Gambling Is His Game

He shouldn't have done it.  I'm talking here about Maverick Ray and how he decided, just over six months after he got licensed, to defend Howard Wayne Lewis on charges of Capital Murder.*  Mark Bennett picked up on it and encouraged the world to join him in trying to convince the kid (Maverick) that he had made a terrible mistake and that he should back out now.  And while not the world, the commentariat certainly has with comments sometimes stern and sometimes soft, but consistently negative.  And so have fellow lawyer blawggers: Gideon and Scott Greenfield and Rick Horowitz and Daniel Partain and Keith Lee and not-lawyer blawggers Grits and Windy and . . . . Well, I know I've missed some.  All of them agree, as I say, that Maverick is making a serious mistake, is likely to get his client killed, and should either quit now or find an experienced and competent lawyer to take over an sit beside (or behind) him and study and learn.

Its a given then, it seems, to everyone but Maverick (and I suppose Lewis) that this is a horrible mistake.  But perceptions are often false, as those of us who take criminal law seriously know, and I think this one probably is.
Oh, not the perception that he shouldn't have done it.  That's absolutely right and true. (Quotidian true, don't start on me.)  I mean the perception that everyone but the two of them get it.  I'd bet there's a whole passel of supporting young lawyers and law students out there.  They believe they can do anything.  They needn't be taught and have nothing to learn because they already know it all.  Experience isn't worth shit.  They're smart and clever and know more than all us old fuddy-duddy types who've made our living in the trenches for however long. 

Besides, they've seen every episode of CSI wherever, and they have the internet and twitter and facebook and LinkedIn and whatever the latest internet toys are so they're primed and ready.  (And tan and buff, too, I suspect, but that's wholly irrelevant here.)

Anyway, as I was reading the comments on Bennett's and Greenfield's posts, I was struck by the number of folks who are sure that the kid is being underpaid and that the shortage of funds will be a major issue.  What struck me isn't that they're wrong.  It's likely he is being underpaid for capital representation.  I mean, virtually everyone who does a capital case, whether retained or appointed, is underpaid.  And virtually everyone who does a capital case struggles for the resources to do the job properly.  So the shortage of funds really will matter.

But

Here's part of a comment by Noah Clements on Greenfield's post.

This is the real issue (money and time) – and while it looks like Texas may have fixed some of its past problems in appointing counsel in capital cases with its criminal procedure rule (they had the famous issue where half the residents of Harrison County’s death row were defended by one guy who assured all that he was competent and effective), that’s certainly not the case everywhere. The Equal Justice Institute in Alabama estimates that “Nearly half of the people on Alabama’s death row were represented at trial by appointed lawyers whose compensation for out-of-court preparation was capped at $1000.”

As Scott points out in response, Noah missed his point, and I'm only quoting part of what he said because, frankly, I'm just using it as a lead in to my point.

Let's look at that first bit again: "This is the real issue (money and time)."

In fact, no.  The real issue is appointing competent lawyers and THEN giving them money and time.**  The latter are important, vital even, but competence requires more.

For all the blustering about how young Maverick undercharged and hasn't the funds for the necessary resources, I don't actually know that to be true.  And in the scheme of things, it doesn't matter.  What we know is that he hasn't the experience to do the job properly regardless of the money and regardless of how much time he's willing to devote to it.

The thing is, even when you toss experience into the mix you're still only working on the margins.  After all, having done a lot of stuff doesn't mean you've done any of it well or that you've learned anything much in the process.  So even after demanding experience, we'd want to add on an education component.

In Ohio, for instance, to be appointed in a capital case the lawyer has to have so many years in practice, so much trial experience (or appellate experience for an appellate appointment), and regular training at capital defense CLEs where there is to be, among other things, discussion of case law and voir dire technique and whole bunches of other stuff.  Which surely beats not requiring those things, but doesn't do anything to ensure that the lawyers on the list are actually competent.  And it certainly doesn't ensure that the alwyers who qualify are actually willing to do the work, actually care about the client, actually . . . .

And, in fact, too many of the lawyers who are qualified and certified and actually get appointments do terrible work.  And that has nothing to do with whether they get the necessary resources (time and money).

You can't make standards/requirements that will ensure competent representation.  That isn't to say we shouldn't have them, but that all they can really do is help at the margins.

And, frankly, the margins are all anyone much cares about (if they care even about the margins).

Duane Buck, sentenced to die in part (and really, this isn't even in serious dispute) because he's black.  Texas promised it would undo that and give him a fair shake.  It reneged. 

What?  Honor an agreement with a guy on death row? Fuck you.

At SCOTUS they said,

Gee, it's an outrage.  Que lastima.  Fuck you.

Back to the Texas Court of Criminal Appeals.  Where they said

Procedure.  Abuse of the writ.  We won't even consider.  Fuck you.

Calvin Burdine, sentenced to die when his lawyer (Joe Frank Canon) slept through major portions of his trial.  And the Texas courts (them again) said

Hell, he had a lawyer.  Fuck you.

