Did Judge James Redwine, an Indiana state court judge, have connections to drug dealers? Did he, when presiding over a murder trial, help cover-up a murder by protecting the real murders? Read Harrison v. McBride (here) for more. It's a long, but it's worth the read. This case is better than any true-crime novel you'll read all year.
Mr. Martin, a priest, was convicted of sexually molesting a 13-year-old boy
in a classic he said/she said case. But this case had three kickers.
First, Denise Watson Gilbreath, a former Florida prosecutor, testified without
objection that when she worked with Martin on policies designed to prevent
priest sex abuse, Mr. Martin that he "strongly disagreed with the policy
recommendation she eventually helped develop," and that Martin
"became very agitated and felt that the policy needed to ensure that
people accusing ministers of sexual abuse were telling the truth before the
parish involved the police." Further, "Gilbreath testified
[again, without objection] that she felt that this was an inappropriate
reaction that focused too greatly on protecting the accused clergymen, not the
accusers."
Second, police officer Charles Morancheck testified, without objection, that
at a meeting with Martin, the priest asserted his right to counsel and
"provided only biographical information and did not answer questions about
Carl S.’s allegations." Further, "Morancheck testified that
after describing the accusations to him, Martin did not make any verbal
responses, but raised an eyebrow and pursed his lips."
Third, Martin testified and also presented character evidence.
"At closing argument, the prosecutor argued that the jury should not be
swayed by the testimony of Martin’s character witnesses, because even men like
Jeffrey Dahmer and Theodore Oswald had character witnesses." Martin's
lawyer did not object, even though this was right after they pulled body parts
from Dahmer's refrigerator.
After being convicted and exhausting his state court remedies, the district
court refused to grant his habeas petition. A unanimous three-judge panel
reversed. (Yes, that's right - reversed.) Martin v.
Grosshans, No.
04-4247. The panel found that Martin's trial counsel had been
ineffective under Strickland, and moreover, that the state court's
unreasonably applied Strickland to Martin's case. The panel
provided an interesting discussion of consciousness of guilt evidence, but
before going into the legalisms, let's read between the lines for the real
rule. Here goes...
Prisoners almost always lose habeas cases, and for good reasons. The
AEDPA, unconstitutional though it might be, makes winning habeas cases
difficult. First, the procedures are agonizingly complex, and second, the
AEDPA requires that even convictions obtained unconstitutionally stand, so long
as the state courts did unreasonably violate the Constitution (as if
there's ever a reasonable constitutional violation!). Moreover,
there is usually substantive evidence of guilt. In drug cases, the police
find drugs. In most sex-crime cases, the police find DNA, or the
complaining witness suffers some injury.
But here, the complaining witness did not suffer and physical injury, and
there wasn't any physical evidence that the priest had molested him. In
he said/she said cases, federal courts generally require state courts to comply
with the Constitution. In theory, the same AEDPA is applied to every
case. In fact, in cases lacking physical evidence, reviewing
courts apply it a bit more strenuously. Indeed, the panel called the
decision to prosecute Martin "imponderable." I've always agreed
with this approach, since it's more likely an innocent person will be convicted
in a weak case when the prosecution violates the Constitution. Enough
realpolitik.
The panel found that Ms. Gilbreath's testimony was irrelevant and
prejudicial, and that Mr. Martin's counsel was ineffective for not objecting to
it (uh, yeah). The government argued that Gilbreath's testimony was
relevant consciousness of guilt evidence. Wrong. "First,
Martin was not even aware of the accusations against him at the time of his
interactions with Gilbreath. Moreover, his contact with Gilbreath was in a
completely different jurisdiction and several years after the time of the alleged
assaults. Second, and most important, a belief that clergy should be protected
from false allegations of sexual misconduct and afforded due process does not
imply a guilty conscience."
The panel further noted that Morancheck's testimony did nothing but punish
Martin for exercising his right to counsel, and thus should not have been
admissible. "Finally, Martin’s counsel was also deficient for
failing to move for a mistrial after the prosecution’s closing argument. The
prosecutor’s attempt to neutralize Martin’s character witnesses by referring to
Jeffrey Dahmer and Theodore Oswald was inflammatory and improper."
