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August 31, 2009

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There are a number of errors in Erica Goldberg’s preview of McDaniel v. Brown, which appeared on Scotusblog last Friday, August 28, 2009. By emphasizing a supposed fallacy in the Ninth Circuit’s reasoning, the preview obscures the true importance of the two questions upon which the Supreme Court has chosen to hear argument.

First, the preview fails to recognize that the right of habeas corpus extends to only those state prisoners who are being held in violation of the Constitution or laws or treaties of the United States. The preview’s assertion that the Ninth Circuit was unclear as to whether it conducted a sufficiency analysis or a due process analysis is thus itself seriously flawed. The Ninth Circuit could entertain only a claim that Brown’s due process rights were violated, and that was the only claim it addressed. The Ninth Circuit began its opinion with an introductory paragraph stating its holding, which affirmed the district court’s conclusion that Brown was denied due process. The opinion cites, and relies upon Jackson v. Virginia, the seminal Supreme Court decision setting forth the standard for evaluating the existence of a due process violation: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” It is apparent that the preview’s author was confused by Jackson’s due process/sufficiency analysis, but certainly the Ninth Circuit opinion does not evidence any such confusion.
Because Brown filed his habeas petition following AEDPA’s effective date, the Ninth Circuit was required to view Jackson’s pre-AEDPA constitutional analysis through the prism of AEDPA. It plainly held that the Nevada State Supreme Court’s decision on the merits was both “contrary to” and “an unreasonable application of” Jackson, which is “clearly established federal law, as determined by the Supreme Court of the United States.” Thus, habeas relief was warranted. The Ninth Circuit’s majority opinion may be fairly criticized on several grounds, all of which are set forth in Judge O’Scannlain’s dissent, but not for an inconsistency in the constitutional right the majority analyzed. Of interest is that, despite Judge O’Scannlain’s dissent, the appeal did not result in rehearing en banc.

Second, the preview fails to acknowledge that habeas proceedings are civil in nature. The petitioner files a civil action against the Warden of the state prison in which he is assertedly incarcerated in violation of his constitutional rights. The remedy is typically to order release if a violation is found, but generally, out of deference to the state prosecutor, the federal court will allow the prosecutor some time to determine whether retrial is appropriate. Here, the district court ordered that “Respondents shall retry Brown within 180 days or shall release him from custody,” and the Ninth Circuit affirmed that order. This is not a conditional order; release is not conditioned upon failure to retry. Rather, it is an order in the alternative. The preview misreads this order to require retrial, when it plainly orders retrial or release. The prosecutor may very well conclude that he cannot retry Brown due to principles of double jeopardy, or the state courts may dismiss an indictment on those grounds, but that issue was not before the habeas courts to decide. It was not alleged by petitioner or as a defense by the state warden, and, not surprisingly, neither party contested the release order. Not even Judge O’Scannlain raises this purported concern with the majority opinion. Because the order is in the alternative, if Brown cannot be retried, due to a constitutional or other impediment, he will be released. Habeas practitioners generally understand this ordinary alternative order.

Although Brown challenged neither the district court’s alternative remedy nor application of Jackson before the Ninth Circuit, it is understandable that he now seeks a remand to the Ninth Circuit on the basis that certiorari was improvidently granted. The answers to the two questions on which the Court granted review may have dire consequences for future habeas petitioners.

The first question, concerning the standard of review for a constitutional claim of insufficiency, could provide a means for overruling Jackson itself, at least for post-AEDPA cases. The second question may pose even graver consequences, if the Court determines that a federal habeas court may not expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence at the state trial. Here the supplemental evidence did not alter the DNA test results; it merely clarified the testimony about them to show that the state’s expert witness falsely testified that the DNA testing demonstrated a 99.99967 percent chance that Brown is guilty of the crime. The highly publicized case of Cameron Todd Willingham, the quite likely innocent man Texas executed after he was convicted of arson based largely on scientific evidence later proved to be false, illustrates this point. See David Grann’s article, Trial by Fire: Did Texas Execute an Innocent Man?, in the upcoming New Yorker and Bob Herbert’s op-ed, Innocent but Dead, in the August 31, 2009 edition of the New York Times. Mr. Willingham’s federal habeas petition was denied without a hearing, but query whether a federal habeas court would have been permitted to consider scientific evidence that demonstrated the evidence of arson admitted at trial was deeply flawed, even by the standards of the day, which was developed long after the trial by a noted expert.

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