A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.
Recently in Habeas Corpus Category
However partisan the atmosphere in Washington may be, there
is one thing I thought there should be a consensus on -- the U.S. Court of
Appeals for the Ninth Circuit is badly out of the mainstream on criminal cases
generally and capital cases in particular. Therefore, any appointments to that
court should be made with the purpose of correcting toward the middle.
Astonishingly, the Administration has done just the opposite. It has nominated Berkeley Professor Goodwin Liu. When Justice Alito was nominated, Professor Liu wrote a paper titled "Judge Alito and the Death Penalty." I wrote a rebuttal.
To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth would take a court that is already far out of the judicial mainstream and push it even further in that direction.
This calls for pull-out-the-stops opposition. The West suffers to this day from appointments made by Jimmy Carter on the advice of Alan Cranston three decades ago. We don't need more bad appointments to plague us for another generation.
Astonishingly, the Administration has done just the opposite. It has nominated Berkeley Professor Goodwin Liu. When Justice Alito was nominated, Professor Liu wrote a paper titled "Judge Alito and the Death Penalty." I wrote a rebuttal.
To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case. Adding him to the Ninth would take a court that is already far out of the judicial mainstream and push it even further in that direction.
This calls for pull-out-the-stops opposition. The West suffers to this day from appointments made by Jimmy Carter on the advice of Alan Cranston three decades ago. We don't need more bad appointments to plague us for another generation.
The Supreme Court today summarily reversed yet another federal court of appeals decision overturning a state court based on the federal court's own dubious extrapolation from Supreme Court precedent, rather than because anything in the state court decision is actually contrary to Supreme Court precedent. That misuse of habeas for pushing the envelope has been error under case law since the 1989 decision of Teague v. Lane, and it has been forbidden by an Act of Congress since 1996. Yet some federal judges still don't get it.
The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.
In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire. While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.
The Fifth Circuit granted habeas relief. For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008). The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.
The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.
In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire. While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.
The Fifth Circuit granted habeas relief. For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008). The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.
Today, the U.S. Supreme Court granted certiorari in Harrington v. Richter (09-587), and asked parties to address whether AEDPA deference applies to a state court's summary disposition of a claim, including a claim under Strickland v. Washington. Richter raises a question of whether a defense lawyer violates the Sixth Amendment
right to the effective assistance of counsel when he does not
investigate or present available forensic evidence supporting the
theory of defense he uses during trial, and instead relies on
cross-examination and other methods designed to create reasonable doubt
about the defendant's guilt.
In Richter, the Ninth Circuit granted habeas corpus relief to convicted murderer Joshua Richter because it believed that Richter's trial counsel had acted incompetently in declining to investigate and present helpful expert testimony on the source of a pool of blood found at the murder scene. The blood had been photographed, but never tested, and on habeas, Richter argued that if the blood had been tested it would have corroborated his claim that the victim had been caught in gun crossfire, and had not been shot in cold blood.
SCOTUSblog's Erin Miller posts a list of today's orders, and links to parties' briefs. The state's Petition for Certiorari is available here. Richter's Brief in Opposition is available here, and the state's Reply brief is available here.
In Richter, the Ninth Circuit granted habeas corpus relief to convicted murderer Joshua Richter because it believed that Richter's trial counsel had acted incompetently in declining to investigate and present helpful expert testimony on the source of a pool of blood found at the murder scene. The blood had been photographed, but never tested, and on habeas, Richter argued that if the blood had been tested it would have corroborated his claim that the victim had been caught in gun crossfire, and had not been shot in cold blood.
SCOTUSblog's Erin Miller posts a list of today's orders, and links to parties' briefs. The state's Petition for Certiorari is available here. Richter's Brief in Opposition is available here, and the state's Reply brief is available here.
Dan Balz has this article in the WaPo on the California governor's race, in which lifetime politico and current AG Jerry Brown will face off against a successful Silicon Valley business person (not sure which one yet).
Of all the long-overdue death sentences among California's ~700 denizens of the row, a good many are bottled up in the federal courts. Congress in 1996 provided for a fast track through the federal courts for states that provide qualified counsel on state habeas, as California has from the beginning. In 2006, Congress amended the law to remove some technical barriers to qualification for the fast track and moved the decision on qualification away from the conflicted habeas courts. Now the AG needs to apply for certification and pursue it through the USAG's office and the D.C. Circuit. I wrote to Mr. Brown over a year ago urging such action. No answer. No action.