Martin was prosecuted in Wisconsin, and thus, "[t]he reference to Dahmer
was particularly troubling, considering the trial took place in Wisconsin in
1995, when the memory of Dahmer’s sexual exploitation and gruesome murders of
young men was still fresh in the minds of area residents."
Martin is an interesting case, and although it's only eight pages, it offers a lot to ponder. Read it.
Habeas cases are increasingly rule-based, and federal courts won't relax these hyper-technical rules even when it's shown a prosecutor withheld Brady material and an eyewitness recanted his testimony. Daniels v. Uchtman (CA7 8.29.05).
A prisoner can't seek federal habeas relief until after he has exhausted state court remedies. The plaintiff has one-year from the time of being denied state court relief to file a federal habeas petition. Another rule provides that a prisoner has only one year to seek federal habeas relief after he has learned of new evidence that casts his conviction into doubt. What happens when these rules collide? Answer: a person who was denied a fair trial is screwed.
In Daniels v. Uchtman, a juvenile deliquent was the primary witness against the defendant. The juvenile deliquent was facing a pending burglarly charge, but promised a break if he would testify against Mr. Daniels. The prosecutor never told the defense about the pending burglarly case. The jury convicted.
Fifteen years later, the witness recanted his testimony. Within one-year, Mr. Daniels' defense team sought state court relief. Within one-year of being denied state court relief, the defense team sought federal court relief. The district court dismissed the petition as untimely, and the appellate court affirmed, writing that
the statute ran for a total of 123 days from the signing of the affidavit until Daniels filed for relief in state court. At that point, the statute was tolled. After the Illinois Supreme Court denied relief, the statute began to run again, this time for 364 days until Daniels filed his habeas petition. In the view of the district court, a total of 487 days elapsed after the date on which the factual predicate of Daniels’ claims had been discovered, making his habeas petition untimely.
Daniels is problematic since courts sometimes toll the statute of limitations. Where, as here, the prisoner makes a good faith effort to comply with the (exceedingly complex) rules governing the writ of habeas corpus, federal courts should hear their claims. After all, the write of habeas corpus is a constitutional right: hyper-technical rules standing in the way of this right are themselves violative of due process.
But that's neither here nor there. We're left with Daniels, and we must understand it. Sadly, the message from Daniels seems clear. File fast - since it's practically impossible to know the deadlines in advance.
Irons v. Carey is a closely-watch pending Ninth Circuit case. The issue in Irons is "whether the AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this could should decline to apply the AEDPA standards in this case." I think that Judge Noonan today hinted at his possible Irons v. Carey analysis.
On pages 7458 - 7463 of this slip opinion, Judge Noonan thoughtfully critiqued - but dutifully applied - the AEDPA. But on page 7458 he wrote: "Habeas corpus is a fundamental right secured by the Constitution of the United States."
By treating habeas as a fundamental right, instead of treating it as something that merely can't be suspended, he opens up habeas analysis to another world. If the right to habeas corpus merely covers the right to not have it suspended, then the analytical question is: "Does the AEDPA suspend the writ of habeas corpus?" By treating habeas as an affirmative right, Judge Noonan can dig into the juicy separation of powers question.
Of course, it could be loose language. But I suspect that Judge Noonan knew what he was writing, especially in light of Irons.
Thoughts?
Petitioner Anthony Alexander Campbell appeals the denial by the district court of his petition for habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his California state court burglary conviction on two grounds. He argues that his trial counsel provided ineffective assistance because of a conflict of interest: she was being prosecuted at the same time by the same district attorney’s office. In addition, he maintains that the trial court violated his due process rights by excluding him from an in-chambers meeting attended by the trial judge, the prosecutor, and his defense attorney, during which the court was informed of the prosecution of the defense attorney and concluded that the attorney did not have a conflict of interest. When presented with these arguments, the California state courts denied relief to Petitioner. Applying the deferential standard of review established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court’s denial of the habeas petition.
Campbell v. Rich, No. 99-17311 (9th Cir. May 20, 2005) (en banc). No time to read the full opinion, but this seems shocking.
UPDATE: The Recoder has an interesting write-up of Campbell v. Rich, here.
The Irons v. Carey oral argument is available for listening here.
