Not long after reading about the Registry of Prosecutorial Misconduct, I came across a piece in the San Diego paper noting that the local prosecutor maintains a “Brady Index” file on a handful of police officers who it considers to be untrustworthy or otherwise likely to cause problems on the witness stand. The list is not public. However, for the same reason that the Registry of Prosecutorial Misconduct is useful, a public “Brady Index” might not be a bad idea.
Edit: Thanks to Google, I note that the Cato Institute maintains the National Police Misconduct Reporting Project. The project appears to have some of its information in database form, but only for certain years. The project’s blog can be searched by city, so it could be a helpful source for defense lawyers.
What happens when an inexperienced attorney who has never handled a criminal trial ends up defending a man accused of participating in a terrorist training camp in Pakistan?
If you said “ineffective assistance of counsel” you’re right, or at least that what the lawyers for Hamid Hayat, led by Dennis Riordan, are arguing in a petition for habeas corpus filed in the district court for the Eastern District of California. The interesting thing about the case, from my point of view, is the way the habeas argument brings to light all the things that an effective lawyer could have done that would not be apparent from the cold appellate record. In this case, those things include asking for funding for investigators, travel expenses, and the other tools that would have shown that the government’s story about what Hayat did in Pakistan was very unlikely to be true. In the absence of that work, and facing serious charges at a time — 2006 — when the mere mention of “terrorism” was an extremely potent prosecutorial tactic, Hayat was a sitting duck.
On the Unconstitutionality of the Death Penalty and the Claim that Inmates are to Blame for Structural Delay
Today’s federal court ruling that the death penalty is unconstitutional as administered in California points to the extreme delays in the system (averaging more than 25 years) and the arbitrary outcomes in terms of who, if anyone, ever actually gets executed. (The order is here.)
The response from some quarters, not surprisingly, is that inmates on death row should not be complaining about delays after they themselves have caused those delays by pursuing various forms of post-conviction arguments challenging their conviction and/or sentence. I think that is a criticism that might seem fair, at least at first blush. So I just wanted to note what Judge Carney, the author of the order, had to say about it: that “much of the delay in California’s post-conviction review process is created by the State itself,” primarily the delays in appointing counsel, underfunding investigations, delays in evaluating claims, and the generally conclusory nature of the analysis that eventually does get generated by the California Supreme Court in disposing of these cases.
Death penalty cases do not proceed all that quickly in any state, but California is particularly slow. Reasonable minds may differ on the question of whether that delay renders California’s system unconstitutional. But it seems clear that the underlying issue is indeed a structural one, and can’t just be chalked up to (and then disregarded because of) the theory that California inmates are particularly enthusiastic about delay.
As the New York Times has noted, prosecutorial misconduct is “rampant” in the United States, in part because it is virtually never punished and there is consequently no incentive for prosecutors to avoid it as they climb the career ladder. But a new project may change that.
The Registry of Prosecutorial Misconduct, a project of the Center for Prosecutor Integrity, is exactly what it sounds like. And it names names. So now, even if a reviewing court decides that a given instance of misconduct was harmless, there nevertheless will be a Google-able record of the fact that the misconduct occurred. Which might make a difference downstream, when prosecutors want to get on the bench or make other career changes.
I just hope the CPI has plenty of insurance, because some folks are bound to be outraged by the registry, in spite of the fact that it draws from public information about public officials.
Hat tip: Wrongful Convictions Blog.
The Context of Judge Kozinski’s Dissent in U.S. v. Olsen
Report: Most Prosecutorial Misconduct Goes Unpunished
People v. Uribe: Prosecutor’s Conduct Was “Grossly Shocking and Outrageous” — But Not Shocking or Outrageous Enough to Warrant Dismissal of the Charges
California Supreme Court Depublishes Appellate Decision That Found “Pervasive Pattern” of Prosecutorial Misconduct
A split panel of the Ninth Circuit Court of Appeals on Friday published an opinion, Amado v. Gonzalez (11-56420) that wades into the thorny issue of just how much deference is owed to state court analysis in federal habeas review. Two members of the panel acknowledge that considerable deference is owed to the state analysis, but nevertheless conclude that there are certain situations — such as in this case — where the state court screws things up sufficiently that the bar to relief under the AEDPA does not apply. The dissent, by contrast, argues that the majority “clearly flouts Supreme Court precedent” by not giving sufficient deference to the state court.
