Habeas Corpus Blog

Habeas Corpus - Ninth Circuit Habeas Grant

By JK

I kind of really like this Ninth Circuit stuff.

Last Thursday (12/9), the Ninth Circuit granted habeas relief to a non-capital habeas petitioner in a case called Ortiz v. Yates.  The issue in the case was whether petitioner’s right to confront the witnesses against him was violated when the court precluded petitioner from questioning the complainant, a/k/a his wife, about whether she was “afraid to deviate from her initial incriminating statement because of threats allegedly made against by the prosecutor.”

A two-judge majority concluded that the California state court’s decision upholding that curtailment of cross-examination was an objectively unreasonable application of the Supreme Court’s decision in Michigan v. Lucas.  And the error itself had a substantial and injurious effect on the verdict because the wife’s testimony was “a ‘central, indeed crucial’ witness for the prosecution.”  The majority reversed the district court’s denial of the petition.  The dissenting judge concluded that, even if error, it was nothing but harmless.

Here are some observations: always good to see a court still willing to grant a petition under the “unreasonable application” prong of the § 2254(d) standard of review, even in the face of the daunting Richter standard. 

And this particular constitutional issue – whether there was an arbitrary or disproportionate restriction on a defendant’s ability to cross-examine adverse witnesses as to their biases or motives for testifying – seems to be one that the Ninth Circuit takes particularly seriously.  In fact, this is the second habeas grant this year on this particular issue (curtailment of right to confront/violation of right to present a defense).  The other was in Jackson v. Nevada.* And, as noted in the opinion, the court has granted two other habeas petitions within the past few years on this issue (Holley v. Yarborough and Fowler v. Sacramento Cnty. Sheriff’s Dept.).  In other words, keep an eye out for that type of claim.

* D/D my office represents the petitioner in that case.

I guess, as I have written before, it's important to note that all circuit court habeas grants face the real prospect of a summary reversal.  Let's see if the State gets any traction in the Supreme Court on this one.  I am going to go out on a limb and say they won't, particularly because the dissent focuses mainly on the question of harmless error.  Or maybe we should brace ourselves for a whole new type of summary reversal -- the "all constitutional errors are harmless in habeasland" summary reversal.  Would not be surprised to see it at this point.   

Habeas Corpus - Matt's First Post

By MK (posted by JK)

Corby v. Artus: A “Prototypical Form of Bias?”

 Last week in Corby v. Artus, No. 11-1650-pr (2d Cir. Oct. 10, 2012), the Second Circuit overturned a decision by Judge Swain of the SDNY granting a 2254 petition on the ground that the petitioner’s Confrontation rights had been violated at trial.  Unless the Supreme Court grants cert (unlikely since this Confrontation issue is not of the Crawford variety), the Circuit’s decision will end a sixteen-year saga that has divided every reviewing court it has reached. 

The most remarkable aspect of the decision is that it relies primarily on state trial counsel's failure to adequately object - a point which neither the New York Court of Appeals nor the district court raised in their decisions.  In fact, the Circuit tread pretty lightly on the real issue in the appeal: whether the state court unreasonably applied Supreme Court precedent.  More on this below - first, it helps to briefly review the facts and the appellate history of this long and divisive case.

At first glance this case is your typical drug-dealer-on-drug-dealer crime: Norcott Corby was charged with the 1996 robbery and felony murder of Yousef Mohammed, a drug dealer from San Francisco who was visiting New York City to sell Corby heroin. The drug deal was supposed to take place in the Manhattan apartment of Xanderia Burnett, whose mother had once dated Corby.  Burnett, the prosecution’s star witness, testified that she agreed to let Corby use her apartment for the deal.  She stated that she saw Corby and two associates disappear into a back room.  When they emerged, she saw Mohammed lying on a bed, his hands tied behind his back and blood pouring from his head.  Burnett testified that she helped Corby dispose of the body and steal drugs from Mohammed’s hotel room.

The Confrontation issue arose from the defense’s attempts to cross-examine Burnett.  When Burnett was first questioned by police about a week after the murder, she denied any knowledge of the matter.  It was not until two years later, in 1998, that accusations began to fly.  First, Corby accused Burnett:  he told a DEA agent that he had been in Burnett’s apartment on the night of the murder, but that he left to visit his parole officer; when he returned, he said, Mohammed was dead.  Corby told the DEA agent that he helped dispose of the body but did not participate in the murder itself.  The DEA agent passed this information to the NYPD, who confronted Burnett (who had since moved to Philadelphia).  It was only after an NYPD detective told Burnett that Corby had accused her of the murder that Burnett “broke down” and told the detective (after being taken to a local precinct and Mirandized) that it was Corby, not she, that had committed the murder.  She also told police that Corby had threatened to kill her and her family if she spoke to authorities.  The District Attorney decided to go with Burnett’s version and charged Corby with robbery and murder.

