The U.S. Supreme Court has once again reversed the Court of Appeals for the Ninth Circuit for overturning on habeas corpus a state court decision that is within the zone of reasonable disagreement, despite an act of Congress almost 13 years ago forbidding it from doing so. The case of Waddington v. Sarausad involves one of those murky problems of accomplice liability and exactly what intent an accomplice must have to be held liable for an act which he assisted but did not personally commit. In this case, Sarausad was the driver in a driveby shooting by one gang against a rival gang. Under all the circumstances of the evidence, instruction, and argument, the case was fairly close on the merits. The whole point of AEDPA's deference requirement, 28 U.S.C. ยง 2254(d)(1), is that cases close on the merits should be easy on federal habeas. In a close case, a decision either way is clearly not clearly wrong, and the drastic remedy of collateral attack on a final judgment is not warranted. The Ninth Circuit still doesn't get it, and apparently Justices Souter, Stevens, and Ginsburg don't either.
Is Waddington v. Sarausad really one of those "murky" problems of accomplice liability? The statute/jury instruction required that Sarausaud knowingly aid the commission of the underlying crime. The evidence here showed that Sarausad was no babe in the woods. He knew that the other gangbangers could be armed; he slowed his car to facilitate the shooting etc. Thus it seems very very unlikely that the jury ultimately convicted Sarausad for murder even though they only were convinced beyond reasonable doubt that he knew about going back there to get into a fight. Does anyone really believe this guy was going to simply get into a fistfight with a bunch of 'bangers he thought could be armed? Most criminals aren't the sharpest knives in the drawer, but rarely are they that stupid.
Admittedly, the prosecutor's argument muddied the water a bit. But the case law is pretty clear on the weight a prosecutor's argument.
Maybe I'm a little harsh here, but the dissent seems to be reading this case divorced from the facts. Accomplice liability can involve some difficult issues, and it's likely that even the best drawn accomplice liability statute could contain some ambiguity in certain situations, especially if the prosecutor is flubbing up the law. (Note: that ambiguity as the statute is applied to various factual scenarios probably accounts for some of the Washington courts' differing interpretations of the statute.) But here, I think it a very difficult case to make. It's hard to believe, very hard to believe, that Sarausad didn't know that a shooting was going to happen--thus, it's unlikely that a confused jury, thinking him only guilty of wanting to aid a fistfight, made him eat a second degree murder charge.
Given the strictures of AEDPA, this case should have been 9-0.
Sarausad should feel fortunate that he only received 27 years for his crime. 27 years doesn't seem enough for helping a gangbanger shoot up the entrance to a school.
If I were arguing the case in state court on de novo review, I could make a decent argument for the defendant. Under the AEDPA standard, though, I agree the case was easy and should have been 9-0.
Let's hope this one, http://origin.www.supremecourtus.gov/docket/08-559.htm , relisted for the January 23 conference gets that 9-0 vote reversing the Ninth.