Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this:

Crito: Wake up, Socrates, we’re busting you outta here!

Socrates: What are you, an idiot?  You can’t do that.

Crito: No worries.  All the bribes are arranged, the travel’s all taken care of, and you have your choice of local city-states all ready to welcome you with open arms.  Let’s blow this Athens joint and get back to freedom and philosophy!

Socrates: Use your head.  Living is not what’s important.  Living a good life — one that is just and honorable — is what’s important.

Crito: Yeah, but…

Socrates: And it’s not just or honorable to try to escape, because that would violate the will of the state that condemned me.

Crito: Aha, but it was unjust for the state to condemn you.

Socrates: Don’t you “aha” me.  The state provided for my entire existence, educated and protected me, and by living here my whole life I’ve entered into an unspoken contract to abide by the state’s law.

Crito: Yeah, but…

Socrates: Shut up.  Justice requires the rule of law.  No man is above the law.  If you start making exceptions for famous philosophers, or for people who can afford bribes, then there is no more rule of law.  Justice disappears, society crumbles, and everyone suffers.

Crito: Yeah, but…

Socrates: So if I break out of here in violation of the state’s law, then I’ll be the bad guy.  I’ll be the enemy of good government.  When I arrive at Thebes or Thessaly, I will come as an enemy of their good government, too.

Crito: Yeah, but…

Socrates: Think of it this way — I’m taking one for the team.  Yes, I’m suffering from an individual injustice.  But that’s the price you pay sometimes for the general justice of society.  If I didn’t pay that price, we’d all suffer.

Crito: Team!  Team!  Team!

Socrates: That’s the spirit.  Now can I go back to sleep, please?

Okay, so after reading this to the kids (and succeeding in our goal of getting them to go the **** to sleep, already), we started wondering if Plato was right about all this.  After all, individual injustice is still, you know, unjust and all.  Wouldn’t it be proper to break the rules to ensure individual justice?  And that got us thinking about Troy Davis.

The rules are keeping him on death row.  The rules will, absent some remarkable and unforeseen intervention, result in his death tomorrow night.  But we’ve got 20 years of hindsight giving us real doubts that he’s guilty.  The rules also say we don’t punish someone unless their guilt is proven beyond a reasonable doubt, and there’s reasonable doubt all over the place now.  It would be an injustice to execute someone whose guilt is so ridden with doubt.  Doesn’t the enormity of that individual injustice warrant breaking the rules to prevent it?

Plato (speaking through Socrates) would clearly say no.  And our system, our jurisprudence, says no.  Because when push comes to shove, the goal is not individual justice.  The purpose has never been individual justice.  It’s always been justice in general, not in particular.

-=-=-=-=-

Of course, our system tries for individual justice.  Defendants are judged on a case-by-case basis.  It’s terribly inefficient, but that’s how we do it.  We don’t just round up the usual suspects or behead every tenth person.  We treasure the right of the individual to be free from arbitrary and abusive governmental action.  That’s all the Declaration of Independence, the Constitution and the Bill of Rights are saying.  The government can hurt you real bad, and so we make the government obey the rules before it does so, to prevent it from hurting you just because it can.  So we decide each case individually, with rules of evidence and constitutional rights and statutory obligations all designed to make sure the might of the state is coming down on you justly.

Though we strive for individual justice, it’s recognized that mistakes get made.  Guilty people escape punishment, and innocent people get convicted.  We try to minimize that, but it happens.  There are rules in place for the undoing of wrongful convictions.  They’re not perfect, but they are the rules.

But if all the rules were followed, and you’re still wrongly convicted?  Well, at this point your interest in individual justice gets trumped by the goal of general justice.

“Finality” is a big concept here.  At some point, everyone has to move on.  Turn the page, close the book, it’s over.  The system is inefficient enough as it is, without allowing people to revisit each case over and over again until they get the result they like.  Society can’t be expected to bear the burden of retrial after retrial — new cases would never get tried, justice would be denied, because we’d be too busy going over the same old cases.

That’s all our criminal justice system really does:  It closes the book so everyone — accused, victims, witnesses, authorities — can get on with their lives.  The jury decides on an official version of the facts, based on what the government could prove rather than on what really happened.  Nobody expects this official version of the facts to be the whole truth.  It’s just something the system can work with, apply the pertinent laws to, and issue the appropriate punishment or dismissal — so everyone can get on with their lives.

