Saturday, August 8, 2009


Remember how less than a week before they were going to kill Tim McVeigh, and some six years after the Oklahoma City bombing the government discovered 3,135 pages of material sitting around FBI offices that should have been turned over to the defense? (Story here.) And then how a couple of weeks later they found another 900 or so pages? (See here.)

Remember how it was an embarrassment and they postponed the execution and the government looked somewhere between inept and comical and complicit? Remember how we said things like "If they can fuck this up they can fuck up anything?" And "This just proves you really can't trust them."

McVeigh's was, of course, the biggest domestic terrorism case ever. The Government had never worked harder to put together a case. There was intense scrutiny. The government saw it as a slam dunk win and death sentence. You'd think they'd have wanted the thing done right. You'd think they'd have made sure it was. As we know, you'd have been wrong.

Fast forward a few years to the nation's capital and environs. Over the space of a few weeks in September and October 2002, randomly chosen innocent people were being shot at long range by a sniper or snipers. Some 16 people were shot. 10 were killed. There was widespread panic. There was a multi-state, even nationwide manhunt for the killer or killers. Eventually, they caught John Allen Muhammad and his 17-year-old companion Lee Boyd Malvo. (Among many versions of the manhunt, Chief Moose's own self-serving tale is perhaps worth special mention.)

Attorney-General Ashcroft decided the two should be tried in Virginia. Malvo got LWOP. In November 2003, Muhammad was sentenced to die. It was Virginia, the state with the fastest average time from sentence to execution, so you kind of knew things would go quickly, and they did. By mid-May 2006, the Virginia Courts and the U.S. Supreme Court had denied Muhammad's direct appeal. His petition for habeas corpus in the Virginia courts was due and was filed in July 2006. But, as the Fourth Circuit explained,
in June 2006, one month before the due date for filing his state habeas petition, his Virginia attorneys received from his Maryland attorneys a DVD with approximately 30,000 pages of discovery responses that were not produced during his Virginia case over two years earlier even though they were possessed by the same multijurisdictional joint investigation team.
Yep. Another monster case. Another seeming slam-dunk for the Government in its cherry-picked jurisdiction. Another death sentence. Another oopsy.

So far, it hasn't mattered to the courts any more than the screw-ups in McVeigh's case mattered. Virginia courts saw no problem requiring relief. A habeas petition was quickly denied in federal district court. Yesterday, a three-judge panel of the Fourth Circuit ruled. (Opinion here.) Not surprisingly (see discussion of the Heinous Crime Rule), they affirmed his conviction and death sentence.

The panel does express distaste for and misgivings about Virginia's improper suppression of evidence.
Let it be clear that we by no means condone the actions of the Commonwealth in this case. As a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution. When questioned at oral argument regarding why this information was withheld or why the Commonwealth did not take the step of instituting an open-file policy, the Commonwealth had no explanation.
But, you know, it's not really that big a deal. After all, he's guilty of a horrible crime
Yet, at this stage of the criminal process, we deal only with actions that were clear violations of the Constitution. While not admirable, the Commonwealth’s actions did
not violate the Constitution. Even if the withheld evidence were exculpatory, Muhammad cannot show that he was prejudiced by any nondisclosure. The jury determined that he murdered several people, the evidence against him in most
instances was compelling, and any number of the killings could serve as the one predicate killing necessary for his conviction.
You know, all that complaining about how shoddy Virginia's behavior was and how the panel is only permitted to review Constitutional error would be a whole lot more compelling (and credible), if the panel had done its job right in evaluating that evidence.

According to the panel, the evidence was not exculpatory, and therefore not a basis for relief, because it did not definitively contradict the Commonwealth's case. But that's wrong on two grounds.
  • The proper test, as SCOTUS has made abundantly clear, isn't whether evidence is exculpatory but whether it's favorable to the defense at either guilt or punishment, and evidence is favorable if it tends to exculpate or is impeaching. See, for instance,Brady v. Maryland, Strickler v. Greene, and Kyles v. Whitley.
  • Evidence does not need to definitively contradict the state's case to be useful for impeachment - or even to be exculpatory. The ultimate test, as those same cases explain, is whether the evidence tends to undermine confidence in the outcome of the trial, whether there's a "reasonable probability" that the outcome would have been different had the evidence been used at trial.
I was in the Ohio Supreme Court years ago waiting to argue my case while Cathy Cook was arguing a death penalty appeal. Her issue, or at least the one I recall her arguing, was prosecutorial misconduct. It was another case, she said of the Hamilton County Prosecutors Office violating some set of rules, and the court should, finally, not just tell them to go and sin no more. I wrote down what she said:
You've got to make them lose to make them learn.
The court didn't make them lose that case, nor is there any particular evidence that they learned.

The maxim is that "bad cases make bad law," and the panel's opinion in Muhammad is certainly bad law. It's also enabling. And that's far worse.

What's true of the federal government in McVeigh's case and the Commonwealth of Virginia in Muhammad's is true of every jurisdiction, not in every case, but in more than a few. In cases big and small, in slam dunks and in close calls. And it shouldn't be a surprise.

If the government will be sloppy or dishonest when there's no reason, then how can we trust it in any case? And how can we trust a court system to monitor it when it hides behind obfuscation and its own unwillingness to acknowledge the law.


  1. It has been my experience that the big, high-profile cases with the overwhelming evidence of guilt are the cases in which prosecutors commit the worst misconduct, trial courts make the least sound rulings on evidence, and appellate courts are most likely to overlook these egregious errors. Until appellate courts are willing to pull the trigger and actually grant relief in these cases, I don't see that pattern changing.

    I believe I have uttered a line very similar to the one said by your colleague. It didn't work for me, either.

  2. Certainly, they're the cases that are least likely to get serious scrutiny. That's the sad point of the heinous crime rule.

    And I think for just that reason that it's probably the case that a larger number of factually innocent people are convicted of capital crimes than of any other offenses except child sexual abuse. (That's really just a guess, I have no data to support it.) Why? Publicity controls. High profile leads to great incentive for misconduct not to convict those believed innocent (though that happens) but to ensure convictions against those the police and prosecutors believe to be guilty.