Today in Christeson v. Roper, No. 14-6873, the Supreme Court holds summarily that the Federal District Court in Missouri should have appointed new lawyers to argue for relief after the first set blew the deadline. The Court does not hold that relief should actually be granted. Justices Alito and Thomas dissent from the Court's summary treatment, believing "plenary review would have been more appropriate in this case."
Under Coleman v. Thompson (1991), the tailspin of each lawyer asking for a new review by accusing the one before was dealt with by cutting off the right to effective assistance after the first appeal. That protective mechanism is now going down the tubes, and we need a new one.
The 45-year-old proposal of Judge Henry Friendly is looking better and better. Every defendant, no matter how clearly guilty, is entitled to a trial and an appeal, with a right of effective counsel for both. After that, no more reviews unless he has a colorable claim of actual innocence. I suppose at this point we would have to add ineligibility for the penalty. In capital cases, one could also argue that the defendant is a minor, intellectually disabled, or a minor accomplice swept up in the felony murder rule, or that none of the circumstances that legally make a case capital are true. That would be all. In all other cases, i.e. most cases, we just wouldn't hear the claim.
If Judge Friendly's proposal is not politically palatable for the first habeas review, as he proposed it, surely we could at least apply it to all reviews after the first. That would include an initial federal review following a state collateral proceeding. In this case, the deadline missed was for federal review. Christeson already had a full review of his claims in state court.
I've copied the facts of the case from that state supreme court opinion on direct appeal after the break.
On Saturday, January 31, 1998, Christeson, 18, and his cousin Jesse Carter, 17, who were living in the home of a relative, David Bolin, concocted a plan to run away. The Bolin home was located in a rural area near Vichy, Missouri. Susan Brouk, along with her children, twelve year old Adrian and nine year old Kyle, lived about a half mile away. On Sunday morning, February 1, 1998, after Mr. Bolin left for work, Christeson and Carter each took shotguns and went to Ms. Brouk's home. After hiding outside for a few minutes, they entered the home and found Adrian and Kyle sitting on the living room floor. Ms. Brouk came in from the kitchen and encountered Carter binding her children's hands with shoelaces that he had brought for that purpose. Christeson forced Ms. Brouk into her daughter Adrian's bedroom at gunpoint, where he then raped her on Adrian's bed. When Christeson brought her back out to the living room, Carter bound her hands behind her back with a piece of yellow rope. Ms. Brouk said "you had your fun, now get out." At some point during the confrontation, Ms. Brouk and Kyle were both struck in the head with a blunt object.
About that time, Adrian recognized Carter and said "J.R.," Carter's nickname, and "Jesse Carter," which prompted Christeson to tell Carter "we got to get rid of 'em." They forced Ms. Brouk and her children into the back seat of Ms. Brouk's Bronco and also loaded her television, VCR, car stereo, video game player, checkbook, and a few other small items. Christeson drove down the highway, down a gravel road, and then across a neighbor's field to a pond at the edge of a wooded area.
They forced Ms. Brouk and her children to the bank of the pond. Christeson kicked Ms. Brouk just below her ribs with enough force that she was knocked to the ground. Christeson then placed his foot on her mid-section, and reached down and cut her throat with a bone knife. She bled profusely, but she did not die immediately, and as she lay on the bank of the pond, she told Adrian and Kyle that she loved them. Then Christeson cut Kyle's throat twice and held him under the pond water until he drowned. Carter pushed Kyle's body farther out into the pond so the body would sink. At Christeson's direction, Carter retrieved cinder blocks from a nearby barn, and while there, heard Christeson fire a shot from one of the shotguns. When Carter returned to the pond, Adrian was struggling to free herself from Christeson. Carter held Adrian's feet while Christeson pressed down on her throat until she suffocated, and Carter then pushed Adrian's body into the pond. While Ms. Brouk was still alive, but barely breathing, Christeson grabbed her arms and Carter grabbed her legs, and they threw her into the pond on top of her children's bodies. As she drowned, Carter went into the woods to get a long stick, which he used to push the Brouks' bodies further out into the pond.