In Troy Davis’ case, the official version of the facts is that he killed that police officer in 1989.  It may or may not be the truth — nobody knows but him — but that’s not what’s important.  What’s important is that the government was able to prove, beyond a reasonable doubt, that he did do it.  Whether they could prove it again today is not what the system and its rules are looking at any more.

He may be taking one for the team, then.  Being killed by the rules of the society in which he lives, which are designed to ensure general justice.  If the rules were to be broken for him, then they could be broken for the next guy, and we’d all suffer.

That’s what our jurisprudence says.  That’s what Plato would say.

-=-=-=-=-

And they’d be wrong.

Because one thing that our jurisprudence and Plato routinely ignore is the simple fact that perception is everything.

If the system is perceived to operate in a just fashion — if the people pretty much see it as protecting the rights of the individual and in general getting things right when deciding guilt and innocence — then the system works.  Crime is deterred by the assurance that it is punished accurately.  The laws are generally respected and obeyed because they are seen to be just and to be justly applied.  Society runs smoothly, and the law is doing its job.

But if the system comes to be perceived as unjust — even if in reality it’s as fair as could be — then society falls apart.  If the laws are seen as someone else’s laws, unfairly applied to this community, then the people of that community will lose respect for the laws and be more likely to break them.  If the laws are seen as disproportionately applied to some people as opposed to others, then they are no longer seen as just.  If the system comes to be seen as arbitrary, uncaring and cruel, then the law fails in its purpose.  Fear, not one’s own sense of right and wrong, becomes the primary reason to comply with the law.  That way lies social upheaval, riot and revolution.

In a world like ours, where the rare injustice is what makes the headlines and gets people talking, the risk is that the one-off will come to be seen as the norm.  If the occasional injustice comes more and more to be seen as the norm, rather than the sad exception, then everyone suffers.

The goal of general justice would die, because the perception of individual injustice killed it.

-=-=-=-=-

Socrates didn’t want to be the exception who broke the rules to achieve individual justice, because that would have corrupted and undermined the stability of his society.  But in today’s world, making exceptions and breaking the rules, in order to preserve a general perception that our system is a just one, is probably something worth considering.

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Chicago

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here.

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

-=-=-=-=-

Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

-=-=-=-=-

So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was what might happen in the event that they should wind up being deadlocked. The judge totally forced the deadlock language onto the record.

All the judge had to say was “it’s none of your business what decision I may or may not make based on your decision. But I can’t do my job until you’ve done yours. So if that hypothetical query was your only question, please get back to work.”

-=-=-=-=-

After the mistrial, Lett had to go through a whole second trial. The prosecutors had now seen the defense’s cards, knew what arguments the defense would make, and presumably did a better job of shutting them down, because this time the jury had no problem finding Lett guilty.

Lett appealed, on Double Jeopardy grounds. This was in Michigan, and the state’s supreme court said no, the judge did everything right under Perez.

Lett petitioned the federal court, which granted habeas on the grounds that the trial court did “fuck-all” to ensure that the jury was really deadlocked. (Ed.: Citation needed again.) The Sixth Circuit agreed.

So Michigan appealed to the Supreme Court, and that gets us to this morning’s arguments.

-=-=-=-=-

It was quite an argument. Neither lawyer seemed to have real mastery of the issues, and so they were wide open to attack from opposing justices. And so sympathetic justices would throw out lifelines. It was like a legal game of catch-and-release.

Justice Sotomayor kicked things off by wondering out loud how anyone could find “that the court was acting deliberately, responsibly, and not precipitously.” Michigan’s lawyer replied that “you have to look at the totality of the circumstances” — weasel words, in our experience, used when the facts are inconvenient. The circumstances were that you could sort of interpret that the jurors were “acrimonious” and you could sort of interpret that they had been deadlocked.

This was not particularly convincing. So Justice Ginsburg fed the state’s lawyer an argument, asking “are you urging that, because the trial court judge was there on the spot, saw the jury, worked with the jury, that that’s something that deserves a special measure of respect?” The grateful lawyer — as everyone seems to do when lobbed a softball like this — replied, “Absolutely.”