You should start one. If it was marginally good, it would get a lot of hits. If it was really good, I guarantee it would be widely read. You'd probably even get cases because of it.
Read this post by Prof Berman if you think I'm joking.
By the way, happy birthday to Professor Berman's Sentencing Law & Policy, which turned one last week. Berman rarely sings his own praises (and, I guess when your blawg is as good as his is, there's no need to draw attention its author; the thing speaks for itself). So I'll do it.
Berman, a sentencing law expert, began blogging right as Blakely came down. Though there were many blawgs before his, few blawggers had his talent; and none had his timing. Indeed, if memory serves me, several state and federal judges cited to his Blakely-related commentary, making his blawg the first one cited in a published opinion. When he broke an exclusive story, the U.S. Supreme Court tipped its hat. Given that blogs are still avant-garde, those nods were doubly special.
If it's true that luck is the intersection of opportunity and ability, Berman is the luckiest blawgger. Happy Blawgday, and please, keep it up.
Under Nebraska law applicable at the time of the defendant's crime, one spouse could not testify against the other. After the defendant's second conviction was reversed on appeal, Nebraska changed its law so that a spouse could be compelled to testify where the crime involved violence. The Eighth Circuit held that this change in the rules of evidence was not an ex post facto violation. Palmer v. Clarke, No. 03-3841, slip op. at 7-11 (8th Cir. May 13, 2005).
Arguably, the holding would be dicta in federal cases, since the court conducted AEDPA review. But the panel seemed certain that even absent the AEDPA, such a change in the rules of evidence would never violate the Ex Post Facto Clause.
There was also an interesting bill of attainder issue, which I discussed here.
There's an eye-witness account of the Irons v. Carey oral argument here.
Per Professor Berman, I learned that the Ninth Circuit has ordered the advocates in a pending case to discuss "whether the AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this could should decline to apply the AEDPA standards in this case." I have a few tentative thoughts; with more to hopefully follow.
Habeas corpus is an individual right that protects a citizen from being held by state officials who obtained a conviction by violating the Constitution. Congress does not have the power to abolish habeas corpus except in extreme circumstances. Art. I, sec. 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.") Separate and apart from the right to petition for a writ of habeas corpus are natural law rights recognized under the Due Process Clause.
Granting a writ of habeas corpus and vindicating due process violations are judicial functions, given to the judiciary under Article III. Art. III, sec. 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.")
Currently, the Habeas Clause has been interpreted narrowly, so that the writ of habeas corpus is suspended only when it's literally denied. But current AEDPA procedures are a suspension-in-fact for many habeas claims. That is, citizens are denied their federal constitutional rights in state court, and thus are imprisoned (re: held in state custody) in violation of the Constitution. But unless the constitutional rights violations were "unreasonable," the imprisonment is sanctioned by Congress and the Supreme Court. Isn't this also a due process violation? Aren't one's due process rights violated when one is convicted in an unconstitutional proceeding?
We might ask by what right can Congress limit the constitutional rights of citizens? By what right can Congress prevent the lower federal courts from analyzing due process challenges? Certainly Congress can control the rules of procedure of the lower federal courts, but in doing so, Congress can't violate due process. Nor can it deprive "establish[ed]" "inferior Courts" of its judicial power, since once these courts are created, the "judicial power" "shall be vested." Once your 401(k) or pension vests, then it's yours; your employer can't take it from you. Neither can Congress deprive the courts of their judicial power. Perhaps Congress can destroy lower federal courts. But that is a different issue than whether Congress may deprive a co-equal branch of its vested powers.
Thus, perhaps the AEDPA is unconstitutional under the separation of powers doctrine because, in hamstringing the lower federal courts, it prevents them from vindicating due process violations; and, indeed, even prevents them from analyzing whether it should grant a writ of habeas corpus at all.
These thoughts are tentative, and perhaps make no sense at all. Please share your thoughts.
Jonathan Soglin asks: "Is the Certiorari Standard Lower for Cases in which Habeas Relief Has Been Granted Under AEDPA?"
Yesterday the Ninth Circuit handed down an interesting decision concerning the application of a state law prohibiting jury tampering to a member of the Fully Informed Jury Association. Turney v. Pugh, No. 03-35165 (9th Cir. Mar. 15, 2005) (Fletcher, J.).