The fact that there is litigation over implementing regulations is no reason to delay further. Nothing in the statute requires that the regulations be finalized before the certification process can begin.
Overall, Mr. Brown has handled the criminal side of the AG's office by putting good people in charge and letting them do their jobs without interference. That is as good as we at CJLF ever expected from him. In this area, though, "benign neglect" doesn't cut the mustard. This requires affirmative leadership.
You are a man of action, Mr. Brown? You know how to fix problems? Don't tell us; show us. We haven't seen anything yet.
"I know how state government works, how it should work, and I think I can fix it," Brown said in a recent interview.Well, Mr. Brown, how about fixing one of the main things that is wrong within the scope of your current office?
Of all the long-overdue death sentences among California's ~700 denizens of the row, a good many are bottled up in the federal courts. Congress in 1996 provided for a fast track through the federal courts for states that provide qualified counsel on state habeas, as California has from the beginning. In 2006, Congress amended the law to remove some technical barriers to qualification for the fast track and moved the decision on qualification away from the conflicted habeas courts. Now the AG needs to apply for certification and pursue it through the USAG's office and the D.C. Circuit. I wrote to Mr. Brown over a year ago urging such action. No answer. No action.
The fact that there is litigation over implementing regulations is no reason to delay further. Nothing in the statute requires that the regulations be finalized before the certification process can begin.
Overall, Mr. Brown has handled the criminal side of the AG's office by putting good people in charge and letting them do their jobs without interference. That is as good as we at CJLF ever expected from him. In this area, though, "benign neglect" doesn't cut the mustard. This requires affirmative leadership.
You are a man of action, Mr. Brown? You know how to fix problems? Don't tell us; show us. We haven't seen anything yet.
Lauren's Blog Scan notes a post at SL&P, noting an article by Lee Kovarsky on the question of whether relief for persons now ineligible for the death penalty should be blocked by procedural rules. I have to wonder if this is a solution in search of a problem.
All of the 17-year-old murderers' death sentences were commuted after Roper. None were executed anyway because of procedural default. In our experience, when a death row inmate is found to be genuinely retarded post-Atkins, the prosecution does not assert a procedural bar to relief. I was at a meeting of California capital prosecutors Friday, and one of them noted a (rare) case where a person on death row really is retarded. Everyone there agreed that the right thing to do was to stipulate to a grant of state habeas corpus relief.
There are, of course, a great many false claims of retardation. The day after Atkins was decided, a massive wave of adult-onset retardation swept across the death rows of America, unhindered by the inconvenient truth that there is no such thing as adult-onset retardation. Experts came out of the woodwork to serve up platters of baloney, such as the so-called "Flynn effect," to get those inconvenient 70+ scores on pre-crime tests down where they needed to be. They staunchly assert their confidence in the validity of post-arrest tests where the defendant has every incentive to malinger, when everyone knows those tests are suspect.
Is it a problem if a phony claim of retardation is blocked on procedural default or the statute of limitations? No. How about one close to the ragged edge? Should we waive default and time rules and adjudicate them all on the merits? Maybe, but what if the case goes to one of those district judges or appellate panels that is determined to overturn all death sentences regardless of the truth? Should the statute of limitations be asserted to prevent a miscarriage of justice when the prosecution is convinced the murderer is not really retarded? It's a tough question.
All of the 17-year-old murderers' death sentences were commuted after Roper. None were executed anyway because of procedural default. In our experience, when a death row inmate is found to be genuinely retarded post-Atkins, the prosecution does not assert a procedural bar to relief. I was at a meeting of California capital prosecutors Friday, and one of them noted a (rare) case where a person on death row really is retarded. Everyone there agreed that the right thing to do was to stipulate to a grant of state habeas corpus relief.
There are, of course, a great many false claims of retardation. The day after Atkins was decided, a massive wave of adult-onset retardation swept across the death rows of America, unhindered by the inconvenient truth that there is no such thing as adult-onset retardation. Experts came out of the woodwork to serve up platters of baloney, such as the so-called "Flynn effect," to get those inconvenient 70+ scores on pre-crime tests down where they needed to be. They staunchly assert their confidence in the validity of post-arrest tests where the defendant has every incentive to malinger, when everyone knows those tests are suspect.
