A Criminal Enterprise

Louisiana Executes Gerald Bordelon

Posted in Cases, News by Bidish J. Sarma on January 8, 2010

The State of Louisiana took Gerald Bordelon’s life yesterday.  Mr. Bordelon volunteered for execution.  After a jury convicted him of first-degree murder at the guilt phase of his capital murder trial, he asked his trial attorneys not to present any mitigating circumstances at the penalty phase – the phase where the jury had to decide whether the convicted murderer would be executed, or would serve a life-without-parole sentence.  After the jury sentenced him to death by execution, Mr. Bordelon waived his right to challenge that sentence in front of the Louisiana Supreme Court.  The Louisiana Supreme Court nonetheless issued an opinion in his case that ultimately dismissed the appeal.  The Court indicated that it was legally obligated to decide whether Bordelon was competent to waive his appeals and also to determine if his sentence was proportionate.  In October, the Court cleared the path for today’s execution, and ruled that Mr. Bordelon is competent to waive his rights to an appeal, and that the death sentence in this case is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Generally, it isn’t uncommon for death-sentenced defendants to “volunteer” for execution by waiving their appeals.  According to the NAACP Legal Defense Fund, roughly 12% of defendants waive appellate review.  Yet, Bordelon was the first person to successfully volunteer in Louisiana since the death penalty was reinstated here in 1976.  And, while every case in which someone “volunteers” presents complex legal, ethical, moral, and philosophical questions, Gerald Bordelon’s case is worth thinking about carefully.

From my perspective, Mr. Bordelon’s execution is unsettling because it was not the product of an adversarial process, and the American legal system requires that final adjudicated judgments be informed by the zealous advocacy of lawyers in adversarial positions.  Instead, Mr. Bordelon’s death was the result of multiple, compounded perversions of our criminal justice system.   

First, the jury that sentenced Mr. Bordelon to death did not hear any mitigating circumstances.  According to the Louisiana Supreme Court, “[t]he penalty phase . . . began with a waiver by defendant of his right to present mitigating evidence . . . .”  Without mitigating evidence, the jurors had incomplete information about the person the State implored them to condemn.  Not everyone who commits a first-degree murder should be executed.  Indeed, the United States Supreme Court has held that some individuals cannot be constitutionally executed.  Mitigating evidence must be presented in order for the jury to make an accurate assessment of whether this particular defendant deserves the harshest penalty available.  Was Bordelon mentally ill?  Did he suffer abuse throughout his childhood?  Would he be able to live peacefully in a controlled environment?  Did he feel remorse for the crime?  These and other critical questions were left unanswered at trial.  The penalty phase did not pit two opposing parties against each other in the way we all learn how American trials are supposed to unfold.  The jurors sat and watched, as the State’s lawyers were not challenged when they asked the jury to order Bordelon’s execution.  Not surprisingly, the jury returned a death sentence.

Second, the Louisiana Supreme Court found that the defendant was competent to waive his appeals even though no party took the position that he may not be competent.  To determine competence, the Louisiana Supreme Court remanded the case and asked a sanity commission to make a finding upon which the Court could later rely.  The Court made the work of this sanity commission sound grave: “When a defendant asserts that he is eligible for execution because he has terminated all further legal proceedings, the consequences of an erroneous determination of his competency to make that decision are so severe that the record of the proceedings conducted on the sanity commission’s findings must show by clear and convincing evidence that he has the capacity to make a knowing, intelligent, and voluntary waiver of his right to appellate review of his capital conviction and sentence of death.”  What the Court did not say is that these commissions do not typically produce conclusions in a non-adversarial setting.  When neither party provided reasons to question the inmate’s competence, the work of the commission was basically done before it even really began.  I don’t suggest here that Mr. Bordelon was not competent to waive his appeals (although the Supreme Court made the competency standard sound a whole lot more difficult to meet than it really is), but point out that the entire process by which this execution was approved does not comport with our system’s purported notion of justice.