The FIJA believes that juries have both the power and the right to nullify the law as it applies to the facts of a case. Frank Turney, an FIJA activist, went to courthouses and handed out information on jury nullification. Turney was convicted under a state law that, as interpreted by the state’s highest court, prohibited a person from “knowingly communicating with a juror, directly or indirectly, with the intent to influence the outcome of a specific case.”
He challenged the law under the overbreadth doctrine of the First Amendment. A unanimous three-judge panel rejected his defense.
Citing several Supreme Court cases concerning speech about ongoing judicial proceedings, the panel said that Bradenburg’s clear and present danger test should would ordinarily apply. Id. at *9 (“[A]s a general rule, speech concerning judicial proceedings may be restrictions on if it is directed to inciting or producing a threat to the administration of justice that is both imminent and likely to materialize.”) (internal quotation marks omitted). But because speech about a pending trial could potentially prejudice the defendant’s right to a fair trial, or upset the public’s interest in impartial justice, “the First Amendment ... does not shield a ... communications to jurors made outside the auspices of the official proceeding and aimed at improperly influencing the outcome of a particular case.” Id. at *11. In other words, speech made with the intent to influence the outcome of a particular trial “is speech that is not protected by the First Amendment.” Id. Therefore, the law prohibiting Turney's conduct - as limited by the state's highest court - reached only unprotected speech, and so the conviction was proper.
I don’t read Turney as a bold case –- It does not hold that a leafletter may not hand out FIJA material. Rather, the panel upheld Turney’s the law because its “scienter requirement would prevent application of the statute to mass communications ... because the speaker would have to know that she or she was communicating with a juror[ ].” Id. at *15 (emphasis in original).
Turney was also analyzed under the AEDPA. Jury nullification activists would be prudent to seek declaratory and injunctive relief rather than facially attack similar state laws after being prosecuted.
UPDATE: Here's another interesting decision on jury nullfication and free speech rights. Braun v. Baldwin (applying time, place, and manner rationale held there is no First Amendment right to advocate jury nullification inside a courthouse). Last year Will Baude wondered aloud: "Under Brandenberg, advocacy is permissible so long
as it is not likely to incite imminent lawless action. Jury
nullification is somewhat lawless, I will grant, but is it really
imminent? How far down the block must I move?" Mr. Baude, have you further considered the issue?
Anyone else have comments?
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), a prisoner has only one year after entry of a final judgment in his case to file a petition for a writ of habeas corpus. However, the one-year limitation is tolled when the prisoner has a state habeas petition pending. What does "pending" mean?
Judge Fletcher, writing for a 2-1 panel, held:
“Pending,” in this context, includes the intervals between the dismissal of one state application and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely.
Gatson v. Palmer, No. 01-56367, (9th Cir., Oct. 28, 2004).
Counsel bungled the job in two ways. First, she waited until the final business day of the statutory year. Prudent lawyers act sooner, so that Murphy’s Law will not undermine a client’s interests. Second, counsel used first-class mail rather than Federal Express or another service that guarantees next-business-day delivery, or (better still) sending a messenger to the courthouse to file in person. Apparently counsel believed that use of the mails would add three days to the time available. Yet Fed. R. Civ. P. 6(e) applies only to documents "served" on opposing counsel, not to documents such as complaints or notices of appeal that must be filed in court. Nothing in the Rules Governing Section 2254 Cases in the United States District Courts treats any document as "filed" before actual receipt by the district court’s clerk.Johnson v. McBride, 2004 WL 1858368 at *3 (7th Cir., Aug. 20, 2004). However, "lawyers are agents. Their acts (good and bad alike) are attributed to the clients they represent." Id. at *4.
Id. Judge Easterbrook reminded prisoners that the court will "hold the prisoner responsible for his attorney’s bungling." Id. at 5. (quoting Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)). Lest ye think that the Seventh Circuit has no heart, they reminded us that none of Johnson’s claims fell under the so-called "innocence" exception of 2244(b)(2)(B) (i)-(ii).Although "[t]he sixth amendment creates an exception to this principle for criminal prosecutions. Once trial and direct appeals have run their course, however, neither the sixth amendment nor federal law guarantees effective assistance of counsel for collateral proceedings, not even in a capital case."
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