Knowles v. Mirzayance, __U.S. __, 129 S. Ct. 1411 (March 24, 2009) (located here)
Back in March, the Supreme Court decided Knowles v. Mirzayance. I believe that one of the reasons the Court may have decided to hear it originally was to address an open question about whether a federal court should analyze a claim under the deferential standard of review (see FAQ 3) when the state court did not issue a reasoned opinion on the claim. In the end, the Court decided not to tackle that potentially tricky issue since all nine judges agreed that the defendant’s claim should be denied. The only intriguing issue is the breakdown of the judges, which I’ll get to in a second.
The issue: A defendant argued that his lawyer was constitutionally ineffective during the guilt phase of a death penalty case because his lawyer convinced him to withdraw his insanity defense.
The facts: It’s slightly confusing, but in California, when a defendant seeks to plead not guilty by reason of insanity, the court must hold two separate proceedings. First, a trial, at which the defendant’s guilty would be determined. And then a separate proceeding at which the jury would decide whether or not he was insane.
Here, during the guilt stage, the defendant presented evidence of insanity, hoping to get a conviction on a reduced count. The jury still convicted him of first-degree murder. The attorney then recommended that the defendant not pursue an insanity defense at the insanity hearing. At a later hearing, defense counsel did offer some reasons for his recommendation, mainly that the defendant’s parents effectively refused to testify at the hearing; their testimony would have provided “emotional impact” to the defense.
The California state courts rejected the defense argument that counsel’s actions were constitutionally deficient without offering any reasons for the rejection.
The defendant then brought a federal habeas petition. The case bobbed up and down in the federal courts until the Ninth Circuit (which covers several western States including California) upheld the lower court’s conclusion that counsel was ineffective because counsel did not make a “true tactical choice” in abandoning the insanity defense as counsel had nothing to gain by dropping the defense.
The Supreme Court rejected the Ninth Circuit’s approach and concluded that counsel was not ineffective. The Court did not address the question of whether to review the claim should be reviewed under the deferential standard of review in the AEDPA (see FAQ 2) or de novo (meaning “as new” without any deference to the state courts). Six of the judges found that, under either method of review, the Ninth Circuit’s reasoning had to be rejected. Part II of the opinion, in which these six judges reviewed the Ninth Circuit’s decision under the deferential standard of review, can best be described as a smack down. The Supreme Court is very fond of reversing Ninth Circuit decisions. Here, they took great glee in offering the smack down.
Three of the judges – Scalia, Souter and Ginsburg – did not join the smack down. For the analysis of the claim, they only joined Part III, which addressed the claim de novo.
So, what gives? Why did these three judges not join the smack down? And why these three judges in particular? Isn’t Scalia considered a conservative judge who just loves going for the smack down? And what about Stevens, one of the more liberal judges? Why did he join in the decision that addressed the claim under the deferential standard of review?
I wish I could offer a grand unifying theory here, but there really is no clear answer.
Different people around the internets have suggested different theories as to why this happened. One theory suggested in the comments to this post at Sentencing Law and Policy is that the three judges decided not to join the majority since there was no reason to analyze the claim under the deferential standard of review since, even under the broader non-deferential standard, the claim had to be rejected. In other words, it was not necessary to address the claim under the more restrictive standard because the claim fails under the more generous one that the defendant asked the Court to use. This may explain why those judges decided not to join that one section of the opinion, but obviously we can't know if that's the case.
Another explanation is that the liberal judges may have attempted to send the message that the deferential standard should not be used under those circumstances. Of course that doesn’t explain Scalia, who is often looked at as a conservative judge. But it is important to note that, on criminal defense issues, Scalia has been a pretty defendant-friendly judge over the past few years. I am thinking of cases such as Crawford and Apprendi/Blakely and today’s Fourth Amendment decision in Gant. On the other hand, Scalia does often vote against the defendant in death penalty cases. So his vote here is really hard to figure out. Also, if the liberal judges’ intent was to signal their position about the proper standard of review, why did other “liberal” judges, like Stevens, join in the smack down?
As for Stevens, a post over at Crime and Consequences offers an interesting theory as to what Stevens’ motivation could have been. During the argument in Mirzayance, some of the judges (including, oddly enough, Scalia) were offering an analysis that would read the deferential standard in a constrictive way with regard to the meaning of “unreasonable application” of Supreme Court precedent (I know, this is geared towards the habeas technocrats, otherwise see FAQ 3). These judges were suggesting that an application of Supreme Court precedent would only be unreasonable if the Supreme Court said it was unreasonable. At least, that’s how I read it. Anyways, Stevens may have joined the smack down so as to ensure that the analysis as to what is considered an “unreasonable application” would remain broad.