Third, the Court’s comparative proportionality review is far from meaningful.  In the Bordelon opinion, the Louisiana Supreme Court insisted that it had an independent duty to conduct its “Rule 28 Review” of the death sentence “to determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”  As we’ve established here, the Court has not conducted a serious proportionality review in roughly three decades.  And, the way that Louisiana Supreme Court Rule 28 is written and the way that records are kept in Louisiana, the Court simply cannot make an effective comparative proportionality review without the full adversarial participation of both parties.  In Bordelon, the Court yet again: only truly evaluated cases that resulted in death sentences (and not those that came back with life-or-less sentences); cherry-picked death sentences from other jurisdictions without looking at the life-or-less cases from those jurisdictions; and failed to look into the mitigating circumstances present or absent in those other capital cases.  It is unclear whether the Court enforced the Rule 28 command that “[d]efense counsel shall file a [sentence review] memorandum on behalf of the defendant . . . .”  Moreover, the Court never identified or reviewed any mitigating circumstances because none were presented at trial.  How could the Court meaningfully compare “considering both the crime and the defendant” when it had utterly incomplete mitigating information about the defendant in this case?  Perhaps an intellectually honest and rigorous proportionality review would have revealed that Mr. Bordelon’s sentence was proportionate.  However, the breakdown of the adversarial process and the Court’s unwillingness to look beyond what was presented to it made a meaningful proportionality review impossible.

One could certainly argue that Mr. Bordelon was rightly allowed to waive his appeals.  And, maybe that’s true.  Even if the system functioned the way it was designed to in this case, Gerald Bordelon may still have been executed today (in accordance with his wishes).  However, the system did not work in the manner intended, and that is what troubles me.  The judges and lawyers involved ignored fundamental legal principles to facilitate the result that all interested parties apparently wanted in the end.  When we sacrifice principle for expediency, we undermine the very institutions which stand upon those principles.  Once again, the death penalty proves to be arbitrary and unprincipled above all else.

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“The Numbers Speak”

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

Jeff Gamso at “Gamso – For the Defense” put up a thoughtful post that is responsive to the question I posed in my entry on the Gallup poll numbers.  You can visit check out his insightful analysis here: http://gamso-forthedefense.blogspot.com/2009/11/numbers-speak.html.

 

Do People Actually Care If the State Executes Innocent Defendants?

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

In October, Gallup released figures regarding its most recent poll on the death penalty.  The report is available on the Death Penalty Information Center website here.

The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).”  While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.

According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’”  As the report points out:

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case.  Justice Scalia, joined by Justice Thomas dissented from the order.  In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).

But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large.  Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved.  Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless?  How could one simultaneously hold both beliefs?

Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma.  Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment.  The Gallup numbers undercut the force of this assumption.  Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty.  The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…

The Right Wing Recognizes the Need for De-Criminalization

Posted in Uncategorized by Bidish J. Sarma on November 24, 2009

I was pleased to read this piece, entitled “Right and Left Join Forces on Criminal Justice” by Adam Liptak in the New York Times today. The article documents an important trend in the politics that govern the criminal justice system: many right-wing politicians and activists have taken a position against over-criminalization. Liptak effectively explains the varying conservative interests that have come together under the “anti-criminalization” banner:

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states. . . . Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

This trend stands in sharp contrast to the “tough-on-crime” conservative line that emerged in the 1980s and swept over the country. The realpolitik need for politicians to support tougher criminal sanctions and the death penalty became self-evident in the past two decades. Criminal punishment, for many years, looked like a one-way ratchet (see this post, explaining “just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences . . . will barely create a political ripple.”): sentences could only become harsher and the scope of behavior considered criminal could only expand. But, times have apparently changed. For now.

Ideologically, it makes sense that individuals skeptical of government power should hesitate to entrust life and liberty to the same State that they believe is incompetent to administer social welfare programs, regulate the economy, and efficiently tax its citizens. If conservatives harbored such doubts about the government, why did they so willingly give the federal and state government greater power in the criminal context? Why did they support more expansive criminal laws and harsher criminal sentences? Why did they profess such unyielding confidence that the government protects the individual’s right to a fair trial, and does not wrongfully convict and execute innocent people? The simple answer: political expediency.