An interesting aspect of the dissent is the following assertion:
I am unable to say that no fairminded jurist could disagree that the state court’s decision was unreasonable, and neither should the majority. . . . I agree with the presumably fairminded district court that the state court did not unreasonably apply Brady.
The implicit idea here (if I am correctly navigating through the multiple layers of negation in that first sentence) is that since the district court didn’t buy the petitioner’s argument then, by definition, there is at least one reasonable judge who agrees with the way the state court handled the claim. Which is true enough. And yet it doesn’t seem like that fact can or should really mean all that much to an appellate court evaluating habeas petitions since every single argument that they ever hear, whether it involves a bunch of frivolous nonsense or an obvious miscarriage of justice, will be in the same procedural posture.
At any rate, Amado is one of a handful of cases that have come out over the last few years where some members of the Ninth Circuit seem to be trying to sort out exactly how much deference is enough in the post-Harrington v. Richter world.
Although habeas petitioners in California courts do not “appeal” when their petition is denied (instead, they must quickly re-file the petition in the next highest court), there is a scenario where an appeal is taken from the resolution of a habeas petition. It happens when the petition is successful and the government is the appellant seeking to overturn the grant of habeas.
That’s the scenario in In re Hansen (D063549), published Tuesday by Division One of the Fourth District Court of Appeal. And an interesting procedural quirk to the case is the standard of review that is applied in assessing such an appeal. As the court notes,
“[o]ur standard of review is de novo with respect to questions of law and the application of the law to the facts. We accept as final the superior court’s resolution of pure questions of fact if they are supported by substantial evidence.” (In re Richards (2012) 55 Cal.4th 948, 960.) Where, as here, the trial court did not hear evidence or make findings of fact, our review of the trial court’s order is de novo. (Ibid.)
“[B]ecause petitioner seeks to overturn a final judgment in a collateral attack, he bears the burden of proof. [Citation.] ‘ “For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.” ‘ [Citations.]” (In re Avena (1996) 12 Cal.4th 694, 710.)
That bolded point, combined with the following sentences, illustrates a challenging reality for any petitioner who prevails at the Superior Court level, which is that unless that victory is anchored in some specific factual findings it is subject to reversal on appeal under a standard that gives no deference to the trial court. Which seems a little unfair, perhaps, but habeas is an uphill battle at every stage of the game.
In re Hansen also contains interesting discussion, and a dissent, related to the question of what standard of prejudice should be applied to the evaluation of an instructional error that, had it been the subject of a direct appeal, would be evaluated as a violation of the federal Constitution, requiring reversal unless the error was harmless beyond a reasonable doubt. The majority says it still is assessed in that manner, even when the issue is raised via habeas, while the dissent disagrees, arguing:
Although our California Supreme Court has not considered what standard to apply when, as here, we are engaged in collateral review of a final judgment, we should adopt and apply the more deferential “grave doubt” harmless error standard of review, which governs consideration of similar trial errors when found in federal habeas proceedings.
Just a quick note that the unpublished case I mentioned last week in connection with a true trainwreck of an oral argument, Singh v. Lipworth, has now been published (as of July 3, 2014). So I guess that’s a trainwreck taking place on the deck of the Titanic, or something along those lines. However you scramble the metaphor, it’s a fate no appellate lawyer wishes to meet.
Maybe federal habeas review of state court decisions isn’t a perfect mechanism for achieving justice, but what exactly does it cost, and would the alternatives proposed by some critics actually provide a better value? Those are some of the questions that Florida State University Law School Assistant Professor Samuel Wiseman considers in a forthcoming paper in the Florida Law Review, available on SSRN.
Wiseman’s paper, What is Federal Habeas Worth?, brings the discussion about federal habeas down out of the world of meta-abstraction and historical fetishism where it often takes place, and anchors it with some actual numbers. Cross referencing habeas caseloads with the budget of federal courts and the spending of state-level lawyers who defend against habeas petitions, he estimates that federal habeas review costs the federal and state governments a ballpark figure of $257 million per year. (Interestingly, for those of us in the Golden State, Wiseman reports that “California’s Appeals, Writs, and Trials Section spent $8.54 million on non-capital federal habeas petitioners between 2012 and 2013, $8.64 million in 2011-2012, and $10.32 million in 2010-2011, with an average of $9.16 million spent.”) And while that ain’t chicken feed, Wiseman notes that it’s not exactly an enormous expenditure either when set against the larger universe of criminal justice spending. Nor, for better or worse, is it actually all that large of a pot of money for would-be habeas reformers to use in any hypothetical changes to the existing system.
