Habeas Corpus Blog

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 - Wednesday's Transcripts

The transcript in Gonzalez is available here.  And the one in Perry is available here.

Unfortunately, I haven't yet had a chance to read either.  But I did read through SCOTUSblog's review of the Perry argument and the New York Times article on the argument.  Wow.  Just wow.  I was skeptical that the Court would take the identification issues seriously, but I had no idea it would be that bad.  Beyond not really even caring much about the new research on the unreliability of eyewitness identifications, it appears as if some of the judges would like to cut back on the current safeguards. 

The logic seems to be that jurys are capable of sifting through all the factors that could potentially lead to an unreliable identification.  But that's precisely the point.  The research has shown that jurys believe eyewitness identification despite all of the reasons not to.  And that has led to more and more wrongful convictions. 

It's all so troubling.  Society's view on these matters seems to be going in one direction while the Supreme Court seems to be going in the other.  What's sad is that the Court used to lead on matters of fairness in the criminal justice system.  Now, it seems completely out of touch with the acknowledged problems facing the system.  It's a disturbing disjunction.

As for Gonzalez, from the SCOTUSblog review, it looks like the Court intends to focus on the COA issue and a majority of the Court does not seem ready to conclude that it is a jurisdictional requirement.  In other words, these judges seem to believe that a defect in a COA order can be cured.  As I said before, I just find the whole thing a little nutty.

 

Habeas Corpus - Gonzalez & Perry - Reminder

Just as a reminder, the Supreme Court will be hearing oral argument today in the habeas case of Gonzalez v. Thaler and the front-end case of Perry v. New Hampshire.

The issues in Gonzalez are: (1) was the order granting a COA sufficient; and (2) for the one-year statute of limitations, what date is used to determine the end of review in state court.

The issue in Perry is: does a non-police-arranged unduly suggestive identification procedure require suppression of an in-court identification?

For more on Gonzalez, see here.

For more on Perry, see here.

Habeas Corpus - Perry v. New Hampshire - 11/2

Tomorrow, the Supreme Court will hear argument in the front-end case of Perry v. New Hampshire.  Here's the issue:

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?

While I haven't been covering this case too much, it has been getting a lot of attention around the internet.  And a lot of that is focusing on the unreliability of eyewitness identification evidence.  As the New Jersey Supreme Court recently concluded in its seminal case of State v. Henderson, this clearly is a factor that can impact upon the reliability of eyewitness evidence and it should be considered both at the suppression hearing and at trial.

However, I am not expecting the Supreme Court to issue a broad ruling discussing in general the unreliability of eyewitness evidence.  In fact, I am not even sure that a majority of this Court is particularly concerned about the growing body of work showing that eyewitness identification evidence is exceedingly unreliable.  So I am setting my expectations low with the potential that I will be pleasantly surprised.

And should that surprise occur, I will let Alex Satanovsky offer up one goodie and one question (with some editing):

1.  It seems to me that, under Teague, a favorable ruling in Perry would be exactly the kind of rare case that would qualify for retroactive application on collateral review.  It would be "watershed" new rule in criminal procedure, and it would be based squarely upon concerns for the truthfinding process.  As of yet, no such "new rule" has ever been made retroactive under this framework.  (In Wharton v. Bocking, a unanimous court struck down Ninth Circuit's retroactive application of the Crawford confrontation clause rule, holding that the departure from Roberts was not essential to the truthfinding process, thus not warranting for retroactive review).  But Perry could be different.  If Perry wins, it will be precisely because the unreliability is so perverse, so damning to truth-seeking, that the previous "state action requirement" necessary to suppress an unduly suggestive identification was simply gloss.   A whole lot of inmates would (rightfully) see this as an opening to reassert their factual innocence -- in a way that is qualitatively different than the previous situations where a defendant had argued that there had been a "watershed" rule -- (I'm thinking Crawford, Gant, JEB v. NC, . .. )

2.  But what about on habeas review?  The AEDPA only allows for retroactive application of rules that are "made retroactive" by the Supreme Court.  Is this supposed to incorporate-by-reference the Teague rule for the rare/watershed case, or does it supercede Teague, effecitvely requiring the Supreme Court to expressly announce --  "this new rule shall be retroactive"?

Anyway, I think the answer is not clear, and should be worth seeing whether this issue pops up in the background of the oral argument.

Thanks again, Alex.

Habeas Corpus - Summary Order

The Second Circuit issued a summary order today in Conner v. Poole.  Pretty straightforward order as the court goes right to the merits of the claim, a due process claim based on a suggestive identification.  It's fact-intensive and the court concludes that, even if there was a suggestive identification procedure, there was an independent basis for the identification.