I firmly believe that the current conservative alignment with liberal thinking on criminal justice issues is a temporary marriage of political convenience. But, it represents an important opportunity to correct some of the harm that has been done in the past 30 years. So long as the economy is a shambles, right-wing politicians can point to overcrowded prisons, burgeoning criminal court dockets, and massive government deficits and say – “see, we need to try something different.”

The Times article indicates that some conservatives have declared the shift in viewpoint to be fundamental. For example:

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Though I wish the shift was truly ideological in nature – as Meese suggests it is – this statement strikes me as nothing more than political posturing. Now is an opportune time to oppose “big government,” and the conservatives know it. Certainly some ideologues will continue to sing the same tune even if the economy rebounds or anti-crime legislation becomes politically expedient again. However, the emerging coalition is realistically a fragile one. I certainly hope that we make progress now.

As far as the death penalty is concerned, I am encouraged by the state legislatures that have sought to cut costs by eliminating capital punishment or limiting the circumstances in which it can be sought. My hope is that we can make enough progress to signal to the Supreme Court that our “standards of decency” have evolved as far as the Eighth Amendment is concerned, and that the perverse institution known as the death penalty will be done away with forever. Though anti-death penalty advocates must first win the battle in the states, those victories are not permanent; instead, they are subject to the will and whims of political opportunism. The fight can only end once-and-for-all in a court of law. Meanwhile, advocates of change in the criminal justice system should seize this moment to push forth the policies that will shrink government budgets, encourage rehabilitation and re-integration, and decrease criminalization.

What Does the Constitution’s Text Say About Juvenile Life Without Parole Sentences?

Posted in Cases, News by Bidish J. Sarma on November 10, 2009

Yesterday, the much-awaited and highly-anticipated oral arguments in Sullivan and Graham took place at the Supreme Court.  The transcripts of those arguments are available here and here.

Though the Justices focused much of their attention on the arbitrariness that line-drawing inherently entails (as well as some procedural problems presented in Sullivan), little attention was given to the text of the Eighth Amendment.  Professor Berman at Setencing Law and Policy has this timely post on his blog.  I wanted to share a sizable portion of it as food for thought:

I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan’s punishment under these circumstances is “cruel and unusual.”  

Part two of the textual analysis seems easy: Joe Sullivan’s sentence is surely “unusual.”  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references “unusual” (as opposed to “unique”) punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan’s sentence satisfies the second prong of the Constitution’s punishment prohibition.

The claim the Joe Sullivan’s sentence is also “cruel” could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more “cruel” than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

Juvenile Life Without Parole Cases Argued Today

Posted in Cases, News by Bidish J. Sarma on November 9, 2009

This morning, the Supreme Court heard oral arguments in Graham v. Florida and Sullivan v. Florida.  These cases have received lots of attention in the media.  Several articles, op-eds, and editorials are linked to on this Blog’s Twitter sidebar.

Oral argument transcripts should be available later today, and we will certainly review them and provide our own impressions.  In the meantime, I wanted to share something from an Atlanta Journal & Constitution Op-Ed that struck me as fairly powerful:

What is striking about these cases, Sullivan v. Florida and Graham v. Florida, is they entail the permanent denial of freedom for juveniles who, though they committed serious crimes, did not commit homicides. Such sentences for juveniles express more than just the view that these children are beyond rehabilitation. In effect, they are a societal admission that we do not believe we are capable of teaching children to do better. When we sentence a 13-year-old or 17-year-old to life in prison without any chance of parole, we not only convey our views on the child’s actions, we also make a powerful statement about ourselves. Such a penalty, when given to a child, says we do not believe that child can ever change. And because it is our job as adults to mentor children, we are conceding that we don’t have confidence as a society that we will provide the necessary guidance to ensure that child becomes a productive member of society. Why do we have such little faith in ourselves, and our children?

For a look at some of the arguments at play, check out our earlier posts on the subject here and here.

More Scrutiny Needed in Texas, Where Death Penalty Continues to Run Rampant

Posted in Cases, News by Bidish J. Sarma on November 6, 2009

Sorry for the radio silence the past few weeks.  Things have ramped up at work for all of the bloggers here, but we hope to reconnect with the blog more fully very soon.

