Fields got out of prison in 1978, after having gotten off with manslaughter for his previous killing. According to the California Supreme Court opinion by Justice Allen Broussard, "he became a one-man crime wave." (Justice Broussard was one of the more defense-oriented members of a heavily defense-oriented court in 1983. This was one of the few cases where he voted to uphold a death sentence.) By the time it was over, he had robbed and murdered one woman, committed numerous sex crimes and robbery against three others, and robbed a man and carjacked his car. There was no serious dispute that he committed these acts. As described by Justice Broussard, "Defendant, after presenting no defense of significance at the guilt phase of the trial, offered a defense of insanity. He presented evidence that he had an 'antisocial personality' which, he claimed, constituted a form of insanity...." 35 Cal.3d, at 368.

When the defense side opposes reform of federal habeas, they often claim that the delays in federal court are all the states' fault. If the states only provided quality counsel and adequate process in state habeas, they say, these cases would slide right on through federal habeas. The Fields case demonstrates conclusively that is not true. After affirmance on direct appeal, Fields's case spent another seven years in state habeas. He was represented by Michael Millman and Eric Multhaup, very experienced and qualified counsel. He had an evidentiary hearing and a full review of his case by the California Supreme Court. Justice Broussard wrote the opinion again, and this time it was unanimous. See In re Fields, 51 Cal.3d 1063, 800 P.2d 862 (1990). From there, this already thoroughly litigated case should have moved swiftly through the "secondary and limited" review of federal habeas, see Barefoot v. Estelle, 463 U.S. 880, 887 (1983), right? Wrong.

First, the federal case was stayed for an "exhaustion petition." Despite the fact that the California Supreme Court had already reviewed this case in two published opinions, habeas counsel went back with yet another state habeas petition to exhaust yet more claims. This is a common procedure in California. The California Supreme Court held that all but two of these claims had either been decided already or were barred by the state rule established in 1953 that claims that could have been raised on appeal and were not are barred from state habeas.

Not surprisingly, the Federal District Court held in 1994 that many of Fields's claims were defaulted. The Ninth Circuit reversed. Even though it had been established over 40 years earlier, the California rule was not "adequate," they said. The state courts had committed the sin of making too many exceptions. The state had not set any trap for the defendant. The rule was established, and defendants have clear notice of what they need to do and how to do it. That was not enough for the Ninth. Unless they can look over the state courts' shoulders and supervise how they dispense exceptions to procedural rules, the rules are "inadequate." Better to have a rigid rule with no exceptions. So this drags the case out to 1998, eight years after the California Supreme Court's second review of the case.

So then there is a District Court decision, an appeal and remand, an evidentiary hearing, a new appeal, a panel decision, and finally today's en banc decision. And what is this all about? Is it about conviction of someone for acts he did not commit? No. Is it about conviction despite a mental illness that reasonable people would say absolves him of moral guilt? No. Is it about a penalty not authorized in law for the crime committed? No. Is it about a penalty that is an "outlier," clearly outside the norm for the crime committed, even if within the legal range? No. Substantively, this is a well-deserved punishment for a crime of which the defendant is clearly guilty.

How about procedure, then? Is this a case of some egregious abuse that every fair-minded person would instantly condemn? Was there a lynch mob surrounding the courthouse, a confession beaten out of the defendant, an illiterate layman forced to go without counsel against a professional prosecutor, or a judge with a financial interest in conviction? No, none of those things, and nothing like any of those things.

One issue involves a juror who was asked on voir dire about crimes committed against his family. He said his wife had been robbed, beaten, and assaulted. He didn't volunteer that it was a sexual assault, and nobody asked him. The other issue involved a juror who made up a list of pros and cons and included some Biblical references in the pros.

With regard to the juror and his Biblical notes, this is a far different issue than attorneys invoking religious law in oral argument. That is a clear rule directed to people who should know better. I would have no problem with a standing order that any lawyer on either side who invokes the Bible in argument will be immediately hauled off to jail in mid-sentence. Jurors are different. They are constitutionally required to make a moral judgment, the Supreme Court tells us, and for many people morality and religion are inseparable. For them, telling them to make a moral decision without using religion is like telling them to solve an algebraic problem without using math. So long as we have juries making these decisions and so long as the decision is moral and not objective, religious views will inevitably enter the picture. Whether there is documentary evidence as in this case is pretty much a random occurrence, and we should not affirm or reverse sentences at random any more than we should impose them at random.

These are not frivolous issues. They are arguable either way. But do they really deserve the protracted litigation stretching over so many years that they received? I can't see how, particularly in a case where the substantive verdict and judgment are not a miscarriage of justice by any stretch of the imagination.

These are the kinds of claims for which one bite at the apple is sufficient. Whether they were rejected on the merits by the state court or denied because they were defaulted (the published opinions aren't clear which), they should not even be considered over again by the federal court. That drastic step should be reserved for issues with a direct, substantial connection to the reliability of the guilt verdict or at least the eligibility of the defendant for the punishment.

Even under the limited reforms of the Supreme Court's pre-AEDPA case law, though, this case should have gone much faster than it did. The California procedural law should have been respected, and any claim not made on the appeal or first state habeas should have been barred. If either of the above claims was not defaulted, it was barred by the rule of Teague v. Lane, 489 U.S. 288 (1989), as the defendant's position was not dictated by precedent. This case should have been over thirteen years ago.