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September 22, 2009

Notable (and disturbing?) Third Circuit ruling on AEDPA and the Sixth Amendment

The Third Circuit has an interesting ruling today in a habeas case that, though not exactly about sentencing, seems certain to intrigue readers. The opinion in Thomas v. Carroll, No. 06-2282 (3d Cir. Sept. 22, 2009) (available here) gets started this way:

This appeal presents a factual scenario unique in our experience and a legal question for which we have found no precise precedent.

While Appellant Andre R. Thomas was serving a thirty-five year sentence in a Delaware penal institution, he punched a corrections officer and was subsequently indicted under Delaware law for assault.  Prior to trial, Thomas voluntarily and knowingly waived his right to counsel and was permitted to proceed pro se.  However, after the Delaware trial judge (Superior Court) declined to order the production of all the witnesses and documents that Thomas requested, Thomas refused to participate in the trial.  The case proceeded to jury selection and then trial without anyone representing the defense.  On several occasions, the trial judge provided Thomas with the opportunity to return to, and participate in, the proceedings, but he declined to do so.  Ultimately, he was convicted by a jury, sentenced to eight years additional imprisonment, and on direct appeal, the Delaware Supreme Court affirmed.

According to Thomas, his Sixth Amendment rights were violated because the Superior Court conducted the trial without anyone present for the defense.  If we were writing on a blank slate, we might agree with Thomas that a trial under those circumstances is inconsistent with the fair trial requirement of the Sixth Amendment.  However, this case comes to us on Thomas’ petition for a writ of habeas corpus and our inquiry is limited under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).  Here, the Delaware courts’ conclusion that Thomas’ Sixth Amendment rights were not violated was not contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.  Therefore, we will affirm the District Court’s denial of his petition.

Judge Pollak, sitting by designation, has an intriguing little concurrence in which he observes that, as a result of AEDPA, "there is now no available judicial mechanism for remedying the deficiency that has resulted in what I deem to be a constitutionally flawed conviction and resultant sentence."  That would seem to be a disturbing reality (and thus prompts this adjective in my post title), unless one concludes that Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts.

September 22, 2009 at 12:42 PM | Permalink

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Comments

"That would seem to be a disturbing reality (and thus prompts this adjective in my post title), unless one concludes that Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts."

Whether it's "disturbing" depends on what you mean by "constitutionally flawed," and how far you're willing to go with the idea that the constitution "is" whatever courts say it is.

The Sixth Amendment, by its terms, doesn't clearly apply to what happened here, nor, apparently, does any Supreme Court case. The fact that three judges on a court of appeals would find a constitutional violation doesn't necessarily mean that there is one.

Based on the quoted snippet, I'm not very disturbed. It appears that the defendant tried to stop the trial when the trial court didn't comply with all of his demands, and I'm not aware of any reason for requiring the trial court to acquiesce in a tantrum.

People throw the phrase "constitutionally flawed" around a lot. I'm not disturbed at the suggestion that Congress might have intended to preserve habeas relief for clear constitutional flaws but deny it where the alleged flaws are at the debatable fringe (or cutting edge if you prefer) of constitutional law.

Posted by: anonymous | Sep 22, 2009 1:09:02 PM

The majority and concurring opinions are both great, btw. I did not mean to suggest otherwise in my last paragraph, and I don't think Judge Pollak uses the phrase "constitutionally flawed" casually.

Posted by: anonymous | Sep 22, 2009 1:12:39 PM

I really do not think that a proceeding in which the accused has been permitted to waive both the assistance of counsel and the right to be present can be called a "trial" within the meaning of the Sixth Amendment. It looks far more like the medieval practices against which the Sixth Amendment is meant to guard.

Posted by: JC | Sep 22, 2009 1:43:26 PM

Why is this disturbing at all? Process was available for him--he chose not to take it.

