Habeas Corpus Blog

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 - 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 - Front-End Argument

Kind of snuck up on me, but tomorrow (Wednesday) the Supreme Court will hear argument in Bullcoming v. New Mexico.

The issue is whether defendant's Confrontation Clause rights were violated where the person who recorded the results of a blood alcohol test was not called as a witness at defendant's trial. 

SCOTUSblog's preview is here.  For even more, see the soon-to-be-renamed* Pending Supreme Court Cases page.  I have also noticed that the argument date changed, or I had it wrong originally.  That's been corrected.

*I am going to rename it because I have decided to simply track the current term's cases, which includes the ultimate decision.  So not all cases on the page are still pending.  I just haven't come up with an appropriate name yet.  But, surprisingly, there are some tricky logistics involved with the name change.  Or else I just haven't quite figured out how to completely position everything on the blog.

Interesting timing, coming on the heels of yesterday's disappointing decision in Bryant that cut Crawford/Davis off at the knees, at least with regard to the on-the-scene statements.

Let's see if the Court makes it a two-fer and comes up with some totality of the circumstances test for determining whether someone can reliably testify on behalf of someone else. 

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 - 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 - Published Opinion in Habeas Case

Yesterday, the Second Circuit issued a lengthy published opinion in a habeas case.  The name of the case is Bierenbaum v. Graham, 08-1375-pr.  The opinion can be found here.

In a majority opinion written by Vermont District Judge William K. Sessions III, the Second Circuit affirmed the denial of a habeas petition that advanced an IAC and a Confrontation Clause claim.  There was also a brief, and very interesting, concurrence from Judge Calabresi. 

The facts of the case are pretty interesting.  In 1985, the petitioner's wife disappeared.  Fourteen years later, petitioner was indicted for her murder and eventually convicted based on numerous out-of-court statements that the wife made to others.  In these statements, she said that she had a fear of his temper, he was controlling, he threatened her and that he had choked her to the point of unconsciousness on one occasion.  She also said that she had received a letter from petitioner's therapist warning her that petitioner was a danger to her.

The opinion noted other evidence.  Petitioner had a pilot license and rented a plane on the date of his wife's disappearance.  Witnesses said that they had seen petitioner carry big duffel bags on occasion.  During the investigation, a detective went up in a plane and, using three different techniques, was able to throw a duffel bag weighing about the same as the wife outside the plane while flying.  This was videotaped and shown to the jury.

In addition, Bierenbaum made some inconsistent statements to the police and other people.

The wife's body was never found.

The defense presented one witness who said that he saw Katz on the street after the date of the alleged murder.

Petitioner argued that he admission of the hearsay violated his right to confront witnesses and his counsel was ineffective in nine different ways.

The Second Circuit rejected the claims, finding that the admission of the statements did not violate the Confrontation Clause under the pre-Crawford standards.

As for ineffectiveness, the Second Circuit addresses each claim individually.  Some are stronger than others -- such as defense counsel conceding a crucial part of the People's theory and failing to call certain favorable witnesses.  But the court concludes that the claims, neither individually or collectively, established that counsel was ineffective.

Now, on to the interesting concurring opinion.  It's very short.  Because it is so short, I am just going to quote it in its entirety:

I join Judge Session's opinion fully because I believe it to be correct on the law.  I add a few words because this case troubles me.  I believe the representation given to Appellant by his trial counsel left a lot to be desired, though, for the reasons stated in Judge Session's opinion, it does not ultimately amount to constitutionally inadequate representation.  I also believe that the evidence of guilty is very thin.  The sufficiency of the evidence, however, is not before us.  All this means that the decision of the district court is properly affirmed.

Certainly is interesting.  But, in the end, doesn't amount to much for petitioner.

Habeas Corpus - Sticking with the Supreme Court . . .

This morning the Supreme Court granted cert. in a front-end criminal case presenting a Crawford issue of critical importance:

whether an on-the-scene inquiry of a wounded citizen concerning the perpetrator and the circumstances of the crime are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency”?

The name of the case is Michigan v. Bryant.  SCOTUSblog has more information here.

I have had an issue like this and it's a tricky little question.  I lost my case in the worst possible way with the court adopting the broadest interpretation of "ongoing emergency" that allows in pretty much every one of these initial inquiries. But in Crawford cases, the Supreme Court is one of the most defendant-friendly courts, so I am hoping that it comes out differently.

Habeas Corpus - Front End Case

So much for all the doomsday talk about the Court limiting Melendez-Diaz. . .

