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Summary Disposition, SCOTUS, and the NYT

Adam Liptak covers the U.S. Supreme Court for the New York Times.  Naturally, he leans the opposite way from my point of view.  That seems to be pretty much a job requirement to work at the NYT.  Even so, his coverage is generally perceptive and shows some balance, unlike the NYT's coverage prior to his tenure.

That is why I was surprised to see him go completely off the rails in this article, published today, on the Supreme Court's summary disposition cases.  The headline reads "Supreme Court's Unsigned Rulings Show a Narrow View of Rights." Liptak may not have written the headline, but in this case the headline writer did capture the misguided spirit of the article.

WASHINGTON -- The Supreme Court decided 66 cases in the usual way this last term, after full briefing and oral arguments. It also quietly issued eight other decisions.

Those rulings, more than 10 percent of the court's docket, were brief and unsigned. Presumably meant to correct errors so glaring that they did not warrant extended consideration, they nonetheless illuminated a trend in the court's work.

In most of them, one of two things happened. Prisoners challenging their convictions lost. Or law enforcement officials accused of wrongdoing won.
For criminal cases, there is a very good reason why most summary SCOTUS decisions go against the prisoners challenging their convictions.  Think you might find out what that reason is by reading the article?  Alas, no.
What's with the "presumably"?  That is exactly what these summary dispositions are for, and this term that is exactly what they did -- going both ways despite what follows in the article.

Where does Liptak turn for an explanation of the trend?  To Judge Stephen Reinhardt of the Ninth Circuit, quite possibly the most reversed judge in the entire federal judiciary.  Seriously?

The Supreme Court, Judge Reinhardt wrote in The Michigan Law Review, has taken to using a narrow definition of what counts as "clearly established." Instead of looking to general principles, he said, the court requires the prisoner or plaintiff to do something that is all but impossible in most cases: to identify a decision that concerned nearly identical factual circumstances.

That is a flat-out falsehood.  At no time has the Supreme Court said that.  At no time has the Supreme Court done that.  Let's take a look at the case cited as an example:

The most recent, in March, involved Cory Donald, who is serving a life sentence in Michigan for his role in the killing of a drug dealer. He said he had been denied effective assistance of counsel at his trial because his lawyer had been absent for part of it.

A federal trial court and a divided panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed, relying on a Supreme Court decision that said a defendant's constitutional rights are violated whenever his lawyer is absent from a critical portion of the trial.

The Supreme Court reversed in an unsigned opinion. It said the Sixth Circuit had "framed the issue at too high a level of generality." There was, the opinion said, no precedent addressing "the specific question presented by this case."

"None of our holdings," the opinion said, framing the issue much more narrowly, "address counsel's absence during testimony that is irrelevant within the defendant's own theory of the case."
The Supreme Court did not require factual identity to any Supreme Court precedent.  The issue before the Court related to a broadly applicable rule of law.  The usual rule, that of Stickland v. Washington, is that a prisoner challenging his conviction or sentence on the ground of allegedly deficient performance of his lawyer must show both deficient performance and "prejudice," meaning a reasonable probability that it made a difference.  For a very, very few claims, where the defendant has been denied counsel altogether at a critical stage of the trial, the prejudice showing is waived and deficiency alone is enough.  That is the rule of United States v. Cronic.

In a joint trial, is testimony that relates only to the other defendants a "critical stage"?  That is a broad question, not one microscopically focused on the particular facts of this case.  The Michigan Court of Appeals considered that question on Donald's initial appeal and decided the answer is no, and no Supreme Court precedent holds to the contrary.

Can a federal court of appeals substitute its view in a state case for the carefully considered view of the state court on a debatable question with no controlling Supreme Court precedent?  Congress considered that question in 1995-1996 and decided the answer would be no.  That is what this is all about. 

The state court decision of the issue is missing from Liptak's description of the case.  The central fact that this rule of law is all about relitigation of issues that have already been heard and decided once is completely missing from the article.

Further, the Supreme Court's holding does not mean that someone in Donald's position cannot make an ineffective assistance claim.  It only means that he has to make a showing of prejudice, just like 99% of the other petitioners making ineffective assistance claims.  No factual identity is required to make a claim under Strickland.  Such claims are made all the time.  They are occasionally granted by federal habeas courts, and the Supreme Court turns down most of the states' requests to review those grants.