And a panel of the Fifth Circuit said

Shit.  It's not like his lawyer was psychotic, which we wouldn't care about either.  Let him die.  Fucki you.

(Though en banc the court said, "Well, this time" though there were strong voices for "Fuck you.")

Mario Dion Woodward, sentenced to die by an Alabama judge after the jury voted 8-4 for life.  But really, he did a bad.  So the judge said (and yes, this is getting to be a theme)

Fuck you.

As Alabama judges have done 95 fucking times after juries said the guy should live - as opposed to the 9 times they choose life when the jury said to kill.  And the Alabama courts said, 

So what? Fuck you.

And SCOTUS said,

Gimme a break.  We can't be bothered.  Fuck you.

Though Sonya Sotomayor said they should indeed bother and tell Alabama to knock it off.

And in the next case, whatever it is, the courts will say, 

Yeah, but so what?  Who gives a shit.  There's a fair chance he's guilty.  Fuck you.

And nobody, really, nobody much calls them out.

Oh, sure, Alex Kozinski, Chief Judge of the 9th Circuit Court of Appeals, took a shot at prosecutors for Brady violations (hiding evidence favorable to the defense).

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

Which would be great if the court did something to put a stop to it.  But Kozinski was dissenting in United States v. Olsen.  As was Ohio's late Chief Justice Tom Moyer when he said he would have reversed a death sentence because of misconduct by the prosecutor.  He wrote in State v. Fears, in dissent.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

Because they won't.

Oh, there are explanations.  Legal standards and rules.  Harmless error tests that let judges say, 

Wouldn't have changed anything.

or 

Might not have changed anything.

or

But he should have said that before.

or

Fuck you.

Which is what they all are.

And after all, Congress enacted AEDPA which says that federal courts can't correct the constitutional errors of state courts unless they're really really really obvious and gross constitutional errors.  Because we don't really give a shit about constitutional rights or fair trials.  And then SCOTUS added a gloss in Harrington v. Richter, and maybe said (we're still hoping for some wiggle room in this) that if even one rational judge somewhere in the world could see things the way the state court did, why then, the feds won't interfere.  Justice Kennedy explained.

The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. 

. . .
 
As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

And, oh, those federal courts in their vigilance and independence don't get to consider any evidence that wasn't presented to the state courts, no matter how incompetently things were done in the state courts.  Because

Fuck you.

My guess is that Maverick Ray doesn't understand all this.  And if he does, he doesn't really believe it.  It takes years fully to grasp just how seriously the system works to screw our clients. And that's leaving aside open venality and cheating.  There are paths, there are things to do.  There is, as I say regularly, no death penalty case that cannot end up in life though not all of them can. 

Maverick Ray will almost surely provide what by any fair measure is ineffective assistance of counsel to Howard Wayne Lewis, because he probably will be under-financed and will lack the resources and doesn't have the experience or the knowledge and the nuance and the maturity.  And it likely won't matter because the courts don't really believe in effective assistance and even when they find counsel's representation horrifically deficient they commonly end up with a 

Fuck you.

So maybe Maverick really cares and will bust a gut and what ends up happening will drive him so crazy he'll give up criminal law.  Or maybe he'll just chalk it up and declare a win anyway.  

And Howard Wayne Lewis? I don't know why he hired Maverick.  Maybe they're related.  Maybe their grandmothers are best friends.  Maybe he thought a kid would bust a gut for him.  Maybe he was gulled by the self-gushing on the kid's website.  After all, he claims to be "Houston's Premier DWI Attorney," and if it's on the internet it must be true.  

F. Scott Fitzgerald famously said there were

No second acts in American lives.

He was wrong about American lives.  But he would have been very close to right if he'd been talking about capital defense.    

Howard Wayne Lewis almost certainly made a mistake in hiring Maverick Ray.  

Maverick Ray almost certainly made a mistake in signing on to be Lewis's lawyer.
 
It's not too late to undo those errors, though time's a wasting.  

And yet, and yet.  Texas has executed over 500 men and women.  Some have had able, experienced lawyers.  There are no guarantees.


----------------------
*The claim in some of the commentary and blog posts is Maverick was graduated from law school 6-8 months ago.  A quick check of the State Bar of Texas website says not so.  He was graduated last December and licensed in May of this year.  The difference is trivial in context, but facts do matter some.

**Maverick was retained, and much of Scott's post and its apparent motivation addresses issues about retained capital counsel.  But retained capital counsel, including retained baby lawyer capital counsel, is the exception.  I don't have numbers (anyone who does, I'd love to see them) but the vast majority of capital cases are defended by appointed counsel.

Kissing The Great Writ Good-Bye

They still refer to it occasionally as "The Great Writ" and "the bulwark of liberty."  They may remind us that it was at the heart of what happened at Runnymeade in 1215 when the barons made King John sign Magna Carta.  And from time to time they'll quote the second sentence of Article I, Section 9 of the Constitution, the so-called "Suspension Clause."