Lurking in the background of this analysis is the critique of federal habeas as a basically useless set of procedural gymnastics — a position that has been advanced most notably in the last few years by Professors Nancy King and Joseph Hoffman in their book Habeas for the Twenty-First Century. King has calculated that federal habeas leads to relief in only .8% of all cases (a number that, obviously, is skewed by the vast pool of pro per petitioners who have almost no idea what they are doing when they file), and, together with Hoffman, has argued that habeas review should be scaled back significantly.
Wiseman, though, questions whether there is actually any cost savings to be had from curtailing habeas review and shifting money elsewhere because, after all, inmates are still going to use whatever mechanism they can to challenge their convictions. Moreover, there are still going to be occasional claims — perhaps not many, but not none either — where a miscarriage of justice actually has occurred. Somebody has to do the work of sorting out the wheat from the chaff, and that sorting can either be done quickly and poorly or less quickly and more accurately. No matter how it is done, it will cost a certain amount of money.
Oral argument doesn’t always go exactly the way one hopes, but even the worst oral arguments that most lawyers experience probably aren’t as crazy as the one described in Singh v. Lipworth (C073177), an unpublished case issued by the Third District Court of Appeal in June. (Update: As of July 3, 2014, this case has been published — not much fun for the lawyer whose briefing was described as “a rambling and disjointed series of accusations, much of which was lifted word for word from pleadings filed . . . in the trial court.”) In a nutshell, the parties appear to have had an extremely acrimonious dispute and the quality of the lawyering was not what it should have been. The Court of Appeal then advised the parties that it was considering imposing sanctions, and said the matter would be discussed at oral argument. The following then occurred at that argument:
Asked to explain which arguments [from his own Opening Brief] he believed to be meritorious, Oliver answered: “Um, I haven’t looked at any of the arguments in such a long time, I can’t say.” Asked whether or not he filed the opening brief, Oliver said he did, but maintained he could “not recall the arguments” because he had not looked at the brief since it was filed. When told that this explanation was “astounding” and shown a copy of the opening brief, Oliver responded: “I did not file that brief.”
Okay then! Perhaps not surprisingly, sanctions were indeed imposed.
How can a federal habeas petitioner avoid getting kicked out of court based on procedural default if the claim he or she is asserting was not properly exhausted before the state court? The United States Supreme Court addressed this issue in 2012 in Martinez v. Ryan, and the en banc Ninth Circuit Court of Appeals applies Martinez v. Ryan in a capital case published today.
In Dickens v. Ryan, the basic problem is that the petitioner is making a different argument to the federal court than he did to the state court. In each case, he’s arguing that his lawyer provided ineffective assistance of counsel at sentencing. But the argument presented to the state court was, as the majority puts it, a “naked” and essentially boilerplate claim, whereas Dickens presented a considerable amount of new evidence to the federal court, putting a lot of substantive flesh on the bones of the ideas that the state court already rejected.
This kind of argument runs into the problem of procedural default because petitioners are supposed to present their claims first to the state court, not to sandbag the state court with skimpy briefing and then to add on a bunch of critical information after the fact, in a different court. But the United States Supreme Court held in Martinez v. Ryan that procedural default will not block a petitioner from raising such an argument “if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” In other words, if the reason the ineffective assistance of counsel claim was presented to the state court in a “naked” fashion in the first place is because the habeas lawyer also screwed up, there may be a way eventually to get to the substance of the argument.
Here, the Ninth Circuit says it’s at least arguable that the Martinez v. Ryan standard is met. The dissent, however, is having none of it and points out a strategic wrinkle to the analysis:
Why wouldn’t a defendant hold back or forego developing one claim in his first postconviction petition in the hope that he may earn another round of postconviction proceedings by raising it for the first time in his federal habeas petition? The majority’s approach encourages state defendants to concoct “new” IAC claims that are nothing more than fleshed-out versions of their old claims supplemented with “new” evidence. This cannot have been the Supreme Court’s intention . . . .