Christeson and Carter returned to Mr. Bolin's property in the Bronco and parked it near a garbage pile. They took one of the shotguns back into Mr. Bolin's house, loaded their personal belongings into an Oldsmobile, and then drove the Oldsmobile back to the garbage pile and transferred their belongings to the Bronco. At that point, they drove off in the Bronco, eventually heading west on Interstate 44.
Ms. Brouk's sister, Kay Hayes, thought it was unusual that Ms. Brouk and her children did not come to Sunday dinner, as planned, but she was not concerned until Tuesday evening, when she called Ms. Brouk's home and there was no answer. That evening Ms. Hayes called another sister, Joy Lemoine, to inquire if she had heard from Ms. Brouk, but she had had no contact either. When family members went to Ms. Brouk's house the next evening, they discovered that Ms. Brouk's prescription glasses and the children's and Ms. Brouk's coats were still in the house and that the television, VCR, and Bronco were missing. They called the police, and that night officers from the Maries County Sheriff's Department secured the home and searched the premises.
The next morning, officers in a Missouri State Highway Patrol helicopter conducting an aerial search spotted a body floating in a pond located slightly southeast of the Brouk's residence. After landing the helicopter in a field just south of the pond, they found the bodies of Ms. Brouk, Adrian, and Kyle partially submerged. The officers then investigated the area around the pond and found a sixteen-gauge shotgun shell on the south bank, some leaves and soil splattered with blood, shoe impressions, and two cinder blocks on the west bank near the area where the bodies were recovered. There were also tire impressions leading from the pond to the garbage pile on Mr. Bolin's property where Christeson and Carter had parked the Bronco.
In the meantime, Christeson and Carter were driving from Missouri to California. On the way, they sold several items of Ms. Brouk's property to pay for gas and food. Christeson also pawned the sixteen-gauge shotgun at a pawnshop in Amarillo, Texas. On February 9, 1998, a detective with the Riverside County Sheriff's Department, stationed in Blythe, California, recognized Christeson and Carter from their photographs on a flyer that had been circulated by law enforcement officials, and later that day the fugitives were arrested.
Missouri officials continued to investigate the crimes. A medical examiner's autopsy report showed that the cuts to Ms. Brouk's neck were not severe enough to cause her death immediately and that the actual cause of death was drowning. Autopsies also revealed that Ms. Brouk and Kyle had hemorrhaging or bleeding under the scalp, indicating a blunt impact injury or blow to the head, and that there were two superficial cuts across Kyle's neck, but that he, too, died from drowning. Adrian died from suffocation, but there also was a small, shallow puncture wound in Adrian's left arm that could have been caused by a pellet from a shotgun shell, although no pellet was present. DNA testing performed by the Missouri State Highway Patrol Crime Laboratory established that genetic material from semen recovered from Ms. Brouk's body and from Adrian's sheets matched Christeson's genetic profile. Firearms-identification testing established conclusively that the sixteen-gauge shotgun that Christeson pawned in Texas was the one that fired the shell found on the bank of the pond.
An utterly repulsive, savage crime. First of all, what sort of sick twisted creature rapes a mother in the presence of her children. That crime, alone, warrants an automatic death sentence. To combine that sick crime with the outrageously brutal murder of two children and their mother removes all doubt as to the appropriateness of this sentence.
And yet, Members of the Supreme Court see fit, seven years after a habeas denial is issued, to first grant a stay of execution (without so much as the decency of an explanation) and then subject the victims' families to more torture. Utterly contemptible.
The Supreme Court leaves many things unexplained. For one thing, it seems irrelevant that the murderer had a federal statutory right to counsel in habeas. How can such a thing possibly be charged to the State of Missouri? Second, if federal statutory rights are now fair game--what about the victims' families right to a speedy determination? On top of that--where does the Supreme Court get the power to require that Missouri stay its hand--other than its say so ? So what if the federal district court erred? The standards for granting a stay don't turn on whether the District Court erred in evaluating some motion or another on post-judgment relief, but whether the condemned has made some showing, prior to the execution date, that he is likely to succeed on the merits. Else, the state's authority to execute has nothing to do with the propriety of its actions, but rather those of some federal judge. Our federalism doesn't countenance that.