In the meantime, I wanted to bring attention to this AlterNet piece.  Most importantly, it points out something about the Willingham saga worth repeating here:

Perry’s role in this continuing injustice should be cause for a national uproar at least as big as the one that attended Mark Sanford’s dalliance in Argentina or Elliot Spitzer’s patronage of prostitutes. What could be more sordid than hushing up an illegitimate state-sanctioned killing? What more obvious abuse of power exists? Yet one can easily read the country’s major papers and faithfully watch TV news and barely hear a word about what’s happening in Texas.

Why this is not an issue of national importance is a question that frustrates me every day.  But, the death machine keeps working in Texas.  Our friend at StandDown notes that:

Texas carried out its 20th execution of 2009, tonight in Huntsville.  It was the state’s 443rd execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation’s post-Furman executions.  To date, there have been 43 executions in the nation this year; 1,179 since 1977.

For more on the Willingham/Perry issue, check out our prior post here.

Criminalizing the Vulnerable: Asylum seekers an easy target

Posted in News by Sophie Cull on November 3, 2009

Since 2001, ‘asylum seeker’ has become a dirty word in Australia. ‘Boat people’, ‘illegal immigrants’ and (used far less frequently) ‘refugees’ are terms used interchangeably to refer to people arriving on Australian shores by boat in an effort to seek asylum. And now ‘terrorist’ has been added to the list.

West Australian backbencher Wilson Tuckey recently stated that terrorists could be masquerading as asylum seekers on the unauthorised boats that reach Australian waters. Fear-mongering has been the most successful policy used by Australian politicians to resist influxes of ‘boat people’ over the last decade since the Child Overboard incident.

While Tuckey’s comments have sparked outrage amongst human rights groups and received backlash from the Prime Minister, there is no shortage of Australian politicians, media outlets and citizens who share his fears. Public debate has once again flared over how to deal with asylum seekers.

There is one interested party who often remains almost entirely silent in the midst of these recurring debates: those people seeking asylum. Locked in detention with no materials to identify who they are, no ensured legal representation and little means of communication with the outside world, only statistics can speak for these people.

So GetUp, a grass-roots community advocacy organization that allows Australians to get involved in holding Australian politicians accountable, has put together a short Myth-busting Factsheet to educate us Aussies on how big of a ‘threat’ asylum seekers really are. It’s a short but interesting read: http://www.getup.org.au/files/campaigns/asylum_myths_factsheet.pdf.

Perhaps the most compelling myth-busting fact is that those ‘queue jumpers’ arriving by boat are actually the most likely to be genuine refugees:

There is also data to suggest that people who arrive by boat are more likely to be legitimate refugees. Of asylum claims made by people who arrive by aircraft, 55% are rejected. Only 2-15% of claims made by people arriving by boat are denied.

Yet the war of words continues to criminalize these silent few who come with nothing, asking for help. It can only be hoped that researched and rational thinking on this subject speaks with a louder voice than the likes of Wilson Tuckey.

Court-Watching: Smith v. Spisak

Posted in Cases, News by Bidish J. Sarma on October 21, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Spisak case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

The State’s cert petition to the Supreme Court raised two issues for the Court to resolve: (1) Whether the Sixth Circuit’s ruling that the trial court’s jury instructions violated Mr. Spisak’s constitutional rights contravened the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) Whether the Sixth Circuit’s ruling that the defense lawyer’s closing argument rendered his assistance ineffective contravened AEDPA.  When the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.  See Hudson v. Spisak, 128 S. Ct. 373 (2007) (noting that three liberal Justices – Justice Stevens, Justice Ginsburg, and Justice Breyer – would deny the petition for writ of certiorari).  By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.