That was beside the point, of course. The issue was whether the trial judge had taken reasonable steps to ensure that a verdict could not be reached. Justice Kennedy got everyone back on track, gently suggesting that the judge might have excused the jurors and then asked the lawyers whether they thought a mistrial was appropriate. Getting the input of both counsel is typically considered part of the judge’s weighing of the situation in these matters, after all.

After some back-and-forth, Justice Breyer pointed out that of all the cases where a mistrial was declared, very very few are going to have facts like these. “What do you want me to read,” he asked, “to see that this is not an extreme case that counts as an abuse of the judge’s discretion?” During a long colloquy, Michigan’s lawyer never was able to answer the question. He started to admit that it’s pretty rare, when Scalia jumped to his rescue, pointing out that it’s not the state’s burden to prove it’s normal, but rather it’s the defendant’s burden to prove it’s abnormal.

It was clear that Scalia was irritated at the lawyer for not responding to these questions as he could have. But he was still on Michigan’s side. That did not seem to be the case for the other justices who spoke up. It was pretty obvious the rest of them thought the judge hadn’t done enough.

Scalia was waiting to pounce on the defendant’s lawyer, to ask how they’d met their burden of proof to show that there was not a deadlocked jury. Counsel didn’t do a great job with this, trying to somehow argue that there was no factual finding of a deadlock, though it was implicit.

And the defendant’s counsel didn’t do so hot during a tag-team by Alito and Breyer, where they got her to admit that there was no case out there where something like this was held to be an abuse of discretion. The Chief Justice tried to help her out, but she flubbed it, citing only a general principle against irrational and precipitous decisions. Scalia would have none of that, pointing out that what’s needed here is proof that the judge’s decision was contrary to, or involved an unreasonable application of, clearly established federal law.

(We do our share of habeas petitions, ourselves, so we ought to mention that Scalia’s correct here. You can’t just say it was an abuse of discretion. You have to say that there’s a federal standard that was applied, and it was applied wrong.)

Stevens jumped to her rescue, pulling her away from the precipice of whether there was an abuse of discretion, and feeding her the line that the issue is really “whether there was a manifest necessity” to declare the mistrial.

There was some back-and-forth with the Chief on this, unfortunately without much meat to it. But it did contain our favorite quote from the term so far:

CHIEF JUSTICE ROBERTS: I’m sorry, please finish your sentence.

MS. McCOWAN: No.

CHIEF JUSTICE ROBERTS: Okay.

Sotomayor finally got the lawyer to say something worthwhile, by asking how the state court unreasonably applied federal precedent. The lawyer remembered that Arizona v. Washington requires that the judge exercise sound discretion, and here the judge didn’t exercise any discretion. And failure to exercise discretion is an abuse of discretion. The Michigan supreme court improperly applied federal law by failing to see that.

And here she was on solid ground at last. Scalia’s retort she could now easily clarify. The Chief spelled it out for her a little better, that some abuses of discretion aren’t going to be enough for a habeas challenge, but they will be if the state supreme court unreasonably applies the federal standard to make its call.

That’s how she should have started her argument, but at least she got to it in the end.

The rest of the defense’s argument was spent parsing the jury’s note and the transcript, to figure out what was really being said, what might have been meant, and what else might have been said. That’s important, because it means the justices were getting to that issue. They had crossed the threshold of whether the legal standard applies here, and were now diving into the merits. And that’s good for the defendant, because it’s hard to say that the judge was acting anything other than precipitously here. (Ed. note: Are you sure the correct word isn’t “precipitately?”)

-=-=-=-=-

So, given the way the argument went, how do we think the Court will decide the case? We’ll say 6-3 in favor of Lett. Scalia is not convinced that the AEDPA was satisfied here, and Thomas will probably go along with him (though statistically, he doesn’t side with Scalia any more often than other similar justices side with each other). Alito didn’t seem all that taken with the defense side. But Roberts, Stevens, Breyer, Kennedy, Ginsburg and Sotomayor all seemed slightly on the side of calling this an abuse of discretion.

