Z
The Legal Monthly
Vol. 1 No. 5 Read Z the Blog at http://zlegaltimes.blogspot.com/ December 2006
The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information
The Elections are over, the punditry is over and done with, the new Congress is set to convene. Whether the Democrats will be able to do anything the Republicans could not do is the question: You all know the old saw about the new broom. Just one more thing, “going commando” is the new big thing. Britney does it, and George Clooney says he never does, unless he is “fully waxed.” This is where the picture is worth many thousands of words.
The current issue brings you several new cases in the area of habeas corpus of course, a few books I've read and reviewed, and a mishmash of other stuff. We'll keep following the thread of AEDPA unconstitutionality and the Irons case, particularly interesting because of the likely wide impact it could have, if it has legs. Texas Parole issues are of special interest to me and a reader has asked about it, so I'm going to do a bit more reading and focus on it in the January issue. Meanwhile, you can pull up an article by Doc Berman on the future of parole at Sentencing Law and Policy (the blog). The courts have been taking on issues of procedural default, actual innocence and newly acquired evidence, independent state-law grounds and exhaustion of remedies, terrorism habeas cases, IAC (ineffective assistance of counsel) and Brady violations and, 42 U.S.C. 1983 which I find interesting as a method of private enforcement of the law, aka the “constitutional tort,” government secrets and electronic surveillance. Mostly, true to the form and intent of AEDPA, courts are denying relief. The few cases in which the writ is granted continue to be instructive gems.
The federal government recently settled a wrongful arrest case for 2 Mil with an Oregon man but not all cases are so easily won, or lost, if you can look at this from the point of view of the taxpayer. It is not often noticed that Americans will pay every last penny of that settlement via taxes. The other thing we don't take notice of enough is abuse of prosecutors' powers. Our not noticing, together with a favorable climate in the courts has resulted in virtually unfettered prosecutor “discretion” and egregious abuses that go along with that power. We'll learn more about that in this issue.
Cases involving prosecutor misconduct, perjured testimony, and newly acquired evidence are of great interest to me because they raise the possibility that there has been a wrongful conviction. Many, many wrongful convictions, in fact. DNA cases resulting in irrefutable clinical evidence of innocence are the tip of the iceberg. On just the topic of begetting wrong results Bill O'Reilly has a new book, Culture Warrior. Being of Irish descent, he fancies himself a modern day “warrior”. I'm putting that in quotes because Conan was a warrior, Romans were warriors, samurai (see Clint Eastwood's new movies they're great -- Flags of Our Fathers and Letters from Iwojima), military men/women and athletes are warriors. O'Reilly just exploits the weak, disenfranchised, and defenseless. While he has a remarkable story of “success” he admits he really means financial success. Making a pile of money is pretty much all that he has done. Success for him has come at the expense of truth. He tells the regular American guy what he wants to hear: “liberals” gays and godless activist judges are changing the world and not for the better. This is the new “sexploitation” scam. Sex sells, crime sells, so hey! What's better than jumping on sex criminals and godless judges, and while they're at it throw in “liberal” lawyers, gun-haters, and gays and baby-killers? This is the conservative, religious, right-wing formula for success in action. Too bad the Iraq war intervened and now the Democrats get to check the health of their own agenda. Hope they don't blow it.
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Brave, and smart, of the rabbi in Seattle who retracted his threat to sue over Christmas trees and wreaths at SEATAC airport but they should have let him put up the Menora, and if anybody else wanted a holiday scene, include them too. After all, it is “our” money that is being spent on it. O'Reilly claims this is not about liberals v. conservatives, so he uses S-P “secular progressive” -- in other words sans religion and not just liberal but wildly so. Disingenuously, he has written that the culture war is “much more complicated than that” but from the every day examples he talks about it is obviously, precisely, and clearly about liberals and conservatives. There is simply no other name-tag that fits. Using the term S-P doesn't change the facts.
What does that have to do with wrongful convictions? Professor Angela Davis of the Washington College of Law The American University (my alma mater) explains that courts created a climate in which prosecutorial “discretion” is complete, the line blurred between that which is legal and not legal as to what prosecutors may or may not do, including suborn perjury, fail to disclose evidence of innocence and other facts and evidence tending to show defendant's innocence, and evidence that may be used to impeach, and on and on.
