had impermissibly used race as a factor in jury selection. Four years after that, in 2005, Michigan again tried Lancaster for the murder. Lancaster’s plan, once again, was to go with a diminished capacity defense. However, that was a problem this time around. In 2001, the Michigan Supreme Court ruled that there was no diminished capacity defense under Michigan law, notwithstanding that Michigan’s lower courts had continually recognized such a defense. The judge presiding over Lancaster’s retrial applied the new decision ("Carpenter") and excluded evidence of diminished capacity. Lancaster and his attorney apparently did not view this ruling as a sign that they were facing a hangin’ judge: they proceeded with a bench trial after which Lancaster was again convicted of first-degree murder and sentenced to life plus two years. The Michigan Court of Appeals affirmed.
Lancaster’s habeas claim was that the Michigan courts violated due process by applying Carpenter, 2001 Michigan Supreme Court decision, to a 1993 homicide. The District Court denied the petition, but a divided panel of the Sixth Circuit reversed and granted.
Last week, the Supreme Court reversed the Sixth Circuit. The core of its opinion is that there was no Supreme Court case on point – therefore the Michigan court’s decision could not be an unreasonable application of clearly established Federal law as determined by the high Court. The closest Supreme Court precedent was Rogers v. Tennessee, a 2001 decision where the Supreme Court denied a Due Process claim stemming from a retroactive application of a state court decision abolishing another common law defense (the “year and a day” defense under which a defendant could not be convicted of murder unless the victim died within a year and a day). In Rogers, the Court ruled that “judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’”
The Supreme Court acknowledged that Lancaster might have prevailed if the Court were to apply the Rogers rule de novo. To be sure, that acknowledgment was tepid ("Lancaster’s argument against applying Carpenter retroactively is arguably less weak than the argument opposing retroactivity we rejected in Rogers”). But the Court did a good job acknowledging the merits of Lancaster's Due Process claim. Unlike the year and a day rule at issue in Rogers, the diminished capacity defense was “not an ‘outdated relic of the common law’ widely rejected by modern courts and legislators.’” To the contrary, the Model Penal Code includes a diminished capacity defense, the American Bar Association has reported that a majority of States allow presentation of diminished capacity evidence in at least some circumstances and, prior to Carpenter, the Michigan State Bar’s pattern jury instructions included an instruction on diminished capacity. Also unlike Rogers, Michigan appellate courts had regularly acknowledged diminished capacity as a viable defense both before and after Lancaster’s first trial.
However, the Supreme Court held that Lancaster could not rely on Rogers, “a case in which we rejected a due process claim,” to overcome AEDPA deference:
This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fair minded jurists could conclude that a state supreme court decision of that order is not ‘unexpected and indefensible by reference to [existing] law.’”
While AEDPA deference can often result in injustice in individual cases, in this case it strikes me as particularly stark. As Justice Breyer noted in his Rogers dissent, “the Due Process Clause asks us to consider the basic fairness or unfairness of retroactive application of the [state] court's change in the law.” Justice Stevens' Rogers dissent criticized the majority for “undervalu[ing] the threat to liberty that is posed whenever the criminal law is changed retroactively.” (Justice Scalia also wrote a lengthy dissent in Rogers focusing on the history of retroactive changes in common law). In Lancaster, the majority essentially admitted that the petitioner did not have fair warning that the Michigan courts would abolish the diminished capacity defense. In denying his claim, the Court indicated that it was willing to ignore such threats to liberty in the habeas context.
The case was admittedly complicated by the long delay between Lancaster's first trial and the retrial. But that delay is more properly laid at the feet of the prosecutors who violated Batson (and waited four years to retry the petitioner after the first conviction was reversed) and the courts which took ten years (including an appeal of the Batson habeas grant) to resolve that claim. A practical consequence of the Supreme Court's decision is that Lancaster is held responsible for the delay.
Inside Out Reasonable Doubt
What disturbs me more generally is the Court’s continued ratcheting up of AEDPA deference in favor of reasonably bad state court decisions. To describe that deference, the Court used language I first noticed in its 2011 decision in Harrington v. Richter: “To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” When I read this "any possibility" language in 2011 it struck me that the Court had essentially imposed a “beyond a reasonable doubt” standard for habeas petitioners. Lancaster convinces me (beyond a reasonable doubt, you might say) that this is indeed the current standard.
I understand that AEDPA deference is grounded in important interests – comity, federalism and scarce judicial resources, to name a few. But by further closing the door to habeas relief, I believe the Roberts court is favoring these interests too much over the judiciary’s primary interest (and core competence) of doing justice in individual cases. If the Justices feel that other interests should weigh more heavily in the habeas context, they need to do a better job of explaining why.