So we predict they’ll say the judge should have at the very least gotten some input from trial counsel, and maybe even some more solid evidence of deadlock, before calling a mistrial. That was an abuse of discretion, and the Michigan supreme court improperly applied Supreme Court precedent in finding otherwise. And the abuse of discretion was severe enough that the defendant got screwed, triggering the protections of Double Jeopardy.

We’ll find out if we’re right in June.

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

-=-=-=-=-

At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

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Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

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So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

The “Prosecutor’s Fallacy” is one example of why we think Statistics should be a required course in college. Let’s say the police have the DNA of a rapist. Only 1 in 3,000,000 people chosen at random will match that DNA sample. Your DNA matches. At your trial, the DNA expert testifies that you have only a 1 in 3,000,000 chance of being innocent. That is not correct, however. That’s an example of the Prosecutor’s Fallacy.

Yes, there is a very small chance that someone’s DNA would match if they were innocent. But that is not the same as saying there’s a very small chance that someone is innocent if their DNA matches.

This is basic conditional probability. And if you think about it, it’s just common sense. What you’re doing is switching the conditions around, and leaving the result unchanged. You can’t expect to change the conditions and not change the result.

To illustrate with an extreme example, we drew the picture you see above. A black circle indicates a DNA match. All guilty people are going to have a DNA match, obviously. And a tiny fraction of innocent people are going to have a DNA match, as well. But if the number of innocent people is large enough, then the number of innocent people whose DNA matches could actually be larger than the number of guilty people. Someone whose DNA matches is actually more likely to be innocent in that scenario.

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Prosecutors and DNA experts aren’t the only ones who get this wrong. Courts do, too. The Ninth Circuit recently made a hash of it in their decision in McDaniel v. Brown, which will now be one of the first cases to be heard by the Supreme Court at the start of this year’s October term.

In McDaniel v. Brown, Troy Brown was prosecuted for the alleged rape of a little girl. The facts are pretty gruesome, but irrelevant here. What’s relevant is that, at his trial, the DNA expert testified that Brown’s DNA matched the DNA in the semen found on the girl, that there was a 1 in 3,000,000 chance that someone’s DNA would match, and that therefore there was a 1 in 3,000,000 chance that Brown was innocent.

Brown got convicted. He later brought a habeas petition to the District Court. He introduced a professor’s explanation of how the prosecution had screwed up. The District Court expanded the record to include the professor’s explanation, and found that the DNA expert had engaged in the Prosecutor’s Fallacy. In part because of that (there was also a chance it could have been his brother’s DNA), the District Court found there wasn’t sufficient evidence to convict.

The government appealed to the Ninth Circuit.

Now, the Ninth is known for being touchy-feely. It’s not known for its analytical prowess. Posner, they ain’t. But they bravely tackled this statistical conundrum. And they screwed up.

In trying to deal with the prosecution’s error, the Ninth swung too far in the other direction, finding that the DNA evidence at Brown’s trial couldn’t establish guilt, period. No jury could have found Brown guilty.

So the government took it to the Supreme Court, making two arguments. One is procedural — that the habeas court shouldn’t have been able to consider the professor’s explanations, but only the trial record, in determining the sufficiency of the evidence before the jury. The other argument is that even though the chances of Brown being innocent weren’t 1 in 3,000,000 they were still pretty damn low, and the DNA evidence is still plenty sufficient.

Brown’s lawyers, to their credit, don’t seem to be arguing that the Ninth Circuit did it right. Instead of characterizing the decision below as ruling on the sufficiency of the evidence, Brown’s attorneys argue that it was really a Due Process ruling. The testimony wasn’t so much insufficient as it was incorrect. It was unreliable. This is bolstered by the fact that the Ninth Circuit ordered a new trial (which Double Jeopardy would preclude after a finding of insufficient evidence, but which is standard after a Due Process finding of unreliable evidence.)

That’s not the way the Ninth characterized its ruling, however, so Brown wisely suggested that the Supreme Court might simply kick the case back for the Circuit to explain its ruling better.

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Oral arguments are scheduled for October 13. We haven’t made any predictions yet about the upcoming term, so we’ll start here.

