A Criminal Enterprise

Montejo v. Louisiana (II) Cert Petition

Posted in Cases, News by Bidish J. Sarma on November 22, 2010

The cert petition asks the U.S. Supreme Court to take a second look at this important case involving a defendant’s right to counsel under the Sixth Amendment.  You can access the pleadings here (Cert Petition _ Montejo v. Louisiana II), here (State’s Brief in Opposition), and here (Reply to Brief in Opposition).

To see thoughts on why this is a crucial issue at this time, see Prof. Ron Sullivan’s post here.

Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL

Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

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…

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.

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).

Is There A Free-Standing Actual Innocence Claim?

Posted in Uncategorized by Robert Smith on October 18, 2009

See Previous Post: The Next Round for Troy Davis (discussing background of SCOTUS action on Troy Davis’ Original Writ Application)

On August 29, Judge William Moore of the United District Court for the Southern District of Georgia (who is on the receiving end of the Supreme Court’s transfer of Troy Davis’ Original Writ Petition) ordered Georgia to respond first (within 45 days) and Davis to respond (within 45 days of notice of Georgia’s filing). Among the issues to be addressed:

In his Petition for a Writ of Habeas Corpus, Petitioner has asserted a free-standing actual innocence claim. (Doc. 2 at 28-32.) The Supreme Court has never explicitly held that such a claim is cognizable under the Constitution, much less explicitly determined the appropriate burden of proof in such a case. See House v. Bell, 547 U.S. 518, 554-55 (2006), Herrera v. Collins, 506 U.S. 390, 417 (1993) . Accordingly, Petitioner and Respondent should be mindful to address not only the merits of this claim, but also whether such a claim is constitutionally cognizable and, if so, the appropriate burden of proof.

Georgia filed its response on Oct 9th. The State breaks into three categories its argument that there is no such thing as an actual innocence claim on federal habeas review:

1. The Court has not recognized such a right (which falls easily into the “no shit, Sherlock” category)

2. The parole board heard Davis’ claim and did a thorough job of considering it (including hearing from witnesses, etc)

3. Georgia has an independent process for evaluating actual innocence claims (unlike in Herrera) and Davis was able to avail himself of that process–the Extraordinary Motion for a New Trial– at any time.

…………..

This seems a wholly insufficient response. The first and second points are facially unpersuasive (I doubt that even the State is convinced by its argument that a parole board hearing is equal to a judicial hearing). The third point is more interesting. If a state were to provide co-extensive process, then I think there is a good argument to be made that federal courts would owe the same level of deference as under AEDPA. But the Extraordinary Motion for a New Trial employs procedural defaults (strict definition and timing requirements based on availability  of “new evidence”, an unfavorable view of recantation evidence, and, in this case, the possibility that an evidentiary hearing is not granted despite what has to meet any threshold for evaluation of new evidence).  But none of this answers the question of whether an “actual innocence” claim exists under the 8th Amendment.

I would love discussion on this issue (as it is necessarily amorphous and inevitably encompasses several competing considerations (individual fairness, finality, federalism, systemic integrity, etc.). Here are some knee-jerk preliminary thoughts:

1. Maybe there should be two standards. If a defendant can demonstrate his guilt phase innocence based on new reliable evidence by showing that no reasonable juror could find him guilty then he gets a new trial (this is the Jackson standard in habeas, but there is room to play with the would/could distinction. Would might be more accurate as it is closer to Strickland and Brady than to the Jackson insufficiency standard).

But, since death is different in kind than any other punishment and the possibility of future exonerating evidence is irrelevant once the person is executed(think Willingham), a showing of innocence (innocence of guilty, not innocence of the death penalty) by  clear and convincing evidence (as opposed to the more probable than not under Schlup or the “no reasonable juror” standard that should get you a new trial) then he cannot be executed.

It seems to me that this compromise balances the tensions between 1. finality 2. the difficulty in re-trying old cases with stale evidence 3. the individual’s liberty interest and 4. society’s confidence in the legitimacy and accuracy of the criminal justice system.

The language in House demonstrates that the Court believed House to be far away from any possible Herrara claim, but it might be that the best standard for not being executed (as opposed to getting a new trial) is  the “probably innocent” standard.

2. I like Souter’s argument in his dissent in Kansas v. Marsh, as I think it helps to rebut the argument that innocence has never been an independent 8th Amendment issue.

We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and Stevens, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.

3. My guess is that the historical landscape is distorted because of (1) the short time between conviction and execution and (2) the lack of the science, etc, to determine innocence after the fact. But if we look to the purpose animating the “better to let 10 guilty go free” or the “beyond a reasonable doubt standard” we find that the Framer’s had an abiding interest in not letting an innocent person be executed…. but they felt that (as we did until recently) any error came from imperfect process and so cementing solid constitutional procedures and protections would eliminate risk. But we know now that isn’t true. So if we abstract from the purpose of protecting the innocent we likely would find that executing the innocent (even those who have had a perfect trial) would defy original intent.

4. All that said, I wonder if there were cases at Common Law or in England where someone confessed to the crime after the trial and conviction of someone else. Perhaps there is some authority that contradicts the historical arguments made by Rehnquist, etc..

5. The most appealing counter-argument is the “serious disruption to the federal courts” that freestanding innocence claims will have. But I doubt it pans out. First, in the death penalty context, there are only roughly  3,200 death row inmates in the state and federal system combined. Out of these inmates, a sizeable percentage have (1) (small percent) plead guilty, but received death by 3 judge panel or penalty jury or (2) (big percent) admit guilt at trial and ask for remorse. So really..what rush to the courthouse. And if the Court adopts Schlup as the threshold for even hearing the claim, then are we really to expect more of an outpouring of petitions to federal courts than we see now under Schlup? And won’t most of them be easily disposed of anyway? Schlup discusses the minimal disruption in actual innocence cases. Also finality claims are at a low in those context and individual rights claims at a high.

I’ll end with these words from the Herrera dissent:

The execution of a person who can show that he is innocent comes perilously close to simple murder.” The dissent also talks about how Courts cannot complain about only having affidavit evidence when they truncate review by not holding an evidentiary hearing. I think this is from Schlup, but could be important in terms of casting doubt on the remaining testimony (based on physical impossibility evidence, etc, not presented at trial but that could be presented at an evidentiary hearing now that the science exists):  “In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.

Four questions:

(1) Is “innocence” mentioned anywhere in the AEDPA legislative history?

(2) Do any other questions recognize free-standing innocence claims?

(3) How many states have recognized an actual innocence claim based on the federal (or their respective State) constitution?

(4) Is there reliable polling data on how the public feels about allowing actual innocence claim without procedure defaults, etc?

This Week at the Supreme Court

Posted in Cases, News by Bidish J. Sarma on October 13, 2009

This Tuesday and Wednesday, I’ll be watching four oral arguments at the Supreme Court (assuming I can get in line earlier enough both mornings).

Professor Berman the Sentencing Law and Policy blog notes in this post that it will be a big week for sentencing followers:

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

To be argued Wednesday, October 14:

  • Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in “big” ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.