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The thing is, when they do those things today, at least when Congress does them, or the President, or the Five Who Decide on the Supreme Court, they're probably giggling, snickering, and elbowing each other in the ribs.  Enjoying the joke.

Because, really, they've done their best to write it out of the law while continuing to pay it lip service.  The idea, the fundamental idea, is that habeas corpus is the last gasp protection against being unlawfully detained.  When you're being held - pre-trial, post-trial, without trial - when you're facing a death sentence, and it's happened in violation of your rights under the federal constitution, you're supposed to have a remedy through habeas.

Except, you know, then the state courts would have to actually enforce the Constitution.  Or else the federal courts would just unconvict people right and left.  And the President and Homeland Security and DOJ and whoallever (how's that for a word?) would have to give up detaining people forever just 'cause they wanna.

And we can't have that.  That would be a recognition that we really have and obey the rule of law.  Which is dangerous.  And according to a couple of seemingly respectable law professors, Joseph Hoffman and Nancy King in a New York Times op-ed a couple of weeks ago, and a new book, it's damnably inefficient.  I mean, all that hard work for the federal courts which just don't grant relief anyhow.

Actually, their point is that habeas has worked.  See, we had to have it because the states didn't enforce federal constitutional rights.  Now, the states admit that they're supposed to enforce federal constitutional rights, so all is good (except in the rare cases of innocent people and folks on death row).

Forget about the innocent.  Habeas has never been available to solve their problem, so if we're going to stop use of the writ except for innocence cases, we're going to stop use of the writ altogether.  Their calculus shows that about 5,600 prisoners will get habeas relief.  The number who'll get it because of innocence is zero.  If we're after efficiency, dropping the innocent from the pool would seem to be the first step.*

  The real silliness in their argument is in the assumption that because states courts acknowledge that they're supposed to enforce federal constitutional rights, there's no need for the federal courts to do it.  

It's rather like saying that since I know that when my house is on fire I should call call the fire department, there's no actual need for the fire department to come and put out the fire.  After all, I acknowledge that it should be done.  Hell, even the fire department acknowledges they ought to come.  What more is necessary?  

Oh, yeah.  Someone to put out the damn fire.

Because, see, the state courts may acknowledge away, but they don't bother actually to enforce those rights.

And now there's AEDPA, the Anti-terrorism and Effective Death Penalty Act of 1996, which says, in essence, that it's OK for states not to enforce federal constitutional rights as long as their failure wasn't too "unreasonable."  Specifically, under AEDPA, a federal court may grant habeas relief to a state prisoner only if the prisoner has first successfully navigated numerous procedural hurdles, often without the assistance of counsel, and without a single misstep and then can satisfy an absurdly high burden.  Here's the relevant language from the statute.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

So the state court doesn't have to be wrong.  It has to be grossly wrong.  Federal courts are to be highly deferential to those state court judges.  Ron Kuby put it this way in a letter to the Times following the Hoffman-King op-ed

This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

And yet the Supreme Court, or at least the Five Who Decide, have been doing their best to tighten those habeas screws lest someone actually manage to get relief.

All of which brings me to Doody v. Ryan.  Here's the first paragraph of the majority opinion by Judge Rawlinson.

This case emerged from a horrendous crime — the murder of nine individuals, including six monks, inside a Buddhist temple. The ensuing investigation ensnared Petitioner Jonathan Doody, a seventeen-year old high school student. Although Doody eventually confessed to participating in the nine murders, he challenged his confession, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary. In our opinion reported at 596 F.3d 620 (9th Cir. 2010) (en banc), we agreed on both counts. Specifically, we concluded that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate. We also held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary. See id. at 622-23. We concluded that the state court rulings to the contrary were an unreasonable determination of the facts and an unreasonable application of governing Supreme Court precedent. See id. at 636, 653. The United States Supreme Court granted certiorari, vacated our judgment and remanded this case to us for further consideration in light of  Florida v. Powell, 130 S. Ct. 1195 (2010). See Ryan v. Doody, 131 S.Ct. 456 (Oct. 12, 2010) (Mem.). Having reviewed the facts and circumstances of this case in light of Powell, we reaffirm our prior rulings.

That's strong language, but if that's all there were, I wouldn't be writing this.

See, here's the problem.  The dissent thinks that what the state court decided (Miranda  warnings were just fine, confession not coerced) may have been wrong, but it wasn't grossly enough wrong to matter.  After all, it's OK for Doody's rights to have been violated as long as the state didn't think they were.

Again, if that were all, I still wouldn't be writing this.

It's not all, because Judge Rawlinson, and in a concurring opinion Chief Judge Kozinski, laid out some important principles.  First Rawlinson:

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of  “once more pay[ing] mere lip service to AEDPA and then proceed[ing] as though it does not exist.”  Dissenting Opinion, p. 5860. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Now Kozinski:

Not for the first or last time, we’re asked to consider what it means for an opinion of a state court to be “unreasonable” under 28 U.S.C. § 2254(d). I write separately because I believe that deference is neither a blindfold nor a bandana.