We think the state will convince Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsberg and Alito of the following:

(1) The Ninth Circuit improperly remanded for a new trial, which is improper after a finding of insufficiency; and

(2) At any rate, the Circuit improperly found the evidence to be insufficient, when there was plenty of evidence of guilt.

We think that Justices Stevens and Breyer (we have no clue about Sotomayor) will dissent, arguing that the jury was totally thrown by the DNA expert’s mischaracterization, that this was a Due Process violation at the very least, and that the DNA evidence probably should have been thrown out entirely, so the Ninth Circuit should be reversed and the District Court’s original ruling should be reinstated.

What are the odds that we’re really right? Who wants to do the math?

We love Alan Dershowitz. And we love Justice Scalia. So at first we were intrigued to hear that Dersh had challenged Scalia to a debate over his recent dissent in Davis. (See our post on it here.)

But it turns out that Dersh is just being disingenuous. Pity.

Quick recap: Davis was convicted of a murder. Since then, several witnesses have recanted. He filed a habeas petition directly with the Supreme Court. Justice Stevens, writing for the majority, passed it on to the District Court to decide whether Davis really is innocent. Justice Scalia dissented, saying that the District Court doesn’t have the power to do anything, even if it does find him innocent.

The reason why Scalia said that — and he really does have a point — is because the law in question only lets the District Court act if there is well-settled Supreme Court precedent allowing it. Scalia pointed out the simple fact, known to any death penalty scholar, that there is zero Supreme Court precedent on this issue. And that is because the Supreme Court has gone out of its way to avoid ever deciding one way or the other whether there is a constitutional claim of actual innocence.

Here’s what Scalia said:

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.

That clearly means nothing more nor less than that the Supreme Court simply hasn’t decided the issue yet.

Now of course there have been plenty of bloggers out there who have mischaracterized and misinterpreted this to mean that Scalia thinks it’s constitutional to execute someone who is actually innocent, so long as their trial wasn’t otherwise defective. That’s not what he said, but there are many who find it easy to believe that he did say that. And there are many more who just don’t get the concept. That’s fine, because those bloggers aren’t highly respected constitutional scholars.

But Dersh is a highly respected constitutional scholar. He has no excuse for misinterpreting what Scalia said. And yet that is exactly what Dersh did in his blog post today on The Daily Beast.

Dersh said he never thought he would see the day when a Justice of the Supreme Court would write an opinion containing the quotation above. Then he explained what he says Scalia meant:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

That is absolutely not what Scalia was saying, and Dershowitz ought to know that. He created a straw man, then spent an entire blog post arguing against it.

That was bad enough. But then Dersh made it worse, by challenging Scalia to debate him on it. Dershowitz pointed out that Scalia has publicly promised that, if the Constitution ever compels him to act in violation of the mandates of his Catholic faith, he will resign as a Justice instead. And Scalia has also stated that he could not authorize an execution if he believed it would be immoral.

So Dershowitz says the stakes of their debate would be high: If Scalia loses, he’d either have to change his jurisprudence, or he’d have to resign from the Supreme Court.

But Dersh challenges Scalia to defend a position that Scalia has never taken, that “his constitutional views [permit] the execution of factually innocent defendants.”

And though Dersh imposes high stakes on the man he challenges, he imposes none on himself. If he loses, he loses nothing.

So our favorite constitutional scholar has challenged someone to defend a position he never took, with extreme penalties for losing, and at no risk to himself? Badly done, Dersh. Bad form.

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And by the by, the majority in Davis has tried to force the issue. Whichever way the District Court goes on this, it’s coming back to the Supreme Court, so they may well have to decide once and for all whether there is a constitutional claim of actual innocence. They may not, because this isn’t the strongest case of innocence — it’s a he-said-he-said situation with witnesses who merely recanted testimony — and so they may have other grounds to avoid the issue.

But if they do decide the issue, we have no trouble predicting that Scalia would opine that the our law does provide for a claim of actual innocence. He’d probably refer to the fact that English courts going back to the Middle Ages widely accepted the principle that innocence trumps other considerations. He’d probably quote Fortescue and Blackstone. He could well throw in the maxims of tutius semper est errare in acquietando quam in puniendo, ex parte misericordiae, quam ex parte justiae, and of prestat reum nocentum absolve, quam ex prohibitis indiciis & illegitima probatione condemnari. Heck, if he’s feeling mischievous, he might even cite the rules of Star Chamber (such as In Camera Stellata, 29 April 1607, in Court of Star Chamber, Les Reportes del Cases in Camera Stellata 1593 to 1620).

