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Making the Long Appeal Route Even Longer

Today a bare majority of the US Supreme Court took a major step in the wrong direction, making the seemingly endless chain of appeals even longer.  In the 1991 case of Coleman v. Thompson, the Court provided a definite cut-off to the practice of perpetually asking for new reviews of a case, each time claiming that the supposed incompetence of the lawyer in the previous review was "cause" for not making the claim on the previous round.  Opposing bogus ineffectiveness claims is one of the most difficult tasks for the prosecution team.  They must defend their former adversary, who often has no interest in helping and sometimes falls on his sword and assists the attack on his own performance.  Further, essential facts are shielded by attorney-client and work-product privileges.  Coleman cleanly cut off the use of ineffectiveness as cause where the constitutional right to counsel ends -- at the first appeal as of right.

Last year in Martinez v. Ryan, the Court made an exception to the rule, but it emphatically promised that the exception would be narrow.  It was only for states that forbid ineffectiveness of trial counsel claims to be raised on direct appeal.

Today in Trevino v. Thaler, the Court broke its promise in Martinez.  It expanded the "exception" to all states where the record on direct appeal is typically inadequate, as a practical matter, to make ineffectiveness claims.  That includes nearly all, if not all, states.  Coleman is effectively overruled in its most important application.  Chief Justice Roberts notes this betrayal in his dissent.  (CJLF's brief made a similar argument.)  Justice Scalia adds a brief note quoting his dissent in Martinez and saying, in essence, "I told you so."

For capital cases, where the problem is most acute, the statutory fix is already in place.  States must move forward aggressively to revive the moribund "fast track" of Chapter 154 of Title 28, U.S. Code.  That chapter includes its own statutory procedural default rule, 28 U.S.C. §2264(a), which does not have the exception announced today.

Arizona Attorney General Tom Horne has taken the lead.  Other AGs should join him.  Don't retreat.  Charge!


Another example of the slippery slope of allegedly "narrow," fact-bound, exceptions and rules. And another reason why I believe that, before he retires, Justice Kennedy will author the 5-4 opinion declaring capital punishment unconstitutional.

If that happens, the governors of the states should simply ignore the Court and conduct executions.

:: apoliticalcomment ::

Do you recall Justice Kennedy's Roper v. Simmons, 2005?

{deathpenaltyinfo.org}: "Before this historic ruling, the Court concluded in 1989
in Stanford v. Kentucky, 492 U.S. 361, that the execution of 16- and 17-year-
old offenders was not constitutionally barred. The Court now concludes
that since Stanford, a national consensus has formed against the
execution of juvenile offenders, and the practice violates society’s
“evolving standards of decency.” The Court overruled its decision
in Stanford..."

You may be right; 'elastic-man' Kennedy need but cite evolving standards, in order to conveniently justify any of his means by which he drives us in the 'Slouch toward Gomorrah".


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