. . .
Even under AEDPA, however, it’s not possible to bend the record far enough to sustain the state court’s opinion, if habeas corpus is to  “stand[ ] as a safeguard against imprisonment of those held in violation of the law.” Richter, 130 S. Ct. at 780. The dissent is correct that the Supreme Court has repeatedly overturned this court for insufficient deference. Dissent at 5852-53. But the Court has also said that AEDPA’s “standard is demanding but not insatiable” and that  “ ‘deference does not by definition preclude relief.’ ” Miller-El v.  Dretke, 545 U.S. 231, 240 (2005) (alteration omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
. . .
We defer when state courts reasonably adjudicate claims of federal right, even if we think they’re wrong. Richter, 131 S. Ct. at 786. But where, as here, a state court doesn’t act reasonably, deference comes to an end. After all, we retain “authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with” Supreme Court precedent.  Id. Yes, the standard is a “difficult” one to meet, id., but difficult doesn’t mean impossible. When police take a butcher knife to Miranda, a decision so “embedded in routine police practice to the point where the warnings have become part of our national culture,” a federal court can’t sit idly by. Dickerson, 530 U.S. at 443.

The three opinions in Doody collectively run 116 pages.  They're filled with interesting tidbits and disagreements.  If you have a passion for understanding just when a confession can be said (by judges) to have been coerced, you might want to read it all.  If you care about how "clarification" of Miranda warnings can turn into a warning that is, in Kozinski's words, "affirmatively misleading."  Those things are the substance of the opinion and the court does or doesn't get them right.

What I've quoted, though, is its heart.  The court absolutely got that right, though there's a fair chance it will be reversed again by SCOTUS.

Still, if the writ is to mean anything, if habeas is to retain any significance, it must have some applicability.  Congress wants it to have none.  The Five Who Decide are doing their best to give Congress what it wants.

Judges Rawlinson and Kozinski are fighting, here, a rearguard action.  Their case, and our rights, are seriously endangered by the fantasy that habeas serves no real purpose.  Because it does.

The point of the writ is to hold the government to its proof and to insist that the rules - and with them the rights of the people - actually matter.

It's about the Rule of Law beating out the Law of Rule.

Or we really might as well all just pucker up.

---------------

*The death row thing is different.  The percentage of those on death row who get habeas relief is actually fairly high.  Hoffman and King don't try to account for that, but the reasons are fairly clear.  First, their cases are probably taken a bit more seriously by the federal courts than those of people who are just incarcerated.  Second, and far more importantly, most of those who get into federal court are represented by counsel.  Habeas is all procedural and substantive quagmires.  Lawyers, and especially lawyers with resources, make a real difference.

h/t to Anna and Kathy and Hilary at Dicta who reminded me that I wanted to write about Doody.

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.

I

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.

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*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.

When Innocence Isn't Enough

I grew up watching Raymond Burr as attorney Perry Mason.  Every week on TV he'd take on another case, defend another innocent person charged with murder.  Every week on TV, he'd prove his client innocent, usually getting the actual killer to confess during cross-examination or to jump up in the courtroom gallery and confess.

I've been doing this work for a lot of years now.  I've never seen an innocent man cleared when the guilty party jumped up in court and confessed.  I've never heard of it happening in the real world.

Frankly, most of the people who are arrested and charged with crimes aren't all that innocent.  Oh, they may not have done just what they're charged with (there's a lot of overcharging, for leverage, out of meanness, because they can), but they've mostly done something reasonably close.  That's a good thing, of course.  You wouldn't want to live in a society where most people who are arrested didn't do it.  Nor would I.

But the factually innocent do get arrested.  They do get charged.  Sometimes they get convicted.  

When we get the charges dismissed, get a not guilty, get a conviction reversed, it's always a great feeling.  When we do it for someone factually innocent, it's even better.

Still, I don't know any criminal defense lawyer who wants to be Perry Mason.  None of us relish the prospect of representing the innocent.  

And stressful as it is, the law makes it worse.  That presumption of innocence you learned about in Fourth Grade is a sham.  One judge I know used to begin every voir dire session by telling the prospective jurors,

None of us here believes the defendant is guilty.

That's nonsense, of course.  If the prosecutor doesn't believe the defendant guilty, he has no business prosecuting.  And, frankly, the judge and the court reporter and bailiffs and sheriff's deputies, they all think the defendant did it.  So, in all likelihood, does defense counsel.  And certainly the jurors begin believeing it.

So the presumption is a sham.  And it's short lived.  Once there's a guilty verdict, it's over.  If the jury says the defendant did it, the burden formally shifts to the defendant to show why he should get some relief.  And the law's stacked against him.

The trial verdict is presumed correct.  The appellate courts twist and bend and fabricate to affirm it.  And then there's AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.  The law was enacted precisely to make it harder for people convicted of crimes (and in particular those sentenced to death) to get relief.  It's rigid, authoritarian.  AEDPA requires federal courts to acquiesce in constitutional error because, hey, why not?  It's just too much to expect, or require, the state courts to obey the Constitution.