At trial, the defense lawyer tried to do what any lawyer would do: confront Burnett with the fact that she had accused the defendant after two years and only after learning that the defendant had accused her.  Prototypical motive for bias, right?  Yet the trial court would not allow counsel to cross Burnett on the crucial issue of whether she had accused Corby only after she learned that he had accused her, reasoning that Corby’s accusation was unreliable because Corby had, according to the Second Circuit, “made it self-servingly while seeking the DEA’s help. . . .” The trial court reasoned that it was unfair to let the defense cross Burnett on this point when the prosecution could not question Corby (who was protected by the Fifth Amendment) on the same point. 

A majority of the First Department panel hearing the appeal upheld the conviction.  While recognizing “the centrality of Burnett's testimony to the People's case,” the majority found that, “the [trial] court's error, if any, was harmless beyond a reasonable doubt” because Burnett’s motive to accuse Corby, “her natural desire to deflect suspicion of complicity in the murder away from herself, and toward another — was already manifest to the jury without the precluded line of inquiry.”  Dissenting from the majority’s decision, Justice Andrias noted that the majority’s finding of harmlessness was suspect because, “such supposedly overwhelming evidence [of guilt] is primarily based upon Ms. Burnett's self-serving account of events, which provides an even stronger reason to permit the defense to question her motives for testifying against him.”  The dissent relied on the Supreme Court’s decision in Delaware v Van Arsdall, 475 U.S. 673 (1986).  That decision found that a defendant “states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”

This split continued in the New York Court of Appeals.  The majority found that defense counsel had been given “wide latitude” to cross Burnett and that, “[a]ny additional evidence of Burnett's bias or motive to lie, that would have been established by the precluded line of inquiry, would have been cumulative and of little probative value to defendant's case.”  It reasoned that “Burnett's interest in self-preservation was very apparent to the jury who found her credible.”  Justice G.B. Smith dissented.  Quoting the same language from Van Arsdall, the dissent would have held that the trial court:

prohibited defendant from engaging in appropriate cross-examination designed to show Burnett's motive for implicating defendant as Mohammed's murderer when she did (i.e., after a two-year silence and only after Detective Bourges told Burnett that defendant implicated her). As a result, the jury did not hear all of the facts necessary for it to draw all reasonable inferences regarding Burnett's reliability and credibility. . . . Moreover, in light of the fact that Burnett's testimony was the only evidence linking defendant to the crimes, there is a reasonable possibility that Supreme Court's error contributed to defendant's conviction. As such, the error is not harmless beyond a reasonable doubt.

When Corby’s habeas petition came before the district court, SDNY Magistrate Judge Kevin Fox sided with the state court majorities.  Judge Fox recommended denying the petition on the ground that the NY Court of Appeals correctly held that the cross-examination restrictions placed on Corby were imposed for legitimate reasons and that defense counsel was granted sufficient latitude during his cross-examination of Burnett.  Judge Fox concluded that the state court’s decision was not contrary to Supreme Court precedent, “which recognizes the right of a trial court to place restrictions on a litigant's ability to cross-examine a witness."  Judge Swain, however, declined to adopt Judge Fox’s recommendation.  Instead, the Court found that the NY courts had unreasonably applied applicable Supreme Court precedent:

In sum, because all inquiry into one prototypical form of bias was prohibited, the defendant's constitutional rights under the Confrontation Clause were violated. In reviewing this case, the New York Appellate Division and Court of Appeals cited the correct precedents — primarily Van Arsdall . . . and [Davis v. Alaska, 415 U.S. 308 (1974)] — but unreasonably applied that standard when they upheld the complete preclusion of questions regarding a distinct form of bias material to the jury's determination of the witness' credibility.

(Davis v. Alaska, like Van Arsdall, held that “regardless of other biases held by the witness that may have been presented to the jury, when defense counsel was prohibited from asking the witness about his probation status, the trial court violated the defendant's constitutional right to confront witnesses.”)