After full briefing and oral argument, the Court today issued a unanimous per curiam that remands Briscoe v. Virginia for further proceedings not inconsistent with Melendez-Diaz.  A lot of time and energy for what essentially is a GVR.*

*Grant, Vacate, Remand in a summary disposition 

Now let's see if Melendez-Diaz has any impact.  I have previously posted about the potential impact here.

Habeas Corpus - What to make of Briscoe

As I mentioned at the end of my last post, I wanted to quickly touch on the Supreme Court's cert. grant in Briscoe v. Virginia.  And, as I did in my last post, I am going to rely on Legal Aid's Andy Fine's insights to provide some analysis.

Less than a week after the Supreme Court decided the potentially far-reaching decision in Melendez-Diaz, the Court granted cert. in Briscoe.  What was so crazy about this was that Briscoe raised a Crawford issue very similar to the one present in Melendez-Diaz.  SCOTUSblog stated that the issue in Briscoe, as stated in the cert. peition, is “If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?” 

As Andy mentioned in the email quoted in the last post, there was immediate speculation that the cert. grant in Briscoe was done in an attempt to limit the scope of Melendez-Diaz.  Underlying this speculation was the thought that Sotomayor may end up being to the right of Souter on criminal justice matters, so she could side with the dissenters from Melendez-Diaz.

I read somewhere that it is not completely unprecedented, but still exceedingly rare, for a cert. grant to follow a fresh opinion on nearly the same issue. 

I have always been confused by the cert. grant in Briscoe.  And I am especially confused about the speculation that Sotomayor may side with the dissenters.

So, in response to Andy's last e-mail, I wrote to him:

I am still really confused by the Briscoe grant. Assuming that the dissenters were the ones who voted for cert. and assuming that this was on the belief that Sotomayor would vote with them, I think that their strategy will fail. Even though I think Sotomayor will be to the right of Souter on criminal issues, I don't think her judicial philosophy will be so advanced in her first year on the bench that she will be willing to vote to restrict (or even overturn) such a recent holding. Her current judicial philosophy (as she reinforced in her opening statement yesterday) is to be faithful to the law. Additionally, doesn't a new judge often vote almost identically to an already sitting judge? If so, then which of the dissenters will she mimic? Kennedy? I highly doubt that. It will more likely be Breyer or (hopefully) Ginsburg or Stevens.

Put simply, I don't think Sotomayor will shake things up that quickly and her voting pattern, at least during her first year, will be very similar to one of the members of the majority of M-D.

Andy responded that a prior Sotomayor opinion shows that she seems very comfortable reaffirming the holding of Melendez-Diaz.  He wrote:

I'm also heartened by these aspects of Sotomayor's opinion in US v. Saget, 377 F3d 223:

 

     "Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant's awareness or expectation that his or her statements may later be used at a trial. The opinion lists several formulations*229 of the types of statements that are included in the core class of testimonial statements, such as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at ----, 124 S.Ct. at 1364 (internal quotation marks omitted). All of these definitions provide that the statement must be such that the declarant reasonably expects that the statement might be used in future judicial proceedings.FN2 See id. Although the Court did not adopt any one of these formulations, its statement that “[t]hese formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it” suggests that the Court would use the reasonable expectation of the declarant as the anchor of a more concrete definition of testimony. See also id. at 1365 n. 4 (noting that declarant's testimonial statement was knowingly given to investigators)."

"FN2. Although one of the formulations, taken from Justice Thomas's concurrence in White, 502 U.S. at 365, 112 S.Ct. 736, does not explicitly require that the statement have been made with the reasonable expectation that it would be used at a later trial, Justice Thomas's definition of testimonial statements appears to be narrower than that contemplated by Crawford, as it includes only “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id. By definition, a declarant who gives a statement in one of the formalized contexts cited by Justice Thomas must reasonably expect that his or her statement could be used in future proceedings. This definition is, as Crawford notes, consistent with the other two formulations, which are explicitly conditioned on the reasonable expectation of the declarant. See Crawford, 541 U.S. at ----, 124 S.Ct. at 1364."

Me again: What's nice about the footnote is that not only does she seem to be in tune with the holding of Melendez-Diaz, she also seems to disagree with Thomas's concurring opinion in Melendez-Diaz in which he tried to limit the holding.  So it would certainly seem that Sotomayor will not be lending a hand to those trying to limit Melendez-Diaz in Briscoe.