And, of course, AEDPA has no innocence exception.  Nor, perhaps, does the Constitution.  Here's Antonin Scalia bemoaning

the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate.

As I write this, the Troy Davis hearing is over.  Did he provide sufficient proof of his innocence?  And if so, then what?  Briefs are due later today.

The hearings on whether innocent people are executed are due to begin in November before Judge Fine.

And yesterday, the 9th Circuit (yes, that 9th Circuit) said that it's not enough to be innocent.  You have to assert it in time.  Otherwise, AEDPA says, you should take the punishment you don't deserve.

We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

That's Lee v. Lampert. The court doesn't even throw a sop and suggest it's bothered by the continued imprisonment of the innocent Richard Lee.  

After all, he filed months late.

h/t Mike at Crime & Federalism.

Negligence - With Cooties

So you're sitting in prison.  You're on death row.  You shouldn't be there. 

You wouldn't be there, probably wouldn't have been convicted at all, except that the government hid the evidence that, before he died, the guy you supposedly killed described his killer - and the description doesn't come close to looking like you.  If you'd had that information at trial, you'd probably have been found not guilty.  Even if you were convicted, the jury's doubt would likely have been enough to spare you the death penalty.

The state courts don't care though.  Close enough for government work.  The jury could have convicted you and sentenced you to die, anyway.  "Strap him down and bring out the needles," they say.

But you're not done.  There's habeas corpus.  You can ask the federal courts to intercede.  After all, you had a federal constitutional right to evidence favorable to your case.  The government had a federal constitutional obligation to turn it over to you.  The Constitution, Magna Carta, almost 800 years of Anglo-American legal system, practice, and law are on your side.

And it's a death penalty case.  Your life is on the line.  Literally.  This is your last chance.

Your lawyer blows the deadline.  There was one year from the date state proceedings against you were over for the lawyer to file a petition for a writ of habeas corpus in federal court.  The year comes and goes without a filing.  Six weeks later, the lawyer files.

"Sorry," says the federal court.  "Your lawyer blew the deadline.  You must die."
But wait, you cry (now through a new lawyer, or maybe doing it yourself), how is that fair?  I'm not the lawyer. I didn't blow the deadline.  I didn't even pick the lawyer.
Tough.  The lawyer's error is yours because the lawyer is your agent.

If that seems harsh - well, it is.

If that seems stupid - well, it is.

If that seems evil - well, it is.

And if that seems a recipe for disaster - well (all together now) it is.

Welcome to the world of habeas corpus.

In your civil case, if the lawyer screws up, you sue the lawyer.  If you can prove that the lawyer cost you, the lawyer (or the lawyer's malpractice carrier) is supposed to pay what you lost.

In your ordinary criminal case, if the lawyer screws up, you may be screwed, but you can sue the lawyer and maybe get some cash out of it.

In your death penalty case, if the lawyer screws up, you get killed.

That's not entirely true.  Lots of people, in fact, get off death row because they were able to show that their lawyers were incompetent and screwed up in majestically awful ways.  But that requires that the later lawyers did everything right.

The hopeless problem mostly comes at the end of the line, in federal habeas corpus.  That's the place where all the I's need to be dotted and the T's crossed.  That's the place where a misstep at any time - in federal court or earlier - means the client dies.

One of those places for a misstep is in getting the petition filed on time.  Under the clumsily named Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the defendant has one year from the end of direct appeal to file a petition for writ of habeas corpus.  Various things can stop the clock, so calculating the due date is sometimes tricky, but it's rarely all that hard. And if there's a doubt, and the client's life is on the line, the sensible lawyer files early rather than take a chance.

Still, lawyers blow that 1-year deadline with remarkable frequency.

You'd think basic fairness would kick in to save the client.  Sometimes it does, in the form of something lawyers call "equitable tolling."  Roughly, the idea is that when the habeas deadline rule would be too harsh, fairness should toll the habeas clock.  The problem is that AEDPA doesn't say there is such a thing as equitable tolling.  And while the courts have generally found it can occur, they've been . . . .  

Well, it's really the story of Albert Holland.  Here's the plot as Kate Wevers laid it out on the scotuswiki.

In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful: the Supreme Court denied certiorari, thereby triggering the start of Section 2244(d)’s one-year limitations period, on October 1, 2001. Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings. Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied. The Florida Supreme Court did deny relief, and issued its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.
Although Holland had repeatedly written to Collins asking about the state court proceedings and the AEDPA limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion. In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief. One day later, he filed a pro se federal habeas petition.
The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights. On appeal, the Eleventh Circuit affirmed. It assumed without deciding that Collins had been “grossly negligent,” but, in its view, “no allegation of lawyer negligence . . . can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling” unless there are allegations of affirmative misrepresentations, bad faith, dishonesty, divided loyalty, or mental impairment on the part of the attorney. 

Norm Pattis has a less dispassionate summary.

