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An NYT Hatchet Job on Ted Cruz

David Brooks has this column in the NYT on Ted Cruz, and it can only be described as a hatchet job.  CJLF does not endorse candidates and takes no position on the Republican primary.*  However, I do think we should correct misrepresentations about the candidates when they fall within our area of expertise.
Brooks writes:

In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.

Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.

Some justices were skeptical. "Is there some rule that you can't confess error in your state?" Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.

The case reveals something interesting about Cruz's character.
In my opinion, this column reveals something a lot more interesting about Brooks's character.

First, a bit of background.  Appellate court decisions do not affect only the parties involved.  They also set precedents that will control future cases.  Sometimes courts come to results that are just in the particular case but do so by wrong paths, and the precedents set that way can cause other cases to end up in unjust results.  When such a bad precedent is set, the authorities of the state are quite right to have that error corrected, even if they expect the ultimate result in the particular case to be the same.

Notice the intentionally misleading half-truth in Brooks's statement, "The court system did finally let Haley out of prison ...."  What did he leave out?  Was Haley let out on the holding that Cruz sought to have the Supreme Court review?  What was the Supreme Court's decision on that point?  "Some justices were skeptical."  Okay, but what did the majority of the justices hold?  Who joined that opinion?  Brooks would rather you did not know.  But I will tell you.

The case involved an arcane but important bit of habeas corpus law known as the procedural default rule.  If a state prisoner did not bring up his claim in the proper manner and time in the state courts, and they deny it for that reason, the federal court can't consider the claim either, unless an exception applies.  One exception is good cause and resulting prejudice.  Another exception is actual innocence, which in some cases may mean ineligibility for the penalty.

In Haley's case, the Court of Appeals skipped over the "cause" inquiry to go straight to adjudicating actual innocence.  In this particular case that would lead to the correct result, but the Supreme Court has long said that federal habeas corpus is not the place to retry the guilt or innocence of the prisoner.  The "actual innocence" exception is available as a last resort to prevent a fundamental miscarriage of justice, but it should remain a last resort.  Deciding the guilt or innocence of the prisoner should remain the job of the state trial court whenever possible, and in most cases a grant of relief in federal court should send the case back there for retrial.  That was the principle that Ted Cruz asked the Supreme Court to review.  Saying "Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years" implies that he took the case there merely to change the result in this particular case.  That implication is false.

This was not one of the rare cases that the Supreme Court had to take.  It fell in the category where 99% of the cases are turned down without comment.  At least four justices had to agree with the bottom line of Cruz's certiorari petition -- that the principle was important enough to put this case into the 1% taken up for full argument. 

After full briefing and argument, the Supreme Court agreed with Cruz's position by a 6-3 vote.  Justice O'Connor wrote the opinion.  Justices Ruth Bader Ginsburg and Stephen Breyer joined it.  Does this reveal something interesting about Justices Ginsburg's and Breyer's characters?  Does it convict them of "brutalism," as the title of Brooks's article says about Cruz?  Where is his ringing denunciation of these justices for having joined the opinion?

On remand, the Fifth Circuit Court of Appeals decided the case on the correct basis, giving Haley relief.  See 376 F.3d 316.  Ted Cruz was still Solicitor General and did not take the case back to the Supreme Court.  That is because he took the case to the Supreme Court the first time to resolve an important question of law and not to get Haley.  Brooks leaves that out.  This inconvenient truth gets in the way of his thesis.

And don't shed any tears for Haley.  He was, in fact, a habitual criminal.  The incorrectness in his sentence was not a matter of any fundamental injustice but merely a timing quirk of Texas's habitual criminal law.  Because he committed his second felony three days before his conviction of the first one became final, he was not eligible for the "three strikes" sentence on the third felony under Texas law, but only on the barest of technicalities.  He actually got off easy in the end.  Brooks doesn't trouble you with that.  It's another inconvenient truth.

This column is a sleazy hit piece, presenting readers with a distorted picture painted with half truths.

*  A few notes and disclosures.  Although CJLF does not take a position in the election, I have made no secret of my belief that any of the Republican candidates (except Rand Paul, who doesn't have a snowflake's chance in a supernova anyway) would be far better for the cause of justice than any of the Democrats.  Also, by way of disclosure, I know Ted Cruz and worked with him on the case of gang-rapist/murderer Jose Medellin.  See this post from 2010.  See also posts from 2008 here, here, here, and here.


Great post Kent. I'm afraid that Mr. Brooks lost credibility in many people's eyes a long time ago.

The Brooks piece in the NYT is dishonest, there's no other word for it.

If Brooks had a shred of decency, he'd apologize. My guess, Cruz will be waiting a long time.

Ted Cruz has his weak points as a candidate for president, as do they all, but Brooks has failed in his task of identifying any that actually exist and instead has engaged in a sloppy hack job.

The following article is far more concerning, at least to me, and is certainly far more well-researched (as is usually true of Saletan):


My point is that it is still possible to write a piece about politics without just making things up and cherry-picking facts.

It is not surprising that the court case Brooks mentions is more complicated than can be elaborated upon in a column-length piece. Is it not a bit disingenuous though to state that the Court agreed with Cruz? They declined to answer the primary question in the case and remanded it to allow an ineffective assistance of council claim to be heard first. They punted. You could have legitimately supported your claim that it was a hit piece on Cruz more effectively by stating (correctly) that taking this to the Supreme Court was not his call to make.

Quibbles with Brooks' legal analysis aside, the Haley case was just one of his examples. But I guess your choice to attack Brooks on this point is understandable. Trying to refute Brooks' description of Cruz's style as a "...brutal, fear-driven, apocalypse-based approach..." would be much more difficult, if not impossible.

How many ways is the 9:21 comment wrong? Let's go through them.

No, it is not disingenuous to say that the Court agreed with Cruz's position, and no they did not punt. The position was to avoid expansion of "actual innocence of sentence" claims as exceptions to the procedural default rule in noncapital cases. The Court did reject application in Haley's case, and it did set a precedent that would make such applications rare in future cases. True that he did not win 100% of what he asked for, but that is not unusual and this is a solid win.

No, Brooks' misrepresentation of the case cannot be attributed to article length limitations. There are other, less important things in the article that could have been cut to make room for a succinct statement of missing, essential points about the Haley case, which Brooks does consider important enough to make the lead of the article. The fact that the Court ruled in the states favor, for example, is clearly more important to understanding the case than the fact that some (a minority) of justices were skeptical.

No, this is not a quibble. Brooks intentionally mislead his readers about the case.

I didn't go into the issue of whose call it was to file a certiorari petition because I personally do not know whether the Texas AG makes that call himself or delegates it to the SG.

I refuted Brooks on this point and did not go into the other matters in the article because (1) this is the point on which I have some expertise to offer beyond what is already in the media generally, and (2) personal style of candidates is not what this blog is about. I explained the limited scope of the post in the first paragraph.

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