Judge Swain also pointed out that, following Magistrate Judge Fox’s Report and Recommendation, the Second Circuit had decided Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008).  In that case, an African-American defendant charged with robbery had been prohibited from cross-examining the victim about whether he had been fired from his job after the robbery for refusing to serve African-American patrons. As explained by Judge Swain:

The Second Circuit affirmed the district court’s decision that the state trial court had violated the defendant's Confrontation Clause rights when it barred defense counsel from cross-examining the witness regarding the witness' alleged intense racial bias. The Brinson Court held that, ‘[g]iven the intensity and extremity of the bias on which Brinson sought to examine [the witness], and the likelihood that one possessing a bias of such intensity might distort his testimony against an object of his bias on account of it, we find that it was not within a trial court's reasonable discretion to preclude this cross-examination,’ and that the state court's ruling was not a reasonable application of federal law.

In reversing Judge Swain’s decision last week, the Second Circuit primarily relied on an entirely new ground: Corby had not raised retaliation bias at trial:

At the sidebar regarding Corby’s cross-examination of Burnett, Corby’s lawyer did not argue that the sought cross-examination would be relevant to prove retaliation bias. Instead, he contended that (1) he wanted to ask about the relayed accusation against Burnett to prove that she had a motive to shift blame away from herself, and (2) he wanted the jury to know that the accusation came from Corby because in that case, Burnett’s motive to lie would be greater, as she would fear that the authorities would believe an accusation coming from someone who had witnessed the events in question. Later, Corby’s lawyer even proposed a compromise that would have foreclosed any retaliation argument: he would forgo specifying that Corby was the person who had accused Burnett if he could ask only whether some unidentified person had accused her.

This fine-parsing of the state court trial record is rare on habeas review, which appropriately focuses on whether state appellate courts reasonably applied Supreme Court precedent.  In addition, the Circuit's use of trial counsel’s “compromise” position to foreclose Corby’s habeas claim is pretty startling:  defense counsel was reacting on the fly to an adverse ruling by the trial court, not thinking about what a federal appeals court might rule more than a decade later.  

In the alternative, the Circuit held that defense counsel had sufficiently conveyed Burnett’s retaliation bias to the jury "by implication:”

[T]he plain implication of [Burnett’s testimony] was the substance of that which Corby argues he was unable to present to the jury: that Burnett believed Corby had implicated her in Mohammed’s murder when she first accused him. It therefore cannot be said that Corby was precluded from ‘expos[ing] to the jury the facts from which the jurors could appropriately draw inferences relating to the reliability of’ Burnett, specifically as to whether she accused him in retaliation for his accusation against her.” (quoting Van Arsdall, 475 U.S. at 680).

Notably, the Second Circuit did not discuss Judge Swain’s reliance on the Circuit’s 2008 Brinson decision.  True, it was not obliged to.  As noted, the question on habeas review is whether the state courts reasonably applied Supreme Court, not Second Circuit, precedent.  Indeed, Brinson was several years in the future at the time the NY Court of Appeals decided Corby’s appeal.  Nevertheless, it is strange and disappointing that the Second Circuit would not tie up this glaring loose end in a decision which has generated so much disagreement in both the state and federal courts.  While the world will probably not long weep for Mr. Corby, the Second Circuit’s resolution of this important issue is far from a satisfying one.

 

Habeas Corpus - The Good, The Bad, The Summary Reversal

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.

Habeas Corpus - Quick Items

Just a few quick items today.

First, I read a really interesting discussion from earlier this week over at Prawfsblag called "Bifurcating Habeas" about how "habeas corpus" has become splintered, at least for teaching purposes, into two separate areas: (i) review of executive detention, which would be taught in constitutional law or federalism-type courses; and (ii) review of criminal convictions, which would be taught in criminal procedure type courses.  Obviously, that split is seen in full effect on this blog, as I have only written a single post about executive detention (I believe it was during the first week of the blog).  That's because the day to day experience of review of executive detention is not relevant to 2254.  In fact, this blog slices up habeas even more by excluding 2255 -- federal review of federal criminal judgments.  As I have stated before, in most ways, 2255 is not really even "habeas corpus" review and much of it is not relevant to 2254 cases.  In any event, it's an interesting discussion and that refers to the comments as well.

Second, as a result of the Supreme Court denying cert. to a habeas petitioner who lost his petition before the Ninth Circuit, Idaho has set a date for the first execution to be carried out in that State since 1994.

Finally, on Tuesday, the New York Court of Appeals affirmed the conviction of Christopher Porco, who was convicted of killing his father and dismembering his mother with an ax.  At the time of his murder, his father was the law clerk for the presiding justice of the Third Department.  Porco had argued that there was a Crawford violation when the prosecution was allowed to submit evidence that his mother nodded affirmatively to an officer when asked at "her bedside" whether her son was responsible.  The court concluded that, even if there was a constitutional violation, the error was harmless.  Mr. Porco's attorney has stated that, if the Supreme Court denies cert., he will be filing a habeas corpus petition in federal court.  So I guess I could be writing more about this case someday.  A news report about the case is available here.