A case in point regarding Newly Acquired Evidence and False Testimony leads the Circuit roundup this month. But first, the hot news from SCOTUS is that Justice Clarence Thomas wrote the main opinion in Carey v. Musladin (05-785), and had the full support of five other Justices. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that might impair trial fairness. Also, on December 5, the Supreme Court issued its opinion in the case of Lopez v. Gonzales. A Common Sense Definition (of "trafficking" in the INA) prevailed over a very Legalistic argument. Even if the State makes a crime a felony the INA's language is controlling. The conclusion is worth quoting: “In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.” Surprising, or not surprising, that what appears to be a VERY simple and straight-forward, as in fastball down the middle, question went all the way to the Supreme Court? But let it be noted the lone dissent, by Justice Thomas. He continues fighting the bad war on drugs with the get-tough approach; but let's do that someplace else, and not make bad law over it. Is he just making a political statement? Was there some horse trading in these decisions?
They would have to do that to me: the Fifth Circuit just released its decision in Nelson, a Penry type capital case involving Texas jury instructions not giving "full effect" to all mitigating evidence. The state argued this is a Jurek (428 U.S.) case erroneously contending Jurek is inconsistent with Penry (according to the majority). The decision runs 161 pages and is split, with 6 dissenters led by Judge Edith Jones. Huge, considering SCOTUS granted cert on issue and already had remanded Nelson.
Evenstad v. Carlson, No. 05-1467 (8th Cir. 11/30/2006) (8th Cir., 2006). - (court was forced to keep in mind the prosecution did not actually know A.M.-2's trial testimony was false because Evenstad conceded the point, and the case was affirmed because the new testimony failed to pass muster under the standard of review): The Supreme Court has not addressed the issue of whether a due process violation occurs if a conviction is based on perjured testimony which was unknown to the prosecution at the time of trial, (cit. om.). Furthermore, there is a circuit split regarding which standard applies in federal cases dealing with these facts. (fn om.). The majority of circuits including the 8th Circuit, 'absent a finding the prosecutor knew of perjured testimony, require the petitioner to show the false testimony "would be likely to result in an acquittal."' (citation omitted). Other circuits, like the Minnesota courts, apply a "possibility" standard granting relief whenever the discovery "might" have produced an acquittal. (citations omitted).
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While “standards” are important, the circuit split is significant for obvious reasons not the least of which is that the Supreme Court's supervisory authority could be invoked. Justice is unevenly distributed when different cities and states (regions and circuits) use different standards in deciding cases. That cases involving possible prosecutorial errors or omissions get reported at all is also significant. Much more needs to be done to place the spotlight on prosecutor practices to keep them honest, because wrongful convictions cause a loss of faith in the system, a lack of respect for justice, and encourage vigilantism. Most of us want to know that the guilty are being convicted properly, most of all so that the innocent are not convicted and the guilty do not go free. The deterrent function of the law suffers as well because more potential criminals feel that they “can get away with it.”
Procedural Default Challenged, Grant of Relief Affirmed: James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) shows instance where the trial judge could have been just a bit more careful. A. Resolved a question of procedural default (Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes). B. [U]nder even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.
Joseph v. Coyle, No. 05-3111 (6th Cir. 11/9/2006) (6th Cir., 2006) On question of sufficiency of evidence: In light of the clear line of precedent requiring proof that Joseph was the actual killer, the equally clear precedent that the actual-killer element requires proof that the defendant personally inflicted the death blows in a situation where (as here) the defendant and a co-conspirator are both present at the scene, and the total absence of such proof (accompanied by the state's concession that it could not offer such proof, to boot), we conclude that the Ohio Supreme Court's decision was an unreasonable application of the due-process standard of Jackson v. Virginia.
Writ conditionally granted. Lyell v. Renico, No. 04-1106 (6th Cir. 12/1/2006) (6th Cir., 2006) Lyell presented federal polling and fair-trial claims to the state court of appeals. Lyell also raised state-law challenges to his conviction, however, and the state court of appeals addressed Lyell's claims only in state-law terms in its decision. In the absence of a ruling on the merits of these federal-law claims, we must give fresh review to Lyell's polling and fair-trial claims under the United States Constitution, (cit.om.). Is the court going against the grain of the 5th Circuit court, and setting up a split, in giving “fresh” review to federal claims not reviewed on the merits?