Is it a problem if a phony claim of retardation is blocked on procedural default or the statute of limitations? No. How about one close to the ragged edge? Should we waive default and time rules and adjudicate them all on the merits? Maybe, but what if the case goes to one of those district judges or appellate panels that is determined to overturn all death sentences regardless of the truth? Should the statute of limitations be asserted to prevent a miscarriage of justice when the prosecution is convinced the murderer is not really retarded? It's a tough question.
On Thursday, the New York Historical Society is hosting a reenactment of Ex parte Milligan, 71 U.S. 2 (1866). Justice Antonin Scalia is presiding. Apparently he is presiding alone, so it's not clear if he is reenacting Chief Justice Chase, opinion author Justice Davis, or a composite of the whole bench.
Lambdin Milligan was an American citizen and a civilian, yet he was convicted of treason by a military tribunal in the waning days of the Civil War. The Supreme Court granted a writ of habeas corpus on the only ground that habeas could be issued postconviction in those days -- that the committing court had no jurisdiction. There is a curious, if morbid, mootness discussion on page 118, involving an assertion that Milligan had already been hanged. In fact, according to the Wikipedia entry, President Johnson had commuted the sentence two days before the execution date.
Sounds like a fun evening for those of you in New York.
Lambdin Milligan was an American citizen and a civilian, yet he was convicted of treason by a military tribunal in the waning days of the Civil War. The Supreme Court granted a writ of habeas corpus on the only ground that habeas could be issued postconviction in those days -- that the committing court had no jurisdiction. There is a curious, if morbid, mootness discussion on page 118, involving an assertion that Milligan had already been hanged. In fact, according to the Wikipedia entry, President Johnson had commuted the sentence two days before the execution date.
Sounds like a fun evening for those of you in New York.
On January 22, 2009, President Obama pledged to close the detention camp at Guantanamo Bay within a year. Today that promise will go by the boards. We can all be thankful.
The obsession with closing Gitmo was always more about high-minded posturing than protecting the country from terror. It was also a sop to the President's left flank, the same element that declines to call terrorism by its name, instead labelling it a mysterious "man-caused disaster." (This is the same element, namely Secretary Janet Napolitano, who assured us that the Christmas day near-successful attempt to bomb an airplane showed that "the system worked.").
The President's failure to make good on his promise is a welcome sign that at least a sliver of reality has elbowed its way into the administration's thinking. But a sliver isn't enough. It's not merely that released Gitmo detainees have returned to the battlefield to kill Americans, as the administration acknowledged last May in a Defense Intelligence Agency report leaked to the New York Times. It's that the entire strategy of treating captured terrorists as ordinary criminal defendants is as incoherent as it is dangerous.
Continue reading A Presidential pledge broken, thank goodness.
With last week's "smackdown" of the Ninth Circuit in McDaniel v. Brown, and this week's ruling in Wellons v. Hall, CJLF is starting to wonder, will the Supreme Court's 2009 Term be a term of summary AEDPA reversals? If this trend continues, it just may well be.
A summary reversal occurs when the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. (Brown is an unusual variation where the Court took briefing on the merits and scheduled an argument but then cancelled the argument and reversed without it.) Such a reversal usually indicates that the Court believes there is something wrong with the lower court decision, and does not feel the need to create any new law in striking it down. These don't happen often. A quick search of the Court decisions from the 2006, 2007 and 2008 terms, found there were only seven summary reversals over a three year period, and only two of them were habeas cases. A quick search of to-date 2009 opinions finds that seven summary reversals were issued by the Supreme Court, and six of them were habeas cases.
The startling number of summary reversals in habeas cases in 2009 raises some interesting questions. How is it that lower courts are reaching conclusions that the Supreme Court finds so fundamentally wrong? Is AEDPA really that confusing? Or is something else at work here?
A summary reversal occurs when the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. (Brown is an unusual variation where the Court took briefing on the merits and scheduled an argument but then cancelled the argument and reversed without it.) Such a reversal usually indicates that the Court believes there is something wrong with the lower court decision, and does not feel the need to create any new law in striking it down. These don't happen often. A quick search of the Court decisions from the 2006, 2007 and 2008 terms, found there were only seven summary reversals over a three year period, and only two of them were habeas cases. A quick search of to-date 2009 opinions finds that seven summary reversals were issued by the Supreme Court, and six of them were habeas cases.
The startling number of summary reversals in habeas cases in 2009 raises some interesting questions. How is it that lower courts are reaching conclusions that the Supreme Court finds so fundamentally wrong? Is AEDPA really that confusing? Or is something else at work here?