The Supreme Court has embarrassed itself, and it has shown itself, yet again, to be thoroughly lawless. If it can't get easy cases like this right, then what confidence should we have that it gets any right? Additionally, if it decides that it simply doesn't care what the law is, then why should the rest of us?
States, in the future, should frustrate all attempts at stays. They should not make service of process easier. They should insist on personal service of all orders of the Supreme Court issuing a stay. No personal service should equal an execution.
The person who submitted a comment at about 10:30 PST 1/21 may resubmit it minus the profanity. No, putting asterisks in place of a couple letters is not sufficient.
It certainly makes for good invective to call the Supreme Court "lawless," but isn't that just a way of saying "I don't agree with the outcome of this case"? Did you think the Supreme Court was "lawless" when it overturned a section of the Voting Rights Act that had been approved by the Senate on a vote of 98-0? If that's not "lawless," how can this decision be "lawless"?
- Victor
Last I checked, the number of votes a particular statute gets isn't a measure of its constitutionality. As for the lawlessness of the stay and this particular decision, that's pretty easy to discern. First of all, the stay was granted without explanation. The Court didn't even bother to evaluate the state's interest in enforcing its criminal judgment, the likelihood of success on the merits, whether the defendant waited too late etc. By definition, that is lawless. The Supreme Court just did it.
Now as for the decision--it seems to hold, sub silentio, that a state, even if it's the holder of a presumptively valid habeas judgment, has to stay its hand because the federal courts can't figure out how to deal with a last-minute motion to set aside that judgment. The Court, by its own caselaw, is supposed to evaluate likelihood of success on the merits (that means the ultimate merits--i.e., is the criminal judgment kosher from an AEDPA perspective). Instead, we get a stay and more proceedings based on a sideshow.
The Supreme Court should at least be open about the rules here. Basically, it's going to blow off the law when it thinks that some capital defendant wasn't treated with the utmost rectitude.
I suspect one of the Court's libs wrote this opinion. It's a joke. None of the cases it cites remotely answers the question of why Missouri can't enforce its judgment. In reality, it's a lawless game of "Mother, may I?'
I do have to laugh, Victor, at your characterization of my post as boiling down to me not agreeing with the Court. I don't agree, of course, but I, unlike you, have stated my reasoning in writing.
First of all, I’m not aware of any requirement that the Supreme Court provide an explanation when granting a stay. Is there one that I’m not aware of?
On the merits, it looks like a pretty straightforward application of Clair. Clair provides that a substitution motion should be granted when there’s a conflict of interest, and here the lawyers themselves admitted there was a conflict.
On the other hand, the dissenters may have a completely valid point that the case shouldn’t have been resolved without full briefing and a hearing; I don’t know enough about the background of the case to know for sure.
My bigger point was that throwing around terms like “lawless” when discussing a decision you happen not to agree with weakens your argument, because it makes you sound hyperbolic. There are a great many Supreme Court decisions I disagree with, but I can understand how they reached the result they did.
- V
Victor, surely you're aware of the Supreme Court standards for granting a stay in general and the standards for granting a stay after an execution date is set post-habeas litigation. There's an analysis that federal courts are supposed to do. It didn't happen here. Now, of course, SCOTUS can do what it wants--but that is lawless in the sense that the reasoning is opaque. I've made this point in earlier posts--I am surprised that you didn't pick up on it. I don't see how this is "throwing" around the term. Basically, the Supreme Court told all federal courts to do an analysis of a stay motion--and yet, when one came to it, it didn't put its thinking in writing. "Lawless" is an apt descriptor.
As for the merits, I don't see how Clair is at all controlling. Fine, this guy has a right to substitution of counsel. How does that translate into maintaining a stay of execution? Why can't Missouri enforce its judgment? You have no answer, and neither does Clair.
The answer is, I suspect, that the Court is demanding that every single execution be preceded by what it deems as a fair federal habeas process. Ok, fine, but that's a significant expansion of AEDPA, and the State clearly is NOT responsible for slip-ups by habeas counsel--unlike in state court proceedings. Once again, if that's the Court's expectation, fine, say so and provide the reasoning. But if the reasoning is not provided, I can call it "lawless" and it is not just throwing around the term.