What about the other summarily decided habeas cases in the term?  Glebe v. Frost is similarly about the standard of review to be applied, not tightly focused on the facts of the case.  Lopez v. Smith is about the rules that apply to a shift in the prosecution's theory during a trial, not focused specifically on the particular shift in the case or demanding factual identity to another case.  The accusation that the Supreme Court is demanding factual identity is not sustained by a single case in the term.

Nor do all of the summary dispositions favor the prosecution.  Christeson v. Roper, a capital habeas case, was summarily decided in favor of the petitioner.  It was only a preliminary issue, to be sure, not a final judgment in the case.  Nonetheless, the petitioner won.  In Grady v. North Carolina the Supreme Court summarily reversed a state court decision on direct appeal for misapplying its recent cases on what kind of monitoring is a "search."

Over the course of recent years, there have been more summary Supreme Court decisions for the prosecution than the defense, but that fact must be considered in light of the structure of review of state criminal cases.  The defendant gets the benefit of a "heads I win, tails we take it over" system of review. 

If the defendant wins in state court on a federal question and the U.S. Supreme Court denies review, the case is over.  The prosecution cannot take the case to the lower federal courts no matter how clearly wrong the decision may be.  If the prosecution wins, the defendant can go to the federal district court and from there to the federal court of appeals.

If the state court decision is clearly wrong in favor of the prosecution, the U.S. Supreme Court does not need to correct it because the lower federal courts can do that.  If the federal court of appeals is clearly wrong, the Supreme Court is the only court that can correct it.  For such an error to run against a state criminal defendant, both the last state court to review the case and the federal court of appeals would have to be clearly wrong.  For such an error to run against the prosecution, only the latter would need to be clearly wrong.  It is not difficult to see that one court being clearly wrong in a case happens much more often than two courts being clearly wrong in the same case, so of course there are many more summary reversals in the Supreme Court of decisions favoring defendants.

This is not a deck stacked in favor of the prosecution.  It is an incomplete and insufficient corrective to a deck stacked in favor of defendants.  As Judge Reinhardt himself is reported to have said of the Supreme Court, "They can't reverse them all."

The reason the federal courts of appeals so often commit clear error is their resistance to a law that limits their power.  Before 1996, they sat as mini-Supreme Courts above the state courts, substituting their views for the considered decisions of all state courts, even the state supreme courts.  They often did so badly, especially in capital cases, as a study* I did shortly before AEDPA showed.  When the Ninth Circuit disagreed with a state supreme court within the circuit on a question of law, and that question was later resolved by the U.S. Supreme Court, the state courts were right and the Ninth was wrong the vast majority of the time (operationally defining the "right" answer as the Supreme Court's answer).

When a three-judge panel of the Ninth Circuit disagrees with the California Supreme Court, is there any reason to believe the panel's answer is superior?  There is no good inherent reason, and observation shows no empirical basis.  The defense loves "heads I win, tails we take it over" because it means they win much more of the time.  Should we intentionally place a thumb on the scales that way?

If the question were one of actual guilt or innocence, yes.  How often is it?  Damn near never.  It has been 45 years since Judge Henry Friendly proposed what I call the Friendly Filter.  His proposal was to require all habeas corpus petitioners to have a colorable claim of actual innocence before we would even consider their petitions.  Unfortunately, Congress has never seriously taken up this proposal. 

Liptak quotes Judge Kozinski worrying about actual innocence.  If that is really what troubles the opponents of the AEDPA deference standard, let me propose a trade -- Repeal 28 U.S.C. ยง 2254(d) in return for enacting the Friendly Filter.  This is with the understanding that "innocence" does not mean Twinkie Defense innocence but rather no-baloney "got the wrong guy" innocence.  Any takers?  I won't be holding my breath.

How much of this do you get by reading Liptak's article?  Essentially none.  The space constraints of newspapers limit how much can be put in an article, of course.  Still, I don't see any excuse for leaving out the central fact that we are talking about relitigation of cases already reasonably decided by the state courts or that in disagreements between state and lower federal courts the latter have often been wrong.  Nor is there any excuse, in my view, for reporting the complaint that most of the Supreme Court's summary criminal decisions are in favor of the prosecution without also educating the reader that the structure of the system makes egregious errors in favor of defendants much more likely at this stage of the process than such errors against them.

These omissions are a bit like reporting on the situation in Iraq without mentioning ISIS.  I hope we will see better coverage in the future.

* The study is reported in an Appendix to this 1995 pamphlet.  See page A-11, page 64 of the PDF file.

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