The details:

Conner v. Poole, 10-1369-pr, 10-2060-pr, 11-1865-pr 

• Affirming Denial of Habeas
• Argued: 10/3/11; Decided 10/12/11; Summary Order
• Panel: Sack, Raggi, Eaton, USCIT
• Lower Ct. Info: 07-CV-6230, 2010 WL 1404671 (WDNY Mar. 30, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: whether petitioner was deprived of due process when an eyewitness was allowed to identify petitioner in court despite a pre-trial suggestive identification procedure

Habeas Corpus - Interesting Summary Order

Summary order from the Second Circuit today.  It was in Bennett v. Miller, 09-3471-pr. The order is here.

The court concluded that there were two constitutional errors -- improper admission of an impermissibly suggestive identification and prosecutorial misconduct based on the prosecutor's repeated reference to false evidence.  Disappointingly, the court concludes that both errors were harmless.  Rather than give my own analysis, I am just going to cut and paste the court's analysis on the identification issue after I give the details.  The court did not go into too much analysis about the prosecutorial misconduct, other than calling it "egregious."

Bennett v. Miller, 09-3471-pr  [updated 3/04/11]   

• Affirming Denial of Habeas
• Argued: 3/2/11; Decided: 4/1/11 (summary order)
• Panel: Jacobs, Leval, Raggi
• Lower Ct. Info: 06-CV-1488 (EDNY Aug. 4, 2009) (SLT) (unpublished)
• Issues: (1) whether the admission of eyewitness identification evidence was impermissibly suggestive or unreliable to consitute a due process violation; (2) whether the prosecutor's misconduct in summation in which the prosecutor misstated the evidence, deprived petitioner of a fair trial

Impermissible suggestive identification evidence:

The circumstances surrounding Ellis’s identification were extremely suggestive. Ellis never identified Bennett prior to trial; he twice failed to make an in-court identification while on the stand; and only after he watched from the galley when the prosecutor identified Bennett as the shooter did Ellis undertake to make an in-court identification. These circumstances made it “all but inevitable that [Ellis] would identify [Bennett].” Foster v. California, 394 U.S. 440, 443 (1969).

“[R]eliability is the linchpin in determining the admissibility of identification testimony,” Manson, 432 U.S. at 114; even an unduly suggestive identification may satisfy due process if it was nevertheless reliable. The reliability factors in Biggers guide the inquiry, see Biggers, 409 U.S. at 199-200, even though they are not the only hallmarks of due process, see Brisco v. Ercole, 565 F.3d 80, 94 (2d Cir. 2009). As a bouncer, Ellis had a good vantage point and a duty to be attentive; but these factors are outweighed by [1] the vague description of the young men he gave to officers on the night of the shooting, [2] the one-year gap between the shooting and the identification he made at trial, [3] his inability to make an identification during his first appearance on the stand, and [4] the “corrupting effect of the suggestive identification itself.” Manson, 432 U.S. at 114.

 

Habeas Corpus - District Court Review - Habeas Granted!

As I mentioned in my last District Court Review post, an MJ out in WDNY has issued three habeas grants so far in 2011.  This is number 3.  It's an enjoyable read as the MJ not only finds that the state court decisions were unreasonable, but points out that the Court of Appeals completely whiffed on the Wade issue.

Young v. Conway

• Habeas Granted
• Lower Ct. Info: 07-CV-6047, 2011 WL 240578 (WDNY Jan. 27, 2011)
• Issue: Improper admission of tainted identification evidence
• Notes: parties consent to proceed before MJ; pro se petitioner

ANALYSIS: This was a home-invasion robbery.  Two people were in the house at the time, Mr. and Mrs. Sykes.  One of the robbers,who was later identified as petitioner, was wearing a scarf that covered the bottom half of his face.  Mr. Sykes was never able to identify as this particular robber.  After the robbery, Mrs. Sykes told the police that she would not be able to assist them in creating a sketch since she did not see the entire face.  She later viewed a photo array containing petitioner but did not identify him as the robber.  At a lineup, she identified petitioner as the robber.

On appeal, the Appellate Division reversed the conviction.  It held that the lineup was the fruit of an unlawful arrest and should have been suppressed.  It ordered an independent source hearing (a hearing at which the prosecution would attempt to show that the victim's in-court testimony had a source independent of the illegal, suppressed lineup identification).

At the hearing, Mrs. Sykes stated that her independent source was the long time that she stared at the perpetrator's eyes during the robbery.  The trial court concluded that there was an independent source.  Later on appeal, a three-judge majority upheld that conclusion, but a two-judge dissent believed that there was no independent source.  The Court of Appeals accepted review of the case, but declined to address the merits of this question, stating that it was a question of fact, which it was not authorized to review.  In dissent, one judge did address the merits and stated that there was no independent source.

On habeas review, the MJ states that Wade is the controlling law.  Where there has been an illegal lineup, in-court identification testimony is only admissible where the in-court testimony is not an exploitation of the illegality but, instead, is based on means sufficiently distinguisable to be purged of the primary taint.

