Here's how an opinion in a capital case decided today by the Sixth Circuit begins.
For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio. In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, 373 U.S. 83 (1963), an error that later came back to bite it in federal habeas review. D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008). Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him. After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ. Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court, and it is now in the position where it may have to let a man it believes to be a murderer go forever free. Whether D’Ambrosio deserves that windfall I cannot say, although, after more than twenty years of bungling his criminal proceedings, surely the state deserves that penalty.
If you didn't know better, you might think the opinion favored the defense. You'd be wrong.
It's from the opening paragraph of the dissent by Judge Danny Boggs from today's decision in D'Ambrosio v. Bagley.
Put aside the legal merits of the case. Focus instead on something like fundamental fairness.
Ohio has been trying to kill Joe D'Ambrosio for some 23 years. It keeps fucking up the effort. Not by some technical glitch but because in its zeal to ensure that he gets sentenced to die it lies and cheats. Again and again. At every opportunity.
He's never had a fair trial. Never.
There's never been much evidence that, held up to serious scrutiny, suggests he was factually guilty of killing Anthony Klann (or even complicit in the killing). There's a substantial body of evidence that says he had nothing to do with it. At a fair trial 23 years ago, with all the evidence the state unconstitutionally and unfairly hid, D'Ambrosio would probably have been found not guilty. Which would have ended things.
Instead, 23 years later, after decades on death row, after cheating and cheating and lying and lying, after dirty trick after dirty trick (all by the Cuyahoga County prosecutor), a federal judge said that enough is enough and so did a panel of the 6th Circuit, by a 2-1 vote.
I'm not interested here in whether the majority or the dissent has the stronger argument in light of the habeas statutes and rules and the cramped decisions of the courts.
Maybe Danny Boggs has the stronger legal argument. Maybe not. But if the law says they should be able to take another shot at trying D'Ambrosio (and why in god's name would we think they'd do it honestly this time?), then Mr. Bumble is right and "the law is a ass."
More to the point, if the law says that, then the law is unconstitutional.
Habeas corpus is supposed to be a check on the government. When a defendant is convicted or sentenced and his constitutional rights were violated, habeas provides relief. Except, it doesn't. Why? Because, said the Supreme Court in Calderon v. Thomson, it
frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.
Got that? Enforcing constitutional rights "frustrates" the states' efforts to "honor" them. Which means, of course, that the way to honor the states for trying to honor constitutional rights is to pat them on the back and say "good try" when they state's don't. It's good for their self-esteem.
And really, we don't actually care if the rights are honored. We just think it's important to try and honor them. A for effort. Results? Hey, we're talking about criminals here.
Anyway, Calderon was 1998. That's so last century.
This year, in Harrington v. Richter, the court explained that habeas still has a use. it's there to
guard against extreme malfunctions in the state criminal justice systems.
Not just the ordinary cock-ups. We don't care about those. But when it gets extreme. When constitutional rights aren't just ignored but are trampled upon, ground into dirt, thrown into the chipper, spit out, and then the chips used as kindling. Then, maybe, things are bad enough that there's a role for habeas.
Whatever that role, it's not to ensure that constitutional rights are respected. The Court's made that clear. And it's certainly not to ensure some sort of fundamental fairness or decency or integrity in the system. At least, not according to dissenting Boggs, though he's really just channeling Antonin Scalia on that point.
Really. Here's Scalia fifteen months ago dissenting in Holland v. Florida.
The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.
When Holland came out, I quoted that passage and added this.
Hamlet observed thatConscience doth make cowards of us all.For Scalia, at least, conscience is far more dangerous than that. It's something we might actually follow. Were we to do that, who knows where it might lead.
And it's not just Scalia dissenting in Holland and Boggs dissenting in D'Ambrosio. It's the whole shooting match.
Look, I'm a lawyer. I believe in the Rule of Law. I think that statutes and rules shouldn't just be acknowledged; they should be obeyed.
But when the laws are designed (and this is how the habeas statutes and rules are designed) specifically to thwart constitutional rights, and when the judges and justices who interpret the habeas statutes and rules conclude that they should be read as narrowly as possible because Congress doesn't believe in habeas corpus and they don't believe in habeas corpus. when they all think the idea is to eviscerate habeas corpus because it's designed to protect even guilty people and to protect constitutional rights and they don't really believe in constitutional rights anyhow.
When all that, then the statutes and rule and the judges and justices and legislators and executives make of themselves more than the Consitution.
In the name of strictly construing the law, they reject it.
Due process, a judge I know has said, is violated when you say, "That's not fair."
Like habeas, due process is in the Constitution.
For the judges and justices who think they can write habeas out of the law because they don't approve of it. For the judges and justices who think that constitutional rights are to be honored but not enforced. For the judges and justices who believe that due process will always be satisfied because when you get right down to it, no process is due
For all of them. And for the legislators and executives who buy into the same idea.
The state knows it can't convict D'Ambrosio in a fair trial, so it's committed to giving him an unfair one. Danny Boggs seems to think it has a legal right to do that.
The Constitution says otherwise.
This time, the Constitution won.