Just in, an important decision from the Maryland Court of Special Appeals (intermediate appellate court): Rejecting state's claims, finding (A) that appellee was barred from asserting complaints as to (1) the advisory nature of jury instructions, (and whether trial court properly instructed jury) and (2) the court's failure to give proper instruction regarding jurisdiction, (and whether trial court properly instructed jury) and (B) post-conviction court did not err in finding that trial counsel was ineffective. STATE OF MARYLAND v. RAYMOND LEON ADAMS, No. 617, SEPTEMBER TERM, 2005 --- Due Process Clause of the Fourteenth Amendment of the United States Constitution; Article 23 of the Maryland Declaration of Rights; advisory jury instructions; jury as judges of the law and facts; In re Winship, 97 U.S. 364 (1970); Stevenson v. State, 289 Md. 167 (1980); Montgomery v. State,
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292 Md. 84 (1981);
Because of the firmly rooted and well-established legal precedent holding that article 23 of the Maryland Declaration of Rights did not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution, appellee, whose petition for a writ of certiorari was denied on December 2, 1980, 15 days before the court of appeals issued its decision in Stevenson, did not waive his right to challenge the constitutionality of Article 23, providing that, in criminal cases, the jury is the judge of the law and the facts; although the Supreme Court of the United States recognized that a definition of reasonable doubt violated due process for the first time in Cage v. L.A., 498 U.S. 39 (1994), the decision of the United States Court of Appeals for the Fourth Circuit, in Jenkins, made clear that the unconstitutionality of relieving the government’s burden of proof in a criminal case was established by the pronouncement in In re Winship in 1970 and, therefore, the rule is to be retrospectively applied to appellee’s case; consequently, the circuit court did not err in granting appellee’s request for post conviction relief.
* Caution: the foregoing is by no means a complete list of recent habeas corpus cases, just the most interesting and appropriate given the necessary space limitations. Just to give an idea of the vast scope, the number of federal appellate cases (Fed.3d and Sup. Ct.) reported between Nov. 1 and December 11 containing the terms habeas or AEDPA is 68 (include crim* and the number is an unmanageable 259 although a fourth to a third are non-habeas appeals, 42 U.S.C. 1883 and miscellaneous other cases). For a special research request, ask me.
RE LEGAL THEORY, my absolutely favorite topic for light reading: where does prosecutorial misconduct fit into the nexus? My law school (alma mater), Washington College of Law, has put into play a new journal called Crim Law Brief. More information about it is available on my blog, as well as on WCL's website though much like some legal opinions I've read it's a bit difficult to navigate. An interesting event is coming in January called "Prosecutorial Power" or something to that effect. The first issue, Vol 1 Issue 1, has an article by Angela Davis, Professor of Law, American University Washington College of Law from which I've digested the following [from her Arbitrary Justice: The Power of the American Prosecutor (forthcoming, Oxford University Press 2006)]. Davis was the Director of Public Defender Service for the District of Columbia (“PDS”) from 1991 to 1994.
“[t]he Supreme Court is largely responsible for hiding prosecutorial misconduct from the public by establishing nearly impossible standards for obtaining the necessary discovery to seek judicial review” and, “[a]s a result of the Supreme Court’s rulings, prosecutors know that it is highly unlikely that any of these behaviors will be discovered by defense attorneys or anyone who might challenge them.”
This is a serious allegation. How true is it? The alleged misconduct includes inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse. But is there more? Many of the statistics and facts she cites are from Misconduct And Punishment: State Discipinary Authorities Investigate Prosecutors Accused of Misconduct (2003) by Neil Gordon.
Turning to the SCOTUS developments, Davis notes in United States v. Russell the Supreme Court drastically curtailed the supervisory power doctrine by reversing a lower court’s use of the power in a case involving questionable law enforcement tactics. The Court has also invoked (hamstrung?) the separation of powers doctrine as it warned lower courts not to meddle in the business of law enforcement. In a further effort to limit the reach of a federal court’s supervisory power, in United States v. Hasting, the Court held that judges may not use the supervisory power doctrine to reverse convictions because of prosecutorial misconduct in cases involving harmless error. Nowhere more
than in the 5th Circuit is “harmless” error employed so often to avoid granting relief while acknowledg-
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ing errors were made. That is the worst type of decision-making gadgetry because it lowers the standards of legal practice, the standards to which lawyers and judges will be held, in delivering justice. That cheapens and rolls back justice, and the public's perception of justice, every time it is employed in denying the writ. Justice does not exist only on paper. Justice, as law, is made each and every day through practice in the courtroom. Judges, and the opinions they render, actually play a very effective role in the delivery of justice, indeed it affects the very nature of justice itself. This might be intuitively obvious, but as in the making of sausage, not too many are paying any attention.