Posted by: federalist | Sep 22, 2009 2:25:42 PM

Hi Doug,

I think one would have to conclude that "Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts." After all, the creation of the statute of limitations in the AEDPA ensured that many constitutionally flawed state convictions would be beyond the reach of the federal courts - in many cases simply because state prisoners were without counsel when the statute of limitations was imposed, and ran. I agree it's disturbing, but I think, post-AEDPA, it happens all the time.

Best,

Ty

Posted by: Ty Alper | Sep 22, 2009 2:34:43 PM

I recommend reading the opinions. They're both reasonably short and well-written. The main opinion (which Judge Pollak joins) includes this in reference to the defendant's arguments regarding his waiver of his right to participate in his trial:

"Thomas is in a similar position to a young man who murders his parents and then seeks the sympathy of the court because he is an orphan."

(11, fn.3)

Posted by: anonymous | Sep 22, 2009 2:47:19 PM

I think that's exactly what Congress intended. Under the prior law, convictions were being reversed based on circuit cases or, in some cases, federal court dicta. Congress wanted to ensure that (predominantly factually guilty) people were only being sprung if the U.S. Supreme Court had clearly established a constitutional right. I personally believe that the "objectively unreasonable" standard is ridiculous, but Congress is allowed to (intentionally) create ridiculous standards.

Posted by: Res ipsa | Sep 22, 2009 2:56:35 PM

I agree with both JC and Federalist. It's not a trial. But on the other hand how can you force someone to participate in a trial if they don't want to. What alternatives does the state have? The defendant won't defend himself and wont allow anyone else to defend him... so there you are.

Nor do the antics of this guy produce much sympathy. And then there is this gem, "The Superior Court also reminded Thomas that he proceeded pro se in his previous criminal trial and was convicted and sentenced to thirty-five years imprisonment."

Just doesn't learn, does he.

Posted by: Daniel | Sep 22, 2009 3:06:47 PM

"unless one concludes that Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts."

Congress was (and is) content to allow all state convictions to be beyond the reach of federal courts. Congress wrote AEDPA to provide only the minimum required by the Constitution.

Posted by: William O. Rights | Sep 22, 2009 3:13:52 PM

"It's not a trial. But on the other hand how can you force someone to participate in a trial if they don't want to. What alternatives does the state have? The defendant won't defend himself and wont allow anyone else to defend him... so there you are."

It would seem to me that refusing to be present for the trial would necessarily operate as a waiver of self-representation. Similarly, one who insists on self-representation really can't be heard to complain that he must attend the trial if he wishes to waive his right to counsel. Even if the defendant does absolutely nothing but sit silent through the entire proceeding, the basic structure of the adversarial system is still maintained.

Posted by: JC | Sep 22, 2009 3:58:10 PM

JC.

"It would seem to me that refusing to be present for the trial would necessarily operate as a waiver of self-representation."

It is. The problem is that he had already waived his right to have someone else defend him.

"Even if the defendant does absolutely nothing but sit silent through the entire proceeding, the basic structure of the adversarial system is still maintained."

But how is that any less of a show trial than what we have here. The judge declined force him to attend and in fact the defendant asked to "have the verdict mailed to him". Under your idea the judge should have forced the defendant to attend so that at least there would have been a body in the room. That's hardly an improvement as far as I can see; there still would have been no defense as a pragmatic matter.

My opinion is that defendant wanted a show trial and that is what he got. I'm not crying.

Posted by: Daniel | Sep 22, 2009 4:07:48 PM

Ty, your comment is completely disingenuous. Why am I not surprised?

What Congress intended was that states could follow Supreme Court precedent "reasonably" and not be overturned by a federal habeas court which may or may not arrive at the right answer. As you know, the Supreme Court cannot deal with every habeas case that comes down the pike--thus there's the very real possibility that the state courts would get things right, only to be overturned by an overzealous federal habeas court.

Congress was interested in protecting states from that. Now, of course, that may mean that some convictions stand that shouldn't. But you make it out as if that's the whole story--it's not.

Posted by: federalist | Sep 22, 2009 4:23:28 PM

Daniel:

"It is. The problem is that he had already waived his right to have someone else defend him."