To the extent facts about offenders influence how courts view the legal issues presented in a case, Mr. Spisak has effectively made himself as unsympathetic as possible.  The State’s brief on the merits highlights some of the key facts from the notorious Ohio case:

Respondent Frank G. Spisak, Jr. killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. . . . He said that his actions were motivated by his hatred of gay people, blacks, and Jews, and he specifically targeted the campus of Cleveland State University. . . . During his days-long testimony, Spisak . . . identified Hitler as his spiritual leader. . . . Other cues during the trial reinforced the depravity of Spisak’s beliefs. Before trial, Spisak grew a moustache and shaved it to resemble Hitler’s. And on cross examination, after the prosecutor read into evidence a violent letter from Spisak that was laced with racist epithets, Spisak declared “HeilHitler” and performed the corresponding salute.

With these facts in the background, Richard Cordray, the Attorney General of Ohio, began his oral argument on behalf of the State.  He first addressed the Sixth Circuit’s ruling that the trial court’s jury instructions violated the rule set forth by the Supreme Court in Mills v. Maryland.  Justice Sotomayor immediately asked the first question, pointing out an oddity to the Sixth Circuit’s ruling:

JUSTICE SOTOMAYOR: Why? I — I have been trying to figure out why the State court would know in its decisionmaking that Mills commanded a different result when Mills was issued after the State denied its petition for rehearing.

MR. CORDRAY: It’s a bit of a conundrum, Your Honor, because Mills was issued after the Ohio Supreme Court’s decision here, but before it became final on direct review when cert was denied by this Court in March of 1989.

Kent Scheidegger over at Crime & Consequences elaborates on the conundrum here (http://www.crimeandconsequences.com/crimblog/2009/10/spisak-new-rules-and-justice-s.html), and appreciates the signal that Sotomayor may be willing to enforce AEDPA “vigorously.”

As the argument proceeded, Mr. Cordray explained why the State believes the Sixth Circuit’s ruling is a new extension of the rule enshrined in Mills.  One might wonder if Mills itself is in trouble with this Court, or if the Court will give a green light to states that want to stop the practice of instructing the jury about the effect of one juror holding out on a death sentence:

MR. CORDRAY: At the time, the instructions pushed the jury toward unanimity one way or the other. Do the aggravators outweigh the mitigators or do they not? Since that time, the Ohio Supreme Court as a matter of practice has been willing to go further and instruct the jury, or have the jury be instructed, that if a single one of you feels that the aggravators do not outweigh the mitigators, that will preclude a death sentence. But that has never been constitutionally required by this Court. It is an extension of Mills v. Maryland that has never been so held by this Court, and in fact is a source of a — of a significant overwhelming majority of circuits the opposite way.

The State’s argument proceeded on to the second issue – the defense counsel’s closing argument.  Based on the questions the Justices asked Respondent, it seemed that the State’s argument here was well-received by most Justices.

Mr. Michael Benza argued on Mr. Spisak’s behalf.  At the outset, Chief Justice Roberts and Justice Scalia jumped on his claim that the defense counsel’s closing argument constituted ineffectiveness assistance.  Even Justice Breyer seemed to endorse the trial counsel’s strategy to agree that his client was a cold-blooded and unsympathetic murderer, but argue that he is clearly mentally ill and therefore should not be executed:

JUSTICE BREYER: What would you have done? I mean, I’m — I’m not experienced in this. But I mean, I have heard the other side and I have read the argument. And it makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: I’m going to kill a lot more. He sounds totally bonkers. And — and he says to the jury, I can’t tell you that what he did was not aggravating; it was terrible. I can’t tell you that there’s anything here that should make you feel better about him; there is nothing. But we are a nation of people who are humane and our law says don’t put a person to death when he fills with his nuttiness that third prong, which is a lower standard of insanity than I had to meet. But it’s clearly met and here are the experts; I point to their testimony, and that’s what they said. So be humane.

In what seems to be a rare occurrence, Justice Scalia agreed with Justice Breyer, and went even further: “I thought it was a brilliant closing argument. . . . This was an extraordinary trial, and it seems to me that the — that the technique that — that counsel used to try to get mercy for this fellow was — was the best that could have been done.”

After Mr. Benza defended his position, he and the Justices were sidetracked for several minutes on an interesting question about AEDPA deference.  I explore this discussion below.  That peripheral discussion became so involved that Justice Ginsburg had to remind the Respondent that he had a limited amount of time: “Mr. Benza, you might want to use what time is remaining to deal with the other issue, which we haven’t talked about at all.”