Civil lawsuits, what I like to call private enforcement of the law, have proven equally ineffective as remedies for prosecutor misconduct. The Supreme Court established a broad rule of absolute immunity from civil liability (for prosecutors) for acts “intimately associated with the judicial phase of the criminal process.” (cit.om.) The reasoning? Prosecutors might be deterred from zealously pursuing their law enforcement responsibilities if they faced the possibility of civil liability; misconduct should be referred to state attorney disciplinary authorities. Few prosecutors are referred to state disciplinary authorities.
“[i]f you shoot at the king, you’d better kill him.” Defense attorneys are hesitant to refer prosecutors to disciplinary authorities because of the power they wield. Since over 95% of criminal cases result in guilty pleas, every defense attorney knows that her future clients areat the mercy of the prosecutor, whose unfettered discretion determines what plea offers will be made and to whom. Challenging the bar license of an official who holds all the cards is risky business, especially given the odds of prevailing. Prosecutors are powerful and often popular, political figures. Even when referrals are made, bar authorities frequently decline to recommend serious punishment, as the statistics from the Center for Public Integrity indicate. Thus, referring prosecutors to state bar authorities has proven to be a dismal failure.
So “the system” rewards defense attorneys who look the other way. Old Billy (Shakespeare) would not have been pleased. Davis concludes,
“When the law is broken by the very people the public trusts to enforce the law, meaningful action must be taken. Prosecutorial misconduct is widespread and unchecked, and it is unlikely that either the courts or the general public will take action to eliminate it. Prosecutors certainly have not policed themselves. Thus, the legal profession must take the lead in instituting meaningful reform that will assure oversight and strict accountability when prosecutors break the law. Although criminal lawyers in individual cases may not have the ability to affect meaningful reform, other lawyers, through local and national bar associations, should advocate for legislation and binding professional rules that will be enforced against wrongdoers. Lawyers have a vested interest in improving the reputation of the profession and in the fair administration of justice for everyone. They also have the expertise to institute reforms and the responsibility to eliminate what has become a shameful epidemic of misconduct among prosecutors.”
Books: Fiasco, The American Military Adventure in Iraq. (Thomas E. Ricks, Penguin Press, New York, 2006) [Excerpted from the review posted on my blogsite] The curious thing about a book, any book, is that it tends to raise a fundamental question: What is there in this piece of printed pulp that was, at one time, a living tree do I not already know? Then you read it and find out.
Ricks knows what he's talking about as he is the Washington Post senior Pentagon correspondent and got a lot of information contemporaneously, and from emails from personnel engaged in the operations. From this he has pieced together a “first draft” of history, and a good first draft it is. There are many, many anecdotes and real-life scenarios showing what life was like in the combat theater which I appre-
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ciated, being relegated to my soft chair: the stories I found particularly sorrowful were the ones describing fratricide, roadside bombs and deaths and mutilations of comrades. I don't know whether having lived through and observed (through the media) what was actually happening in and around Iraq contributed to my feeling of deja-vu as I read Fiasco.
The internet has made it all but impossible to conceal what is really going on, even in the far reaches of the world. To the extent that's true, we really do live in a transparent world. What the internet has failed to bring about, however, is an end to the lies and the spin and the attempts to communicate what is happening in purely political terms, and by political I mean Orwellian. If anything the spin is worse because it is forced to try to overcome the truth. And sometimes it does. For example, the president, through his spokespersons and alter-egos, Vice President Richard Cheney, Secretery Rice, and there are others, have been saying for three years that we are “winning” in Iraq, that we have been doing the right thing, that we needed to be there and that we need to “stay the course.” And as Robert Gates has discovered in his Senate confirmation hearings in December, this has created a political minefield. I want to emphasize the three years because that is a fairly longish period of time for anybody to be continuously conned, deceived, and mislead.
Prayer
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Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: for whom there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write the blog and Newsletter. Please send your check to Prison Innocence Project, PO Box 200, Jefferson, MD 21755.
It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?
*** Your comments are important to me, are encouraged, and will be published in my discretion. I also welcome any and all special interest “scoops” and stories. Your confidentiality is assured. I did receive some mail this month and promise to print the comment in January. Sorry it did not make it this time.
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