So Mr. Holland sat on death row, in the eye of the needle, if you will. His lawyer ignored him. A filing deadline for post-conviction relief loomed. The client pleaded with the lawyer to file something on time. The lawyer ignored the client. The deadline passed. By application of the Antiterrorism and Effective Death Penalty Act of 1996, the client was supposed simply to die at this point. His agent, the lawyer, had erred after all.

Well, yeah.  And as Norm adds

Of course such a result is unconscionable. A lawyer's mistake costing a client his life? Analogies to medicine break down here. It is not simply the case that some clients, like some patients, die regardless of what a doctor does. Whereas medical errors often cannot be corrected, legal errors can. When a lawyer fails to meet something as basic as a filing deadline it simply makes no sense to hold the client accountable for the error. I'd like to think that even a moral imbecile understands that.

Holland asked the Supreme Court to hear the case, and they agreed.  Oral argument was held March 1.  The case is Holland v. Florida, and this morning the Court issued a decision.  By a vote of 7-2 they reversed the court of appeals and almost gave Holland the right to have the federal district court decide whether Holland actually suffered some harm that would take away (at least temporarily) his death sentence.

Yeah, I did say "almost."

To understand why, you need to get just what the Court did and did not do.  And that means you need to understand that while equitable tolling is about fairness, the courts don't think it should be about real fairness, certainly not the sort of thing Norm was talking about.

Here's Scalia, in dissent (joined in most of the dissent, including this part, by Clarence Thomas), explaining (pretty much accurately) the state of the law.

Even if [AEDPA] left room for equitable tolling in some situations, tolling surely should not excuse the delay here. Where equitable tolling is available, we have held that a litigant is entitled to it only if he has diligently pursued his rights and—the requirement relevant here—if “‘some extraordinary circumstance stood in his way.’” Lawrence v. Florida, 549 U. S. 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005)). Because the attorney is the litigant’s agent, the attorney’s acts (or failures to act) within the scope of the representation are treated as those of his client, see Link v. Wabash R. Co., 370 U. S. 626, 633–634, and n. 10 (1962), and thus such acts (or failures to act) are necessarily not extraordinary circumstances.

Get that?  If the lawyer screws up, it's treated as the client screwing up, and if it's ever possible to get around that, there have to be two things.

1. The client must not be confused or clueless, unable to understand.  Rather, the client must be diligent and energetic, actively trying to get the lawyer to do her job properly.
2. The lawyer's failure can't be the lawyer's fault.  There must be an intervening "extraordinary circumstance" that prevented the lawyer from acting properly.  Perhaps 9/11 would have qualified since the country pretty much ground to a halt that day.  (In fact, I had an amicus brief due in the Supreme Court that day/  The printer was on the way to the Court to deliver the brief when the Court shut down.)

But really, Scalia said (Thomas didn't join this part), there's no such thing as equitable tolling under AEDPA.

The Court accepted all of that.  Justice Breyer, writing for 6 of the 7 in the majority (Alito wrote separately, and only for himself), said that there is indeed such a thing as equitable tolling under AEDPA.  And it's just like Scalia said it is, only different.

The client must be "diligent" in asserting her rights.  And if the lawyer is just negligent, it's OK to kill the client.  Maybe it's OK if the lawyer is grossly negligent.  Maybe it's OK if the lawyer is really, seriously, grossly negligent.  With cooties.  But the court of appeals in this case demanded too much.  Yes, it said, there's equitable tolling.  But the "extraordinary circumstance" can't be negligence.

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

Breyer doesn't actually say why or how that's too rigid a requirement.  And he doesn't explain what should count as an "extraordinary circumstance" (that's what Alito takes a stab at in his opinion).  He doesn't even say that Holland's lawyer's misbehavior qualified.  Instead, he (and by "he" I mean the majority of the Court), sends the case back for the 11th Circuit Court of Appeals to consider whether under the correct, less rigid standard (whatever it might be) Holland is entitled to equitable tolling.

Mirriam Seddiq, writing at Not Guilty, suggests that non-lawyers might want to read Holland.

I think the non-lawyers who read this blog might be interested in it as well, since it gives you a glimpse into the terrors of trial.  Yes, people might be terrible awful, but how do we know if their lawyers are worse?

That last question is really the one, isn't it.  How do we know?  And do we care?

It's back to Norm's point.

When a lawyer fails to meet something as basic as a filing deadline it simply makes no sense to hold the client accountable for the error. I'd like to think that even a moral imbecile understands that.

Understands?  Perhaps.  But acts?  That's another story.  None of the nine were willing to go there.  It's just that some were more adamant about it, and maybe a shade more willing to face up to it, than others.

Here, once again, Scalia.

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.

Hamlet observed that

Conscience 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.  Maybe then we wouldn't kill clients just because their lawyers committed plain old garden-variety negligence.

Jefferson was speaking of slavery when he said,

I tremble for my country when I reflect that God is just.

He might, of course, have been speaking of habeas corpus.

Fortunately, we have a Court that won't let conscience temper justice.  

On that, Scalia can rest easy.

And who know, maybe the 11th Circuit will give Holland a chance to be heard on the merits of his habeas petition.