On the Mills issue, Mr. Benza gave a straightforward answer to the timing conundrum originally raised by Justice Sotomayor:

Teague says that the decision for application of a newly established law or a new established constitutional rule is predicated on the denial of direct appeal, which in this case would be the cert denied by this Court of the direct appeal of the case, which happened in 1989, a year after the decision in Mills was handed down.

He then argued that the Ohio jury instructions were confusing because they would lead a reasonable juror to believe that there must be unanimity on the existence of a mitigating factor before it could be considered and given effect by any juror.

As this AP article points out, “most of the justices were skeptical of Benza’s arguments.”  There is little doubt about how this case will come out.

Although not central to the dispute in this case, Mr. Cordray raised a suggestion that later became the source of a major discussion between the Justices and Mr. Benza.  In arguing that appellate courts must give deference to trial court decisions under AEDPA, Mr. Cordray explained why the trial court’s summary disposition of the ineffective assistance claim warranted deference under the two-prong Strickland test:

If the court simply gives a summary affirmance or summary disposition and doesn’t specify which prong, I think the Court has to give deference under both prongs, because the alternative would be to give deference under neither prong, which is inconsistent with the — the AEDPA statement that we have to did defer to an adjudication on the merits by a State court.

Mr. Benza, however, argued that the trial court’s summary adjudication did not trigger AEDPA’s deference requirement:

MR.BENZA: We have no idea whether they decided that there was deficient performance, but no prejudice — that there was, in fact, deficient performance, but no prejudice, that this was not deficient because it was reasonable strategy. It is also possible that the lower courts were misapplying [the law].

I found this line of argumentation fascinating because it implicates the vast majority of decisions made by trial courts in habeas review.  Rather than give detailed reasons for their rulings, many trial courts deal with claims summarily.  I have always found it troubling that such cursory explanations become essentially unreviewable on appeal.  Apparently, the Respondent’s lawyer in this case agrees.  Justice Scalia does not, however:

JUSTICE SCALIA: When we — when you don’t know what a lower court has done, the rule is you assume the best, not the worst. Isn’t that the standard rule of review?

But, Mr. Benza elaborated on the problem as it applied to this case: “The problem that you have in that is, when you try to apply AEDPA to this particular claim, you don’t know how the state court, in fact, decided this case.”

Justice Breyer explained that the Respondent’s position has far-reaching implications:

JUSTICE BREYER: How — how does that work? Certainly, it’s a fairly common thing, that the defendant will make — let’s say, 20 arguments, maybe he would even number them. And it’s fairly common to find a court of appeals in a state that says, as to argument number 17, and then they characterize it, we reject that argument.

Mr. Benza took the (gutsy) position that:

MR. BENZA: I would — I think the issue then would become that, when a state court chooses to summarily deny, without evaluation, an explanation of the merits of the claim, that, when it comes to habeas review, the constraints of AEDPA are lifted.

The Justices took exception with this proposition, and worried that it would overburden lower courts to require that they elaborate on all of their decisions.  Yet, if giving reasons for rulings is the essence of providing justice, Mr. Benza’s proposition does not seem so crazy to me.

Court-Watching: Padilla v. Kentucky

Posted in Cases, News by Bidish J. Sarma on October 20, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Padilla case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

According to his merits brief to the Supreme Court, the Petitioner, Jose Padilla, arrived in the United States in the 1960s and is a permanent resident here.  In 2001, Padilla was arrested and charged with felony trafficking in marijuana after he was pulled over with more than 1,000 pounds of marijuana in his commercial truck.  When he asked his defense lawyer if there were any immigration consequences to pleading guilty to the felony, the attorney said that he “did not have to worry about immigration status since he had been in the country so long.”  The crime, however, is a deportable crime that subjects Padilla to deportation.

In his petition to the Supreme Court, Jose Padilla raises the question of whether the Sixth Amendment right to the effective assistance of counsel protects him from his attorney’s misadvice.