Habeas Corpus - Cert. Granted in Front-End Case

Old news, but last week the Supreme Court granted cert. in a front-end case.  The name of the case is Williams v. Illinois.  The issue is similar to the one that was just decided in Bullcoming v. New Mexico, but with a twist.  In Bullcoming, the issue was whether one expert could testify about the results of another expert.  The Court said that that is improper under the Confrontation Clause.  The issue in the new case is whether another expert can offer an independent opinion relying upon the results of a non-testifying expert (at least that appears to be the issue based on the lower court's decision).  The actual statement of the issue from the cert. petition is:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Seems kind of like a sleight of hand to me.  It still allows the non-testifying expert's testimony into evidence without the ability to confront the expert.  But, in Bullcoming, Sotomayor seemed to suggest that this may not represent a Confrontation Clause violation.  She stated, "We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence."  I guess now they are facing it.

I will, eventually, update the Supreme Court Cases page.  That's going to take some time.  I hope to get to it before the end of the summer.

Habeas Corpus - Front-End Opinion

Supreme Court issued the decision today in Bullcoming v. New Mexico and it's a victory for the criminal defendant under the Crawford rule.  Here's the holding, which I lifted from the syllabus:

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in or-der to prove a fact at a criminal trial, through the in-court testimonyof an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made thecertification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

It was a close 5-4 decision. 

Habeas Corpus - Second Circuit Opinion Reversing Grant of Habeas

The Second Circuit issued a published opinion today, reversing a grant of habeas in the case of Watson v. Greene, 10-307-pr.  The opinion was written by Lynch, ending his two-case streak of writing opinions in favor of habeas petitioners.

First, the details:

Watson v. Greene, 10-0307-pr 

• Reversing Grant of Habeas; Published Opinion by Lynch
• Argued: 12/10/10
• Panel: Lynch, Chin, CJJ, Korman, DJ
• Lower Court Info: 06-CV-2212, 2009 WL 5172874 (EDNY Dec. 30, 2009) (CBA)
• In Circuit: Habeas Grant
• Issue: Improper curtailment of cross-examination

ANALYSIS: This decision is kind of in the spirit of the current Supreme Court term -- a very restrictive view of the availability of habeas corpus relief.  The court here does rely, in part, on the Court's new highly restrictive language set forth in Richter. 

But the court focuses more on the great amount of deference that must be given to state court decisions applying "general constitutional standards."  It is not a novel concept by any means.  But it is stated here quite restrictively for habeas petitioners.  Lynch says, "Where state court decisions are guided only by general constitutional standards (as opposed to specific, bright-line rules), the “unreasonable application” standard is particularly difficult to meet, because such decisions are given a particularly generous benefit of the doubt."  I guess this is the environment for habeas petitioners right now: everything is going to be viewed as restrictively as possible.

Lynch does give one fun nugget in the opinion.  The issue centered on the trial court's curtailment of the defense's attempt to question witnesses about a note created by a police officer.  In the note, the officer wrote that someone overheard conversations among a man named Harvey and Harvey's family members in which Harvey stated that he had a gun on the night of the murder for which Watson was charged and that the gun had gone off accidentally.

Lynch says that a trial court could reasonably conclude that a jury would be confused by the hearsay evidence in the note.  However, he takes a little jab at the trial court in the process.  Before explaining that a court could conclude that it would be reasonable for a judge to conclude that a jury could be misled or distracted by the suggestion that the note was substantive evidence, he states, "it is not clear exactly what the trial court meant when it characterized the Note as a 'red herring.'"  He then drops a footnote in which he quotes the definition of "red herring" from the Oxford English Dictionary Online, presumably to show that the use of the term "red herring" was far off the mark.  I found it entertaining. 

Of course, the entire reference to the "red herring" comment was completely unnecessary.  One point that Lynch made in his earlier discussion of the broad AEDPA deference was that any old reasonable justification, even one not used by the state courts, is enough to deny relief on habeas review.  So in the new extraordinarily restrictive habeas environment, it does not really matter what anybody in state court actually said.  Nevertheless, I am happy he included the reference to the red herring comment.  It adds flavor to the opinion.

Habeas Corpus - Long Live Habeas! (At Least in the Circuits Courts)

There have been some big habeas grants coming out of the other circuits recently.  I know of three of them in the past three weeks, but there could obviously be some more. 