Fair Trial? You Don't Need No Stinkin' Fair Trial

In a variation on the balls and strikes problem, what seems simple, straightforward, and perhaps self-evidently clear in the Constitution only seems that way to people who aren't lawyers.  Lawyers know better.  Lawyers know that the simplest constitutional language, whatever it may mean, pretty surely isn't what it says.

Take the Double Jeopardy Clause of the Fifth Amendment.

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

That seems clear enough.  You can't be tried twice for the same crime.  Except, of course, that you can.  Not always, but often enough.

I wrote about this at the end of March, the day before the Supreme Court held oral argument in the case of Renico v. Lett.  The issue in Reginald Lett's case, at least on the surface, is whether there was "manifest necessity" for a Michigan trial court to declare that the jury in his murder trial was hopelessly deadlocked after four hours of deliberations.  (For purposes of today's discussion, the details don't matter.)

If it was manifestly (which means "obviously") necessary (which means "necessary") for the judge to conclude that the jury was deadlocked, that there was simply no chance that the jury could unanimously decide whether Lett was guilty beyond a reasonable doubt, then he might be guilty beyond a reasonable doubt and could be tried a second time for the same murder.  (Just accept this; it's the law.  Don't try to make sense out of it.)  The Michigan Supreme Court said that it was close enough for government work.  The 6th Circuit Court of Appeals said it wasn't.

This morning, the U.S. Supreme Court gave the final answer.*

Lett lost, which really wasn't much of a surprise.  Chief Justice Roberts wrote the opinion which was joined by the usual suspects (Scalia, Thomas, and Alito), the man who holds the constitution in his hands (Kennedy), and one of the moderates (Ginsburg).**

Like I say, no surprise.  No big deal.  The law of double jeopardy remains exactly as it was yesterday.  

But this isn't a post about double jeopardy.  This is a post about fundamental fairness and the rule of law.  This is a post about how we (that's the societal "we') truly don't care.  

So we need another piece of background.  Lett is a case under AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.  The purpose of AEDPA (at least, it's relevant purpose) was to put a stop to federal courts overturning death sentences just because the courts, the prosecutors, the cops, or the defendant's own lawyers violated the Constitution.  See, habeas corpus is supposed to ensure that folks are not improperly tried or imprison or executed.  And the Constitution pretty clearly says that neither Congress nor the courts nor the president can just eliminate habeas corpus.  So they cooked up AEDPA to try and make it as close to meaningless as they could.   (They continue to work at that effort, since AEDPA hasn't fully stopped federal courts from finding that states violate the Constitution.

Here's how it works, as explained by our chief justice, in Lett.

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of . . . clearly established Federal law.” §2254(d)(1).

We have explained that “an unreasonable application offederal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U. S. 362, 410 (2000). Indeed, “a federal habeas court may not issue thewrit simply because that court concludes in its independent judgment that the relevant state-court decision ap-plied clearly established federal law erroneously or incorrectly.” Id., at 411.

See how neat that is.  The federal courts aren't interested in whether the trial court did the right thing.  They aren't even interested in whether he abused his discretion.  (An abuse of discretion, by the way, generally means that even if he got the got the law grossly wrong, his decision wasn't entirely irrational.)  Rather, they care about whether the state court that said the state judge didn't abuse his discretion was itself grossly wrong.

You could park an army in the space between that degree of wrongness and getting it right.

Still aren't sure?  Here's the last paragraph of Roberts' opinion.

AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts. Whether or not the Michigan Supreme Court’s opinion reinstating Lett’s conviction in this case was correct, it was clearly not unreasonable. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

There you have it.  It doesn't matter if the state properly applied the Constitution.  It doesn't matter if they get it right.  You don't after all, have a constitutional right to your constitutional rights.  You just have a right to not have them violated so grossly that it is an additional gross violation to ignore it.

It was Congress and Clinton that slammed that door with AEDPA.  But the Court was heading in that direction on its own.  Because, really, you can't let just anyone demand justice.  Where would we be then?

I said this was a post about fundamental fairness and the rule of law.  For the past 20 years or so, they've been systematically shutting the doors of the courts.  Sometimes Congress leads the way (AEDPA and the Military Commissions Act, for instance).  Sometimes the Court leads the charge  (Ledbetter v. Goodyear Tire & Rubber Co.).  Sometimes the Court shuts the door while pretending to leave it open (Safford Unified School District No. 1 v. Redding).  Sometimes one branch of the system ends up checking the actions of another branch.  But not always.

And sometimes, not often, but sometimes, they make it explicit.

And so, today, along with explaining that you don't have a right to your constitutional rights, the Court demonstrated just how serious it was about shutting the courthouse doors.  Scotusblog has the story.

Beginning tomorrow, the Supreme Court announced today, the public will no longer be able to enter the Court’s building by the main entrance at the top of the steps on the front.

------------------

*Final because it's last, not because it's more likely to be right about the law or facts than any other court.  The point was made by Justice Jackson, concurring in Brown v. Allen.