Yes, but that didn't prevent the judge from revoking his pro se status once he refused to attend the trial.

"Under your idea the judge should have forced the defendant to attend so that at least there would have been a body in the room."

Having the accused present for the proceedings, even if he or she is totally uninterested in them, is far better than permitting what comes dangerously close to an ex parte prosecution.

Posted by: JC | Sep 22, 2009 4:53:39 PM

I'm not sure who 'federalist' is who anonymously said I was being disengenuous, but in any event my only point is that I don't think it is controversial to suggest that the Congress that passed AEDPA was content to allow some number of flawed state court convictions to be immune from federal court review. How could they pass a statute of limitations (that had never before existed) without being comfortable with that concept? I happen to disagree with the legislative decision; I think that it allows far too many flawed state court convictions to evade federal court review. But even if one disagrees on the numbers, I'm not sure how one could deny that some flawed state convictions will be beyond the reach of the federal courts.

Posted by: Ty Alper | Sep 22, 2009 5:53:48 PM

William O. Rights writes, "Congress wrote AEDPA to provide only the minimum required by the Constitution."

Really? Here is what the first Congress, consisting largely of the same people who wrote and ratified the Constitution, enacted:

"Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

In other words, federal habeas was for federal prisoners only, except for habeas corpus ad testificandum. That statute was enforced as written by the federal courts, without even a question as to its constitutionality.

Posted by: Kent Scheidegger | Sep 22, 2009 7:01:54 PM

That's all well and good for the Originalist crowd, Kent, but not everyone subscribes to that particular jurisprudential philosophy. Which is not to say that Originalism isn't a highly respectable method of Constitutional interpretation, of course.

Posted by: JC | Sep 22, 2009 7:13:10 PM

Sometimes I wonder if the Originalist crowd is really trying to back pedal the 14th.

On the case at hand, maybe trial In absentia case law would shed light on what should have been done.

From Wikipedia:

In 1884, the United States Supreme Court held that

the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution. Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).

Arizona Supreme Court in 2004 (based on Arizona Rules of Criminal Procedure):

A voluntary waiver of the right to be present requires true freedom of choice. A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, the right to be present, and had received a warning that the proceeding would take place in their absence if they failed to appear. The courts indulge every reasonable presumption against the waiver of fundamental constitutional rights. State v. Whitley, 85 P.3d 116 (2004)

Posted by: George | Sep 22, 2009 7:48:35 PM

My personal opinion is that the contemporary interpretation of the Suspension Clause must be informed by the subsequent passage of the Fourteenth Amendment and the evolving jurisprudence which has accompanied it.

Posted by: JC | Sep 22, 2009 8:00:06 PM

Ty, why don't you try dealing with the substance of my point, rather than nibbling around the edges. You don't give the whole story, namely the phenomenon of the state courts getting it right, but having the federal habeas court toss the case anyway.

Posted by: federalist | Sep 22, 2009 9:09:25 PM

An overzealous federal habeas court? Tell us please, federalist, what would earn a court that distinction, refusing to watch passively as Congress end runs the Constitution?

Congress often seems not just content but eager to put constitutionally flawed legislation beyond the remedial reach of the courts. Especially if it makes them look tough on crime and therefore wins votes from highly suggestible voters who never think they or their loved ones will ever need judicial-branch protection from the handiwork of congress.

Face it, it would have been a show trial with or without the defendant present...possibly with numerous fellow inmates eager to testify against him in the hope of shaving time off their own sentences.

Throw in the fact the court barred him from obtaining witnesses and documents and you have to wonder (as the defendant apparently did), what's the point?

Posted by: John K | Sep 23, 2009 11:22:28 AM

John K, I think you miss my point. I think, given the realities of the Supreme Court's limited docket, Congress wanted to make sure that reasonable state decisions would not be overturned by federal habeas courts. What they did was strike a balance--some criminals with meritorious claims would lose so that states wouldn't unmeritoriously lose some of their judgment.

