After I wrote the last post about the Washington Post editorial, I gave a lot of thought to the Post's comparison of the process required when there is a taking of property vs. the process required when there is a taking of life.
I shouldn't have written that sentiment off as much as I did. In reality, they were just making a common sense observation. And a good one at that. While I don't think it will get the petitioner in Maples anywhere, I now see it as enlightening.
I think that most lay people would find it difficult to accept that an attorney mistake can prevent a federal court from reviewing a habeas petition.
But I can think of other common sense dissonance in habeasland:
I think that most lay people would be surprised to hear that the federal courts offer more procedural protection to a claim that property was taken without proper process than it does to a person facing the death penalty.
I think that most lay people would be shocked to hear that the Supreme Court has never held that executing an innocent person violates the Constitution and that a federal court can't stop a state from carrying out the execution of an innocent person because there is no "clearly established law" that says that they can't.
I think that most lay people would be completely dumbfounded if you told them that a petitioner has received constitutionally sufficient representation when an attorney failed to admit a DNA test showing that someone else had raped the victim -- especially where the DNA match was to someone who had allegedly committed other rapes (see Gueits).
If given time, I am sure I could think of many others.*
*Of course, I would be remiss if I didn't mention the depraved indifference cases. Try and explain to a lay person that a petitioner is getting relief for the precise reason that he intentionally killed someone. That's pretty tough to do.
Alas, habeas law is what it is. Congress has limited its availability. The federal courts have created the procedural rules based on notions of federalism, comity, and finality.
Common sense is just not a big factor. But that doesn't mean that we shouldn't be asking those common sense questions. I think I am going to institute the "common sense scale." Rate certain decisions as to whether they make sense from a lay person perspective. Won't do it all time. Just here and there where it makes sense. I'll play it by ear.
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