Continue reading A Term of AEDPA Summary Reversals?.
Today, the Supreme Court will hear oral arguments in Berghuis v. Smith (08-1402), a case involving issues of jury discrimination disparity analysis and AEDPA deference.
In 1993, Diapolis Smith was convicted for the second-degree murder of Christopher Rumbly at a bar in Grand Rapids, Michigan. He was sentenced to life in prison without the possibility of parole. On appeal, Smith claimed that his Sixth Amendment right to a venire (jury pool) representing a fair-cross-section of the community was violated because the percentage of African Americans who appeared for jury service was lower than the percentage of African Americans living in Kent County, Michigan. The Michigan Supreme Court rejected Smith's argument. It found that Smith had "failed to establish a legally significant disparity under either the absolute or comparative disparity tests" and that he failed to demonstrate systematic exclusion of minorities.
Smith's habeas petition was denied by the federal district court, but the Sixth Circuit reversed. It concluded that the Michigan state courts acted unreasonably when they found the minority underrepresentation in Smith's case was constitutionally insignificant.
Today's arguments are likely to focus on whether the state supreme court reasonably applied Sixth Amendment precedent to reach a correct decision on the merits, and whether the Michigan Supreme Court reasonably applied the three-part test established in Duren v. Missouri. Michigan Solicitor General, B.Eric Restuccia will be arguing for the state of Michigan, and James Sterling Lawrence will be arguing for Smith.
Today's oral arguments are previewed here and here on SCOTUSblog. The second post features five minute podcasts from participants in the case. CJLF's Kent Scheidegger summarizes the issues before the court and argues that the Sixth Amendment does not contain a "fair cross-section" requirement. The podcast provided by Lawrence, Smith's attorney, could well be a preview of what he will argue before the court today.
In 1993, Diapolis Smith was convicted for the second-degree murder of Christopher Rumbly at a bar in Grand Rapids, Michigan. He was sentenced to life in prison without the possibility of parole. On appeal, Smith claimed that his Sixth Amendment right to a venire (jury pool) representing a fair-cross-section of the community was violated because the percentage of African Americans who appeared for jury service was lower than the percentage of African Americans living in Kent County, Michigan. The Michigan Supreme Court rejected Smith's argument. It found that Smith had "failed to establish a legally significant disparity under either the absolute or comparative disparity tests" and that he failed to demonstrate systematic exclusion of minorities.
Smith's habeas petition was denied by the federal district court, but the Sixth Circuit reversed. It concluded that the Michigan state courts acted unreasonably when they found the minority underrepresentation in Smith's case was constitutionally insignificant.
Today's arguments are likely to focus on whether the state supreme court reasonably applied Sixth Amendment precedent to reach a correct decision on the merits, and whether the Michigan Supreme Court reasonably applied the three-part test established in Duren v. Missouri. Michigan Solicitor General, B.Eric Restuccia will be arguing for the state of Michigan, and James Sterling Lawrence will be arguing for Smith.
Today's oral arguments are previewed here and here on SCOTUSblog. The second post features five minute podcasts from participants in the case. CJLF's Kent Scheidegger summarizes the issues before the court and argues that the Sixth Amendment does not contain a "fair cross-section" requirement. The podcast provided by Lawrence, Smith's attorney, could well be a preview of what he will argue before the court today.
Justice Sotomayor's first full opinion in a capital case is a win for the state, upholding the sentence. Wood v. Allen involves a well-deserved death sentence for a man who had a habit of trying to murder his ex-girlfriends, succeeding on the third attempt. His attorneys decided not to use a mental defense in mitigation. The state court found that was a strategic decision, of the kind that is close to unreviewable under Strickland v. Washington. That factual determination was reasonable under 28 U.S.C. §2254(d)(2). The vote was 7-2 with Justices Stevens and Kennedy dissenting.
The opinion is quite short, with 8 pages of windup and 4 of pitch. The question of the interrelation of AEDPA's two provisions on state court findings of fact, §§2254(d)(2) and (e)(1), remains unresolved. If the state court decision is based on findings that are reasonable, given the evidence before the state court, and that court reasonably applies those facts to established Supreme Court precedent under (d)(1), nothing further needs to be decided. But we already knew that. See Rice v. Collins, 546 U.S. 333 (2006). For further information on this, see CJLF's brief in the case at pages 5 and 10-14 (mentioned in footnote 2 of the opinion).
