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Getsy: They Still Don't Get It

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Unbelievable. That is the only word to describe the dissent in Getsy v. Mitchell, noted in yesterday's News Scan. After all that has happened in the law of habeas corpus over the last two decades, some federal judges still don’t get it.

Habeas corpus is not an appeal from the state courts to the federal courts. Both Congress and the Supreme Court have told the lower federal courts this many times. A federal district court is not authorized to set aside the considered judgment of a state court on a collateral attack merely because the federal court would have decided the issue differently if that issue had come before them in a federal criminal case. The Supreme Court held in 1989 in Teague v. Lane that federal courts cannot create new rules on habeas corpus and that a new rule is any rule not “dictated by precedent.” Further, Congress enacted in 1996 that a state court decision on the merits of a question of federal law cannot be overturned on habeas unless the contrary rule was clearly established by Supreme Court precedent, not circuit precedent.

Applying these two rules, the Supreme Court said in Caspari v. Bohlen in 1994 and Carey v. Musladin just this last term that a federal court must survey what other courts have decided on the issue. If that survey shows that most courts agree with the state court decision, then the contrary rule will rarely, if ever, be dictated by precedent or clearly established.

The Getsy case involves a claim that a defendant cannot be convicted of a capital offense and sentenced to death when the instigator of a murder-for-hire scheme is convicted in a separate trial of a charge not subject to the death penalty. A jury in a separate trial may find that the proof does not reach the “beyond a reasonable doubt” standard for a number of reasons, foremost of which is that evidence admissible in one trial, such as a defendant’s confession, may not be admissible in the other.

Our brief in the Getsy case does the survey that the Supreme Court says is required and finds that the federal circuits which have addressed the specific question have uniformly decided against Getsy’s argument. The majority in Getsy does the same. These other courts understand the Supreme Court’s 1984 decision in United States v. Powell to preclude the existence of a rule of consistency. The majority opinion agrees.

Judge Merritt in dissent calls this interpretation “specious” and “legal legerdemain.” And what does he say about all the decisions of the other circuits adopting the same interpretation? Nothing. What does he do about the survey of the legal landscape the Supreme Court has repeatedly said is required? Nothing. He just completely ignores contrary decisions on the specific question and ignores the Supreme Court precedent requiring that those decisions be considered.

What is particularly disheartening is that five other judges joined this outright defiance of controlling law. Eleven years after AEDPA and 18 years after Teague, we still have federal judges who refuse to obey them. Respect for the law is the only thing that gives judicial decisions force in our society. When the judges themselves refuse to obey laws they do not like, the whole foundation of the judiciary is eroded.

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The Supreme Court is partially to blame for this state of affairs. It's not like the Supreme Court has followed AEDPA at all times either, as some of the Texas cases demonstrate this year.

And let's not forget that Judge Merritt is the lawless judge who granted the last minute stay after hearing a motion in his own house.

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