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.