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Important Victory in Kindler

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The U.S. Supreme Court today decided Beard v. Kindler, a case on the procedural default doctrine. The decision is an important victory for the enforcement of the criminal law generally and capital punishment in particular, even though a broad question is left for a future case.

When a criminal judgment has been upheld by the state courts and is challenged in federal court, the petitioner often wants to make a claim that he did not make or did not make on time in the state court. The general rule is that the claim is barred by an independent state ground and cannot be reviewed in federal court, with exceptions for "cause and prejudice" or actual innocence. During the 1960s, when some state courts sometimes made up new procedural rules or gave them unforeseeable interpretations to evade civil rights requirements, the Supreme Court developed the concept of the "inadequate" state ground. In more recent years, federal habeas courts determined to evade limits on their authority have struck down state procedural rules as "inadequate" on the flimsiest of excuses. The Ninth Circuit, in particular, seems to have never met a state rule it liked.

 Today's decision disapproves one of the more extreme versions of "inadequate state ground" doctrine -- the notion that a state procedural rule is "inadequate" merely because it is discretionary. The Court's own Sullivan decision, discussed here, is curiously absent from the opinion even though it says exactly that, but surely Sullivan can now be considered overruled.

Many people, including the late Charles Alan Wright, yours truly, and the Philly DA, have argued that the Court should replace the existing mix of rubrics with a straightforward requirement that state law at the time of the default need only give the defendant notice of the right way to make the objection and a reasonable opportunity to do so. The Court today said the present case, involving the highly unusual "default" of escape from jail, is not the right vehicle to decide whether to make that change. The concurrence by Justice Kennedy comes very close to accepting it. The stage is set to make that change in the next appropriate case to come along.

Let's get those certiorari petitions in, folks. Charge!

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News Scan from Crime and Consequences Blog on December 8, 2009 11:14 AM

Plan to Cut CA Prison Crowding Backed by Inmates' Lawyers:  Sacramento Bee writer Denny Walsh reports on CA Governor Schwarzenegger's plan to reduce 33 adult CA prison populations to 137.5 percent of design capacity within two years.  Lawyers... Read More

3 Comments

Roberts got a unanimous opinion--the omission of Sullivan may have been the price of unanimity. Bottom line, though, this case sends a pretty strong message, and it will be interesting to see if the various Courts of Appeals get that message.

And remember, in the next case, Alito will likely be a part of it. Given Kennedy's extremely strong language--it seems that there are at least 5 votes for fixing this issue in the way that we'd like to see.

I wonder how many procedural default cases are "in the hopper". It will be interesting to see if SCOTUS does the GVR thing to whatever cases are currently pending and to see what the responses of the Courts of Appeals are.

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