The heart of the dispute is whether the Sixth Amendment right to the assistance of counsel in all “criminal” prosecutions includes a guarantee of effective assistance in advising the client on the collateral consequences of that prosecution.  In American law, immigration matters are considered ‘civil’ in nature, even though they can lead to deportation.  Here, the Petitioner argues that the current standard that governs ineffective assistance of counsel claims (Strickland) evaluates the misadvice claim based on if the counsel’s performance is deficient and prejudicial to the client.  The deficiency prong of the Strickland is met when the counsel’s actions are objectively unreasonable.  The State, however, argues that civil collateral matters fall beyond the scope of the Sixth Amendment, and that misadvice on collateral matters does not give rise to a claim of ineffective assistance.

In addition to the two parties slated to appear, the U.S. government made a (somewhat surprising) appearance.  Though the government supported ‘affirmance’ of the ruling below in favor of Kentucky, the argument demonstrated that the government did not support the Respondent’s legal reasoning.

Stephen B. Kinnaird of the firm Paul, Hastings argued the case for Mr. Padilla.  In a clear effort to pitch to the Roberts’ Court purported affinity for judicial minimalism, he began by articulated the “narrowest ground” for the resolution: “The narrowest ground on which this Court may reverse the Kentucky Supreme Court is to hold that mis-advice claims are cognizable under the Sixth Amendment.”  Justices Roberts, Alito, and Ginsburg all immediately asked questions about what conduct this principle covers – for example, does it extend to advice on whether the defendant should take the stand?  The concern is how the Court should decide which consequences receive Sixth Amendment protection and which do not.  Mr. Kinnaird said, “Your Honor, the issue here is simply the legal standard that applies to any of — any of these claims, and it would be the same two-part standard under Strickland v. Washington.”

Justice Kennedy raised a distinct concern – he worried that the court had no means to insulate its proceedings from ineffective assistance.  Drawing on principles in contract law, he asked whether the court could require the defendant to assume the risk of collateral consequences by including a warning in the colloquy that happens when the defendant pleads guilty:

You take the risk of any mis-advice, any misunderstanding, with respect to collateral conduct. That’s your risk, and it’s part of the guilty plea. If we said that, would that foreclose this kind of argument in your case?

Kinnaird maintained that the Sixth Amendment right to counsel put unique duties on the lawyer that do not similarly bind the trial court.  This response didn’t seem to satisfy Kennedy, who said, “Well, then there is no way the government or the court can protect itself against the — these consequences . . . .”

Justice Alito raised the last major strand of concerns with the Petitioner’s argument.  He worried that public defenders who handle hundreds of cases each year will have trouble remembering exactly what advice they gave their clients when they are hauled in to testify on ineffective assistance hearings.  Alito seemed particularly worried in the context where the defendant decided to plead guilty because there is no trial proceeding to refer to.  Mr. Kinnaird insisted that these proceedings would look like other Strickland hearings.

After the Petitioner closed, Michael Dreeben appeared on behalf of the United States.  He took the position that the Sixth Amendment does not impose upon defense counsel a duty to advise his client about collateral consequences, but that “mis-advice given by defense counsel on a material collateral consequence to a defendant” is a different concern. In a back-and-forth exchange with Dreeben, Chief Justice Roberts probed this position.  He posed the following question:

CHIEF JUSTICE ROBERTS: Won’t — won’t your test result in a net loss to defendants? I assume if this is adopted as a rule, the affirmative misrepresentation rule, then every lawyer is going to say what you said they should say: I’m here for the criminal case; I’m not telling you anything about anything else, as opposed to saying, sitting down and saying: Here’s what you need to know. And in most cases we expect the lawyer to do a professional job. If you have got an alien, he is going to tell him: Well, what — you know, this will cause you to be deported. Instead, every lawyer now is going to say: I’m not giving you any advice about anything else.

Dreeben responded,

No, I don’t think that it will lead to sort of defensive malpractice type of counseling where lawyers do not do the job that they feel that they should do, and experience tends to support that.

Alito riffed off of the Chief Justice’s question, arguing that indigent immigrant defendants will meet with public defenders who will tell them to go hire an immigration lawyer to answer their immigration questions.  Essentially, the conservative justices tried to spin economic arguments that undermined the liberal concern with the well-being of indigents on their own terms.