Posted by: federalist | Sep 23, 2009 3:33:33 PM

"What they did was strike a balance--some criminals with meritorious claims would lose so that states wouldn't unmeritoriously lose some of their judgment."

So you acknowledge that AEDPA results in unconstitutional convictions being upheld?

Posted by: JC | Sep 23, 2009 5:27:14 PM

A couple thoughts:
1. AEDPA does not mean that unconstituitional convictions are upheld. Rather, it gives deference to state court judgments that are reasonable applications of US Supreme Court precedent. AEDPA does not subscribe to the premise that federal courts are inherently superior to state courts in interpreting constitutional protections. Both systems are equally answerable to and bound by SCOTUS. To the extent that SCOTUS has not spoken to a particular issue, reasonable jurists may disagree about the result in a particular case. AEDPA gives deference to the state court judgment. A reasonable interpretation of precedent does not result in an unconstitutional conviction.

2. The statutory expansion of habeas corpus beyond that originally envisioned in 1789 is initially traceable to the 13th amendment which declared slavery unconstituitional and gave Congress to enforce the amendment by appropriate legislation.

Posted by: ward | Sep 23, 2009 6:02:23 PM

JC, of course.

Ward, I have to disagree with you. The state court could reasonably get it wrong, and the conviction stands. But as long as the state was reasonable, the conviction cannot be attacked on collateral review.

Posted by: federalist | Sep 23, 2009 6:54:36 PM

One can only imagine how much injustice and misery have resulted from what passes for "reasonable" actions by powerful (and often jaded, authoritarian) government officials.

Posted by: John K | Sep 23, 2009 7:21:18 PM

I don't see it as a matter of a state court making a right or wrong decision. Who decides that a result based on a reasonable interpretation of the constitution and which is not contrary to SCOTUS precedent is wrong? The premise of our system is that there are state courts and federal courts--both are equally answerable/accountable to the Supreme Court. Lesser federal courts cannot bind state courts. Unless Supreme Court precedent dictates a particular result, then objectively speaking--a reasonable interpretation cannot be wrong. There may be different points of view and all of them may be reasonable ones. A result only becomes right or wrong when there is a binding decision by the final decisionmaker, the Supreme Court. (Of course, as Justice Jackson explained: "We are not final because we are infallible [right], but we are infallible [right] only because we are final".) Rules of retroactivity are available when SCOTUS makes a decision that is contrary to other state or federal court decisions. However, even under that doctrine, prior reasonable, good faith state/federal decisions are respected on collateral review. State court judgments based on reasonable interpretations of constitutional precedent at the time of the decision are not unjust.

Posted by: ward | Sep 23, 2009 9:08:15 PM

"JC, of course.

And, I assume, you have no quarrel with that? You are comfortable with the notion that AEDPA permits the individual to be imprisoned and/or executed in derogation of his or her rights under the Federal Constitution?

Posted by: JC | Sep 23, 2009 11:36:24 PM

I don't see it as being a question of a right or wrong decision. Who decides that a reasonable state court adjudication of a constitutional question is wrong? The federal court system is not inherently superior to the state court system in that regard. They are co equal court systems. The lesser federal courts do not bind the state courts. They are both equally answerable/accountable to SCOTUS. When the Supreme Court has not issued a precedent that dictates a particular result, there will be several reasonable points of view. None of those is inherently right nor wrong. A Supreme Court decision establishes a final "right" answer and we accept that, although not even because the Supreme Court is always "right" (As Justice Jackson put it, "We are not final because we are infallible, but we are infallible only because we are final.) The dcotrine of retroactivity then exists to cure genuinely unjust results.

Posted by: ward | Sep 24, 2009 2:32:47 AM

"One can only imagine how much injustice and misery have resulted from what passes for "reasonable" actions by powerful (and often jaded, authoritarian) government officials."

Like the ones who decided to let Phillip Garrido out after 11 years for a crime that should have gotten him locked up for life.

Posted by: Kent Scheidegger | Sep 24, 2009 1:46:09 PM

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