Here's where the MJ points out a flaw in the Court of Appeals decision.  According to the MJ, the Supreme Court in Wade stated that this conclusion is a mixed question of law and fact.  He points out that the Court of Appeals was incorrect in deferring to the Appellate Division on this question.  However, due to the Court of Appeals failure to address the issue, the MJ stated that he had to look at the Appellate Division's decision to see if that decision was unreasonable.

He concluded that it was.  The MJ analyzes the Wade factors -- opportunity to view, discrepancy between pre-lineup descriptions and defendant's description, did the witness identify anyone else as the perpetrator, did the witness identify the defendant from photographs, the eyewitness failed to identify defendant on prior occassion, and lapse of time between incident and identification -- and concludes that they weigh heavily in favor of petitioner.  He states that the state court acted unreasonably in concluding otherwise.  Further, the error was not harmless.

In fact, the MJ believed that the error was so crucial to the case that, in the remedy section, it BARRED the prosecution from retrying petitioner on the charges.  According to the MJ, without the identification, there was not legally sufficient evidence to support the conviction.  That's a pretty big step.

Of course, the impact of that is minimized in one crucial way.  Petitioner received a persistent felony offender sentence in this case.  That sentence is now vacated.  However, this sentence was running consecutively to another persistent sentence imposed in a separate case.  Thus, petitioner will still have to serve a maximum term of life.  But there remains an advantage to petitioner (as far as I can tell) -- he should now be eligible for parole a tad earlier.

Habeas Corpus - Habeas Grant Reversed - Updated Link

Second Circuit reverses another habeas grant, and, just like the last time this happened (in Gueits back in July), questions of petitioner's innocence hang over the case.

Here are the details:

Richardson v. Superintendent Mid-Orange Correctional Facility, 09-3655-pr

• Reversing Habeas Grant (opinion here)
• Argued: 3/11/10; Decided: 9/20/10
• Panel: Jacobs, Lynch, Restani, USCIT
• Lower Ct Info: 03-CV-2061, 2009 WL 2358619 (EDNY Aug. 3, 2009) (SJ)
• Issue: Unduly suggestive identification procedure

Here is the analysis:

The DJ concluded that two stationhouse show up ID's were suggestive and unreliable.  The Second Circuit concludes otherwise.  First, the Second Circuit concludes that one claim was procedurally barred from review.  As for the second, the court believes that it wasn't suggestive, and wasn't unreliable.

But the more interesting part about it is this: the Second Circuit does express a concern about whether petitioner is innocent.  The court stated, "Like the district court, we are concerned by the possibility that Richardson was an innocent bystander and that [the eyewitness] misidentified Richardson as a shooter based on a subconscious but inaccurate mental association between Richardson, who was present on the scene, and the young, short perpetrator." 

That's a strong statement.  But the result ends up like Gueits, not like the extraordinary one in Friedman.  The court basically says, "oh well, there's nothing we can do."  It points out that, in their mind, any possible mistake in the identification evidence was a "result of his inaccurate mental association" rather than any suggestiveness in the showups.  Although the court did not put it this way, what they are really saying is that the jury had a chance to consider whether the identification was inaccurate and rejected it.  On habeas review, the Second Circuit won't revisit that question.

A disappointing result for a petitioner who seems to have a legitimate claim to innocence.

Habeas Corpus - Wrongful Convictions

"State Bar Explores Ways to Curb Wrongful Convictions" is an article today in the subscription only New York Law Journal.

It's not directly habeas-related, but close enough.  Plenty of federal judges over the years have concluded on habeas review that there had been a "wrongful conviction" (for example, see my post on Judge Chin and also my discussion of the movie Hurricane). 

Here's the lede paragraph of today's article:

Manhattan District Attorney Cyrus R. Vance said yesterday he intends to use a New York State Bar Association report on wrongful convictions and the work of other outside groups to help develop an office in which the chances are minimized that innocent defendants will be arrested, prosecuted and convicted.

To note, the article states that mistaken identifications were found to be the leading cause of wrongful convictions. 

And I love this stuff from former US Atty Zachary Carter:

Mr. Carter in part faulted the culture within the prosecutors' offices for breeding what he said is a rush to judgment by prosecutors against some defendants, even if facts point to their innocence.

The rest of the article is worth reading, if you have the access.  Let's hope that DA Vance is sincere about these promises.

Habeas Corpus - Summary Order

Lockhart v. Brown, 08-3191-pr, Nov. 13, 2009, Parker, Hall, Lynch, order here.

• Affirming Denial of Habeas
• Issues: Suggestiveness of Identification Procedure
• Notes: No analysis of the specific claim; court affirms for substantially the same reasons as stated by the district court in denying habeas.