Once Mr. Dreeben finished on behalf of the U.S. government, Mr. Wm. Robert Long, Jr. argued for Kentucky.  The questions to the Respondent noticeably came from the ‘liberal’ Justices.  Justice Sotomayor – who had been silent until this point – fired the first question.  At the same time, she demonstrated her understanding of the considerations at play in a criminal prosecution:

Counsel, a plea is something more than: I’m guilty. It is a strategic decision not to put the government to its burden of proof. Your definition of voluntariness suggests that there is only one component to it, do I know what my rights are, as opposed to, do I know what they are and making an informed decision to waive those rights.  Your articulation of the rule leaves out the second component: Am I making an informed decision to waive those rights?

Justice Breyer attempted to corner Mr. Long by getting him to concede that had he been the lawyer and knew his client would be deported, he would have given informed his client.  As usual, Justice Scalia took the chance to clash with Breyer at oral argument:

JUSTICE SCALIA: Well, but assuming it’s a norm and that all lawyers do it [tell the client of the consequences], including those that know diddly about immigration law, the norm is to give bad advice. And here — here the norm was met, right?

After this line, Justices Stevens and Ginsburg asked a few more questions about what the State means when it says the Sixth Amendment does not apply to “collateral” consequences.  The bench then cooled, and the State finished the final few minutes of its presentations with relatively few questions.

In his rebuttal, Mr. Kinnaird may have made a statement that could snipe one of the conservative Justices and win a narrow opinion in his client’s favor:

CHIEF JUSTICE ROBERTS: So you can make a claim when the lawyer disavows the knowledge on the question? In other words, he is trying to be helpful, but he also warns the defendant.

MR. KINNAIRD: Yes. Under the broader rule, you would have a Strickland claim. It would be very hard to prevail on that because you would have to show that it was unreasonable for him not to investigate . . . .

Essentially, the Petitioner’s rebuttal was a timely reminder that Strickland is not exactly the easiest standard for defendants to meet.  Maybe that reminder will be enough to satisfy those Justices concerned that the floodgates to ineffective assistance will be opened if the Court recognizes that the Sixth Amendment imposes some obligations on defense attorneys to understand collateral consequences of a criminal prosecution.

My initial take from the oral argument was the same as Adam Liptak’s.  As he wrote in this piece in the New York Times:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

Others have also commented on the oral argument.  SCOTUSblog’s take is here; law.com’s review is here.

I find this case extremely fascinating because it has implications in a number of important contexts:

  1. It directly implicates the scope of the Sixth Amendment right to counsel.  After listening to Chief Justice Roberts emphasize the importance of the attorney-client relationship (in the corporate context) in the Mohawk oral argument, I wonder how this Court will treat that same relationship in the criminal (and collateral) context.
  2. This case might turn out to touch on how we think about the rights of immigrants and whether we believe they can access a panoply of rights in the U.S. Constitution.
  3. Padilla could also have serious implications for immigrants in new communities in the U.S.  As immigrant populations continue to grow in parts of the country that are historically unfamiliar with cultural diversity, a ruling in Mr. Padilla’s favor will create a stir for local defense bars.  On the other hand, if the Court rules in Kentucky’s favor, immigrants will become more vulnerable to unfair policing practices that could result in their deportation.
  4. The outcome in this case will also give insight into whether the Constitution entails some notion of client-centered advocacy.  If the Court recognizes that the Sixth Amendment right to effective assistances governs Mr. Padilla’s claim, there will be (at least a limited) constitutional command for client-centered advocacy that recognizes that “collateral” issues have constitutional significance.
  5. Finally, a ruling in Mr. Padilla’s favor could cast some official doubt on the farcical notion that immigration proceedings are merely civil/administrative in nature.  It is this notion that underpinned the Supreme Court’s ruling in INS v. Lopez-Mendoza that an immigrant does not have the right to counsel at deportation proceedings.  Though we may never see that decision revisited, we could see an emergent recognition that immigrants deserve more serious protection under our Constitution and laws.  (For more on the civil/criminal distinction as applied to immigration cases, check out this post).