We wouldn’t be a bit surprised. And Dersh shouldn’t be, either.

The Supreme Court did something today it hasn’t done for generations — it took an “original writ” of habeas corpus (a request made directly to the Supreme Court itself, instead of first filing it in a lower court), and then it ordered a federal District Court to hold a hearing on whether the convict is actually innocent.

The really dramatic thing about this is not the acceptance of an original habeas petition, but the fact that the Court’s order seems to imply that a convict may not be executed if he can prove actual innocence. As demonstrated most recently by the Court’s Osborne decison, it has persisted in absolutely refusing to decide that issue. They have gone out of their way, in fact, to repeatedly leave the question “unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable,” as Scalia said this morning.

Troy Anthony Davis was convicted 18 years ago, in Georgia state court, for the shooting death of an off-duty police officer, Mark Allen McPhail. At trial, Davis had insisted that he was innocent, though he had been present at the time. The jury didn’t believe him, and there were no constitutional problems with his trial.

Since then, seven of the witnesses against him have recanted their testimony, and evidence has come forward that the prosecution’s main witness was the actual killer. Davis has invoked the Supreme Court’s original habeas jurisdiction, relying on Court Rule 20.4(a) permitting such discretionary powers under “exceptional circumstances.”

A majority of the Court (new justice Sotomayor did not take part) agreed with Davis, found the necessary exceptional circumstances, and transferred the petition to a District Court. The District Court has been instructed to hold a hearing to determine whether evidence that could not have been obtained at the time of trial clearly establishes Davis’ actual innocence.

This appears to have set off quite a debate among the justices, in the middle of their summer recess.

Justices Scalia and Thomas are adamant that the Court did the wrong thing here. Most importantly, they point out that the District Court can’t grant Davis the relief he seeks, even if it wants to. So this transfer “is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.”

District Courts only have power to release convicts pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. That statute prohibits habeas corpus for claims that were adjudicated on the merits in state court, unless that decision violates “clearly established Federal law, as determined by the Supreme Court of the United States.”

Because the Supreme Court has gone out of its way not to determine the issue of whether actual innocence is a valid basis for habeas release, Scalia and Thomas hold that it cannot be “clearly established Federal law, as determined by the Supreme Court of the United States.”

Justice Stevens, writing for the majority (joined by Justices Ginsburg and Breyer), simply sidestepped the issue. The AEDPA might not apply in an original habeas petition, he mused. And even if it does apply, it might be unconstitutional for it to prevent relief for someone who has established his innocence. Or, in the alternative, one might find that clearly established Court precedent already permits such relief, as it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

Stevens’ closing paragraph, however, makes it clear that he understands that the Court has never dealt with the issue before, but he feels that it is time to create some new law. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” Applying the law as it exists, the way Scalia and Thomas would have the Court do, “would allow such a petitioner to be put to death nonetheless.”

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In the 2008 term, Stevens seemed to be going out of his way to create a legacy. Writing as if he was about to announce his own retirement, his opinions seem to have sought for better principles rather than the application of existing ones. His jurisprudence is not about objective law, but subjective justice.

So this opinion fits right in with his others. To hell with the Court’s insistence on staying out of the “actual innocence” defense. here was a perfect opportunity to force the Court to deal with it once and for all. By sending it to the District Court expressly for the purpose of establishing that defense, he has ensured that the case will re-appear before the Supreme Court to decide it.

If Davis wins, the State of Georgia will surely appeal, claiming that the District Court lacked the power to decide the issue. If he loses, he’s sure to appeal, along with amici like the NAACP, claiming that the District Court abused its power in rejecting his claim.

Either way, the Supreme Court would eventually be faced with deciding the issue of whether actual innocence is a valid basis for a habeas petition.

It looks to us like Stevens is gaming the system for activist purposes. For the record, we firmly believe that actual innocence should trump procedure and all other legalistic concerns. But it remains to be seen whether he’ll succeed in getting the law to shape itself accordingly.