Habeas Corpus Blog

Habeas Corpus - Related Stuff - Summary Order

Uneventful summary order from the Second Circuit today.  As promised, I have uploaded the pdf so that it can be downloaded.  I'll make a couple quick notes about the case below.

McBee v. Burge, 09-3679-pr

• Affirming Denial of Habeas
• Argument Date: 7/15/10
• Summary Order; Download Decision
• Panel: Jacobs, Parker, Hall
• Lower Court Info: 05-CV-4752, 2009 WL 2196768 (EDNY July 24, 2009) (DLI) (LB)
• In Circuit: District Court COA
• Issues: Harmless error as to Confrontation Clause violation

NOTES: This case was argued back in July.  Seems like an awfully long time for a pretty straightforward, three-page summary order.  Wonder why it took so long.

Also, it should be noted that the DJ, MJ and state court all concluded that there was a Confrontation Clause violation.  However, in kind of an annoying "kick-'em-when-they're-down-moment," the Second Circuit only "assume[s] without deciding" that there was a constitutional violation.

Habeas Corpus - Michigan v. Bryant Transcript

The transcript from the oral argument in Michigan v. Bryant is available here.

After reading through it, my biggest fear is a plurality opinion.  Kagan has recused herself.  From the oral argument, I can see three on one side (Scalia, Ginsburg, Sotomayor) in favor of the defendant and three on the other (Alito, Kennedy and Breyer) in favor of the State.  I worry that Thomas will side with the State, but do it on his own ground, namely that this wasn't some type of formal, deposition-type interrogation.  But that won't further the cause of how to interpret the Crawford/Davis rule.  So that means that no matter which way Roberts goes, it will only be a plurality in either direction on how to interpret the rule.  This troubles me.  I guess this is a real concern in a lot of the cases this term.

Anyways, the highlight for me from the argument occurred during the argument of the Acting Deputy Solicitor General.  She made a broad claim that, basically, any time there is a violent crime there will be an ongoing emergency if the assailant has not been caught.  Scalia's stern response was: "That's always the case. That's such a phony evasion of what the purpose of a testimonial rule is. That's always going to be the case, at least when there is a violent crime."

I will say this, though.  These on-the-scene statements really do stretch the Crawford/Davis "ongoing emergency" rule to a near breaking point.  It is very difficult to distinguish between questions seeking to assess the state of the scene to determine whether there is an ongoing emergency vs. questions seeking to obtain historical information.  Even the rule's biggest fan, Scalia, seemed to struggle with this during the argument.  Where do you draw the line?  The questions that will be asked are nearly identical in either situation.  It almost seems like the whole analysis has to be done retroactively -- if the information given to the officer shows that there was no emergency, then testimonial.  But if the information shows that there is a continuing and immediate threat, then not testimonial. 

Maybe the focus should be on how a reasonable officer would respond to the information.  Would that work?  Would that somehow be better?  I really don't know.  And I don't know if that logic has any basis in Crawford.  I am just trying to find a way out here. 

Habeas Corpus - Michigan v. Bryant

On Tuesday, the Supreme Court will hear argument in Michigan v. Bryant.  The issue in the case is whether the use of an injured victim’s out-of-court statement made to police at the crime scene violates the Sixth Amendment under Crawford v. Washington.

SCOTUSblog's preview of the case can be found here.

I usually don't talk about my own cases around here for various different reasons.  But, in this instance, I feel that I can't really avoid it.  I argued this exact same issue before the New York Court of Appeals in a case called People v. Juan Nieves-Andino, 9 N.Y.3d 12 (2007).  I lost that case 4 to 3.  I remember that I told the law journal that I found some "solace" in the split decision.  Almost immediately after I said it, I regretted it.  My personal feelings are really irrelevant in such a situation.  Of course that quote ended up in the article about the case.

But I am very familiar with the issue, so I kind of have a strong opinion about it.  In my mind, this issue boils down to this: how much is the Supreme Court willing to stand behind its decision in Davis v. Washington?  That is the case that interpreted Crawford as it applies to on-the-scene statements.  The rule from that case is that an on-the scene statement is not testimonial if it was "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."

Based on the way the rule was applied in Davis and the policy reasons underlying Crawford, I believe that the only way to logically read the rule is to hold that statements taken from victims at the scene of the crime, once it is clear that the immediate danger to the victim has subsided, have to be considered testimonial.    

Certainly, it is inconvenient for law enforcement if the rule is read this way.  By the time the police arrive in most situations, the immediate danger to the victim will have subsided.  And where the victim later dies, the statements that were obtained are almost always lost forever.  But the Court has instituted a formulaic approach to the Confrontation Clause and, when these facts are plugged into the formula, this is the result.

Now, if the Court agrees with me and goes in this direction (there is absolutely no guarantee of that as they could easily decide that an "ongoing emergency" is a much broader term; but if they do . . .), then Bryant could end up having a huge impact. 

I am very curious to see what happens at the oral argument.

Habeas Corpus - Habeas Grant

As mentioned yesterday, the New York Law Journal reports today that a SDNY DJ has granted habeas in the case of Whitley v. Ercole, 06 Civ. 10198.  Here's the provocative headline: "Conviction Upset Ruling Reveals Complications for D.A. in Retrial."  The article, for once, is available online here.

And here are some of the opening paragraphs:

A federal judge's decision to overturn an eight-year-old conviction for the high-profile murder of a Manhattan doctor that occurred 29 years ago has presented Manhattan District Attorney Cyrus Vance, Jr. with a difficult choice.

*   *   *

On Thursday, Southern District Judge Alvin K. Hellerstein granted Mr. Whitley's petition for a writ of habeas corpus, finding that the trial court had made an error of constitutional dimension when it allowed the recanted testimony of the chief witness against Mr. Whitley to be read, without cross examination, to the jury that convicted him of the Wood murder in 2002.

The article then describes what makes a retrial so difficult for the prosecution:

[A] retrial would require the rehabilitation of an unreliable cooperating witness who was promised leniency on a long prison sentence, testified against Mr. Whitley at his first trial in 1998 that ended in a mistrial, and later claimed he could not remember a key statement he had made to the lead detective in the case and took the Fifth Amendment.

Of course, the prosecution also has the option of going to the Second Circuit, which I assume they will.

Petitioner was represented by pro bono counsel Barry R. Ostrager of Simpson Thacher & Bartlett, along with associates Juan Arteaga and Chantale Fiebig.

Here's what Mr. Ostrager had to say about the case:

"I always believed in the case and I think the factual recital and the marshalling of the law in Judge Hellerstein's opinion makes it abundantly clear that Darryl Whitley didn't get a fair trial," Mr. Ostrager said Friday. "It frankly always disturbed me that the prosecution in this case proceeded as it did. I felt it was an honor to effectively represent Mr. Whitley."