Sunday, July 18, 2010

Procedure Uber Alles - Part II (Corrected)

When the Supreme Court decided Roger Coleman's case (Coleman v. Thompson), Justice O'Connor's opinion for the majority began with what are now familiar, if still chilling, words to capital litigators.
This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus.
Coleman's lawyer blew a deadline in the Virginia Supreme Court, and as a result, O'Connor (joined by Rehnquist, White, Scalia, Kennedy, and Souter) determined that Coleman had forfeited his right to have federal courts review his federal constitutional claims.  Coleman was executed a year later.*
Less well known than O'Connor's opening, less well known than they should be,  are the opening paragraphs of Harry Blackmun's dissenting opinion (joined by Marshall and Stevens).
Federalism; comity; state sovereignty; preservation of state resources; certainty: the majority methodically inventories these multifarious state interests before concluding that the plain-statement rule of Michigan v. Long, 463 U.S. 1032 (1983), does not apply to a summary order. One searches the majority's opinion in vain, however, for any mention of petitioner Coleman's right to a criminal proceeding free from constitutional defect or his interest in finding a forum for his constitutional challenge to his conviction and sentence of death. Nor does the majority even allude to the "important need for uniformity in federal law," id., at 1040, which justified this Court's adoption of the plain-statement rule in the first place. Rather, displaying obvious exasperation with the breadth of substantive federal habeas doctrine and the expansive protection afforded by the Fourteenth Amendment's guarantee of fundamental fairness in state criminal proceedings, the Court today continues its crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims. Because I believe that the Court is creating a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights, I dissent.


The Court cavalierly claims that "[t]his is a case about federalism," ante, at 726, and proceeds without explanation to assume that the purposes of federalism are advanced whenever a federal court refrains from reviewing an ambiguous state court judgment. Federalism, however, has no inherent normative value: it does not, as the majority appears to assume, blindly protect the interests of States from any incursion by the federal courts. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. "Federalism is a device for realizing the concepts of decency and fairness which are among the fundamental principles of liberty and justice lying at the base of all our civil and political institutions." Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L.Rev. 423, 442 (1961). See also The Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) ("Justice is the end of government. It is the end of civil society"). In this context, it cannot lightly be assumed that the interests of federalism are fostered by a rule that impedes federal review of federal constitutional claims.
Coleman, as the dissenters understood it would, became a touchstone for efforts by the courts and Congress to place form over substance, finality over fairness.  It's gotten worse (much worse) over the years.  I talked about it a bit last week in the context of William Garner's execution and the decision of the purportedly ultra-liberal, criminal-friendly Ninth Circuit in Lee v. Lampert.  And I've discussed it before in the context of claims of factual innocence.
And now there's the Fifth Circuit.
Ok, it's the Fifth Circuit.  (And it's a couple of months old, but I just saw it in today's Dallas Morning News.)  Here's how Jason Trahan begins his story.
Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.
You can see that's he's not a sympathetic figure.  You get it that, especially if when he "helped" do those things, he was actually doing them himself, he committed the kind of crime that they invented the death penalty for.  And it's important to recognize that, because like Coleman's this isn't a story of some good guy getting railroaded by a system.  This is a story of the system itself, working exactly the way Congress and the courts intend it to.
This is a story of what looks to be an illegal, unconstitutional murder.  Soon to be committed by the federal government.  With the specific authorization of the federal courts.
Because, you see, Webster has mental retardation.  (The newly correct language is to say that he is a person with "intellectual and developmental disabilities," but that's not the language everyone uses, and it doesn't quite capture the point as well, though perhaps it will one of these days.)  And that means that it violates the Eighth Amendment for him to be executed (Atkins v. Virginia).
Except, this is the second time Webster's asked the federal courts to weigh in on his death sentence.  That's one too many.  He doesn't fit one of the exceptions to AEDPA's rule that federal courts can only evaluate whether a conviction and sentence violates the Constitution once.
Because if they could review a death sentence just because it violates the Constitution - why then the republic would crumble.  
Or not.  But so Congress seems to think.  (You might think Sarah Palin and her Tea Party pals would jump all over this given the importance they place on the Constitution.  You might think that.  You'd be wrong.)
Anyway, Webster tried again, but the Fifth Circuit, in an opinion by Judge Jerry Smith, told him to forget about it and just get on with the business of getting killed.  It falls to Judge Wiener (who acknowledges that Smith has the law right and reached, therefore, the proper result), to say this is an outrage.
I write separately to emphasize the absurdity of its Kafkaesque result: Because Webster seeks to demonstrate only that he is constitutionally ineligible for the death penalty — and not that he is factually innocent of the crime — we must sanction his execution.
Actually, as Wiener says, Webster isn't just trying to make a case.  He's got it made.  Wiener explained.
If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded. In 1993 — more than a year before his indictment for the offense of conviction — Webster applied for Social Security benefits. To determine his eligibility for those benefits, three separate government physicians performed medical and psychological examinations on him. Notably, all three physicians independently concluded that Webster is mentally retarded.
So we're not talking possibility here.  Webster's not trying to game the system.  The law, whatever you think of Atkins is clear that it would violate the Constitution for him to be executed.  But the Fifth Circuit, recognizing that, says it has no power to stop the killing.
That system isn't just "Kafkaesque."  It's morally bankrupt.  If it's a system, it's an evil one.  Wiener lays it out plainly, but he can't see a way out.
The Supreme Court explained in Atkins v. Virginia that because mentally retarded persons suffer from “disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Thus, “in the light of our evolving standards of decency,” the Court held that the Eighth Amendment prohibits as excessive the execution of mentally retarded defendants. Although I concur in the majority’s opinion as a correct statement of the law, I continue to harbor a deep and unsettling conviction that, albeit under Congress’s instruction which ties our judicial hands so illogically, we today have no choice
but to condone just such an unconstitutional punishment.
In fact, of course, they have a choice.  They can fix the problem with the stroke of a pen:  The law requires a violation of the Constitution.  That makes it an unconstitutional law.  The Court can, and should, declare the law unconstitutional.  Refuse to follow it.
To do that, though, Wiener and the others would have to have the integrity - intellectual, moral, social, political, legal - to do what is intellectually, morally, socially, politically, and legally right.
But you know, it's hard to do that.  Because there's every reason to think that Congress intended just this.  The point of AEDPA was to prevent the federal courts from enforcing the Constitution in death penalty cases.  Far more important, Congress said, for the states to kill than for them to obey the Constitution.
This isn't the first time something of this sort has happened.  But it's stark and it's clear.  And, as I said, it's the system working exactly the way Congress and the courts intend it to.
Process.  Procedure.  Form over substance.  Kill them and be done with it.
The Supremes will be offered a chance to fix this particular mess.
I'm not holding my breath.
But I'll be watching.

*Coleman, of course, is not a sympathetic character.  He died insisting on his innocence of the rape-murder for which he was on death row.  He made a pretty good showing of innocence - enough to convince some not-all-that-easy-to-convince folks into spending years litigating against Virginia in an effort to test the DNA.  (The only credible explanation for Virginia's years of refusal is that the authorities believed testing would prove that they'd killed an innocent man.)  Eventually, it was tested.  Coleman was guilty, and promptly went from being a poster-child for death penalty error to being a poster-child for abolitionist naivete.

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