The opinion is quite short, with 8 pages of windup and 4 of pitch. The question of the interrelation of AEDPA's two provisions on state court findings of fact, §§2254(d)(2) and (e)(1), remains unresolved. If the state court decision is based on findings that are reasonable, given the evidence before the state court, and that court reasonably applies those facts to established Supreme Court precedent under (d)(1), nothing further needs to be decided. But we already knew that. See Rice v. Collins, 546 U.S. 333 (2006). For further information on this, see CJLF's brief in the case at pages 5 and 10-14 (mentioned in footnote 2 of the opinion).
Continue reading Death Penalty Affirmed in Wood.
The Supreme Court orders list is here. The controversial Abu-Jamal case is vacated and remanded to the Third Circuit to reconsider in light of Smith v. Spisak. On the WaPo site is this AP story. The headline writer refers to Abu-Jamal as a "suspect."
The Court also sent a California case, Patrick v. Smith, back to the Ninth Circuit to reconsider in light of the high court's spanking of the Ninth in McDaniel v. Brown. Anyone care to bet that the Ninth will say Brown has no bearing on Smith only to be reversed by the Supreme Court? We've seen that scenario a time or two.
Attached to the order list are opinions in summary dispositions of Presley v. Georgia, on exclusion of the public from voir dire, and Wellons v. Hall, previously noted here, on a federal habeas claim where the facts had been insufficiently developed in state court. Wellons is remanded for reconsideration in light of Cone v. Bell.
The court turned down the California prisoner case, Schwarzenegger v. Plata, "for want of jurisdiction." I'll have more on that in a separate post.
The Court also sent a California case, Patrick v. Smith, back to the Ninth Circuit to reconsider in light of the high court's spanking of the Ninth in McDaniel v. Brown. Anyone care to bet that the Ninth will say Brown has no bearing on Smith only to be reversed by the Supreme Court? We've seen that scenario a time or two.
Attached to the order list are opinions in summary dispositions of Presley v. Georgia, on exclusion of the public from voir dire, and Wellons v. Hall, previously noted here, on a federal habeas claim where the facts had been insufficiently developed in state court. Wellons is remanded for reconsideration in light of Cone v. Bell.
The court turned down the California prisoner case, Schwarzenegger v. Plata, "for want of jurisdiction." I'll have more on that in a separate post.
The Supreme Court today reversed the decision of the Sixth Circuit, which had overturned the death sentence of unrepentant triple murderer and neo-Nazi Frank Spisak. As with yesterday's Brown case, we have a federal court of appeals declaring a state court decision to be not merely wrong but unreasonable, yet when the Supreme Court takes the case not a single Justice thinks the federal court of appeals was right.
Update: Thomas Sheeran has this story on the case for AP.
Update: Thomas Sheeran has this story on the case for AP.
The Supreme Court summarily decided McDaniel v. Brown (08-559) today. Justice Thomas wrote a concurring opinion, which Justice Scalia joined.
The Court granted certiorari on the case last January, and then canceled oral arguments it had scheduled for October 13, 2009. The opinion is available here. Our brief is available here.
The Court granted certiorari on the case last January, and then canceled oral arguments it had scheduled for October 13, 2009. The opinion is available here. Our brief is available here.
Habeas corpus has a long history of use (and misuse) to get review of a decision in courts that don't really have review jurisdiction. But the wellsprings of lawyer creativity never seem to run dry. From the Ninth Circuit's decision today in Jeffredo v. Macarro, No. 08-55037:
The Pechanga Band of the Luiseño Mission Indians ("Pechanga Tribe") disenrolled a number of its members ("Appellants") for failing to prove their lineal descent as members of the Tribe. Federal courts generally lack jurisdiction to consider any appeal from the decision of an Indian tribe to disenroll one of its members. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978). Appellants, therefore, brought this petition for habeas corpus under 25 U.S.C. § 1303 of the Indian Civil Rights Act ("ICRA"), claiming their disenrollment by members of the Pechanga Tribal Council ("Appellees") was tantamount to an unlawful detention. Despite the novelty of this approach, we nonetheless lack subject matter jurisdiction to consider this claim, because Appellants were not detained. We hold that Appellants cannot bring their claims under § 1303 of the ICRA and therefore affirm the district court.District Judge Claudia Wilken, sitting by designation, dissented.