The most notable of these was the decision yesterday out of the Fourth Circuit in the case of Tice v. Johnson.  The petitioner is one of the "Norfolk Four".  The Norfolk Four are four men who were convicted of a brutal rape and murder in Norfolk, VA.  The convictions were based largely on confessions that the four claim were coerced and otherwise false.  A fifth man was also convicted of the rape and murder and only his DNA was found at the scene.  In his confession, he said that he acted alone.

The Fourth Circuit affirmed a district court's grant of habeas relief on the ground of IAC based on counsel's failure to move to suppress the confession on the grounds that petitioner had invoked his right to remain silent.

PBS did a documentary on the Norfolk Four called "The Confessions".  You can watch it here.  News coverage of yesterday's decision can be found here.

But that's not the only one . . .

Back in late March early April, the Seventh Circuit also granted habeas relief in two separate cases. 

In a case decided on March 31, the Seventh Circuit granted habeas relief on the ground that petitioner's confrontation rights were violated when the prosecution was allowed to admit through a detective a confession that a co-defendant made to his brother.  That's a doubly confusing sentence because it was a double hearsay problem.  The case is Jones v. Basinger.

The following day, in a separate case, the Seventh Circuit granted habeas relief on IAC grounds based on counsel's failure to follow the proper procedures in order to admit evidence that the complainant had made prior false accusations of sexual abuse against other people.  The case is Sussman v. Jenkins.

Good stuff happening in the circuits.  Didn't I recently mention that this appeared to be peak season in habeasland?

 

Habeas Corpus - Front-End Opinion

The Supreme Court issued a very disappointing decision today in Michigan v. Bryant, concluding that an on-the-scene statement was not testimonial.  Even worse, it was a 6 to 2 decision written by Sotomayor, who I thought had been showing signs that she was on the left on these issue.  The opinion is available here.

The Court interprets ongoing emergency very broadly.  It basically adopts a totality of the circumstances approach that looks at both the intent of the interrogator and the intent of the declarant to determine whether the statements were made to address an ongoing emergency or whether they were made to assist an investigation into past criminal conduct.  And the ongoing emergency here included the possibility that the shooter could cause harm to other members of the public.  Honestly, under the Court's approach, it is difficult to find when an ongoing emergency has ended, except when the perpetrator has been taken into custody.  At least, I am certain that's how lower courts will interpret it.

Scalia issued a stinging dissent that is well worth the read.  In his view, the Court had retreated from Crawford's bright-line test and replaced it with the type of test that Crawford had actually overruled: a totality-of-the-circumstances "reliability" test.  His dissent speaks to me because it puts forward many of the arguments that the New York Court of Appeals rejected in the Nieves-Andino case.*

*I discussed the Nieves-Andino case in one of my prior posts about Bryant.

But I will make one critical comment about Scalia's dissent.  He suggests that, between a declarant-based approach or a interrogator-based approach, the Confrontation Clause should take a declarant-based approach.  Of course, that makes more sense and I would agree with it.  But he has no one to blame but himself for the fact that the Court adopted such a messy intent-of-both approach. He wrote Davis v. Washington (the first case to discuss on-the-scene statements) and he could have adopted the declarant-centered approach there and ended the discussion.  Instead, SCALIA was the one who focused on this interrogator-based approach in Davis.  It's a little empty for him to say now that that approach won't work when he was the one who started it.

The impact of the decision won't be felt too intensely here in the New York state courts due to the Nieves-Andino decision.  On the other hand, there will be an impact on habeas cases as Bryant will be used to undermine any argument that prior applications of Crawford/Davis were unreasonable.

Habeas Corpus - Updates

Some readers have pointed some interesting things out to me, so I thought I'd follow up on some recent posts in a single post here.  And my new policy is that, unless a reader specifically asks me to use their name in a post (or I specifically ask him or her), I have decided just to identify reader input using the reader's initials. 

Updates:

First, reader AF pointed out to me that one of the big developments from the Michigan v. Bryant argument the other day is a potential shift to a declarant-viewpoint-centered approach under Davis.  Davis sent mixed messages in this regard.  The Davis test itself seems to suggest an intent-of-the-interrogator focus.  However, in Davis, there was a footnote that said that the ultimate decision on whether or not a statement is testimonial must focus on the substance of the statement itself, which suggests a more declarant-focused test.  Some judges seemed to indicate at oral argument that they wouldn't be against shifting the focus to the intent of the declarant in making the statement.  As AF mentioned in the e-mail, the only way for this to work, though, would be for it to be an objective test.

Second, reader AL pointed out something really amazing about the habeas grant out of Wisconsin that I posted about yesterday.  The habeas grant was issued less than three months after the petition was filed.  I have truly never seen anything like this decided that quickly.