We are not final because we are infallible, but we are infallible only because we are final.

**Despite what the media, the Republicans, and a few Democrats would have you believe, there are no liberals on the Court, and have not been any for a very long time.

Calculated Cruelty

Albert Holland had a problem:  His lawyer.

Holland was (and is) on death row in Florida after a 1991 conviction.  By 2001, he'd lost his direct appeal in the Florida courts and on October 1 of that year, the U.S. Supreme Court announced that it would not hear the case.  The next step was to go back into the Florida courts to seek some sort of collateral relief (essentially, an effort to get at things that were not part of the trial court record).  But there was a deadline out there that concerned Holland.

Under AEDPA (the Anti-Terrorism and Effective Death Penalty Act), a death row inmate has exactly one year to ask for habeas corpus relief in the federal courts.  For Holland, that year (you actually count it by days, so 365 days) began on October 1, 2001.  The thing is that once he asked the Florida courts for collateral relief, the one year clock would be stopped until they were done with his case.  So Holland had until October 1, 2002 to file his petition for habeas corpus unless the clock got stopped, and he needed to seek collateral review.

About a month after Holland lost in the Supreme Court, Florida appointed Bradley Collins to represent him on collateral review.  So far so good.  But Collins didn't act.  He sat on the case.  For months.  While the habeas clock ticked away.

Holland worried.  He told Collins, repeatedly, that all issues needed to be raised in state court and that his federal habeas petition would need to include all those issues and to be filed on time.  Collins assured Holland that all was under control.  Holland didn't believe it.  He tried to get Collins removed and new counsel appointed, or even to represent himself.  The Florida courts refused.

Ultimately, Holland lost in the Florida courts.  Collins didn't tell him.  Nor did Collins file for habeas relief.  The time for filing ran out.  Still Collins didn't tell.  Eventually, Holland learned.  He wrote and sent off the next day a handwritten petition for writ of habeas corpus.  It was dismissed. 

Your lawyer blew the deadline.  You're out of luck. 

The case is Holland v. Florida, and they argued it in the U.S. Supreme Court Monday morning. The issue is whether the gross negligence of Holland's lawyer should be a basis for equitable tolling.  That's legalese for asking whether when the lawyer screws up badly enough, and when the client's been pushing and pushing to have it all done right, that habeas deadline can be extended. Or do we just kill the client?

I'm not just being flip.  Ask Roger Coleman.  Ooops.  You can't.  He was executed.  His lawyer blew a deadline in the Virginia courts.  It was almost understandable.  What it wasn't, it turns out was excusable.  Sandra Day O'Connor began her opinion for the Supreme Court in Coleman v. Thompson with words to chill the heart of a criminal defense lawyer:

This case is about federalism.

Yeah, I know Coleman was guilty.  I also know that he never got the federal review he should have and that at the time the Supreme Court blew him off, there was substantial basis to think he might have been innocent.  It didn't matter.

Frankly, there's a fair chance nothing will matter for Holland, either.  The Court decided a long time ago that negligent lawyering wasn't a basis for relief.  Gross negligence isn't much different.  Breyer kept asking about earthquakes and hurricanes.  He wondered what would be appropriate if the lawyer were kidnapped.  Florida's lawyer was steadfast: no relief.

The other capital development of some note in the Court on Monday was the announcement that it would not hear Harbison v. Little.  Harbison was a challenge to Tennessee's lethal injection procedures.  The district court said that they were unconstitutional because there were insufficient safeguards against the condemned inmate suffering excruciating pain.  The Sixth Circuit reversed.  

And now it's done. 

A friend asked what it means.  Here's what I wrote.

My best guess, and of course, that's all it is because I have no inside information, is that SCOTUS has no interest in wading back into the world of lethal injection.  They said their piece.

And while lawyers can (and do, and I have) tear it apart and find in it things that give them room to keep litigating, the bottom line in Baze really was that lethal injection is perfectly constitutional in theory, and as supposedly applied by protocol.  If a state demonstrates that it cannot or will not follow its protocol, then there might be an available challenge in that state, but that should be resolved by the state agreeing to get its act together.  I suppose if a state decided to do lethal injection by shooting drugs into the eyeball, that would be a different enough scenario that Baze might not cover it, but that doesn't mean SCOTUS would oversee what the lower courts did to it.

So, yeah, I think LI litigation is now almost entirely going to be about state law and state procedures (the administrative procedure act cases, for instance).

Frankly, the only way I see SCOTUS getting back into this within the next 5 or 10 years is if the state loses a case in the lower courts.

Really, it's all just the usual struggle.  We can kill them.  Or we can care about fairness and dignity and integrity in the system.

I had just recently moved to Ohio and I was talking with a judge I'd never met.  I didn't know anything much about him, nor did he know anything much about me.  He asked if I was more in the due process or the finality camp.  I said that finality without truly fair and full process is just calculated cruelty. 

Actually, I don't think I said that.  But I wish I had.

Because it's true.

Welcome to the 21st Century in the United States.