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November 7, 2006

Oral argument in Burton retroactivity case

Now the Supreme Court oral argument transcript in Burton v. Stewart is available online at this link.  Once again I will update this post if/when any parts jump out as extra significant, and readers should feel free to use the comments for this purpose.  Also, the National Appellate Journal's on-line blog edition has these helpful summaries of both James and Burton along with links to the transcripts.

UPDATE: This AP report on the two arguments in the Supreme Court today has this telling lead to set up its discussion of Burton:

The Supreme Court was asked Tuesday to lop 21 years off the 46-year sentence of a Washington state man for raping a teenager, in one of two cases the court dealt with involving long prison terms.

I am pretty sure the question presented in Burton technically was not "Should this Court lop 21 years off the 46-year sentence of a Washington state man for raping a teenager?"  But as well all know, in the media, if it bleeds it leads.

November 7, 2006 at 03:59 PM | Permalink


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The way he asks the question about AEDPA at 25, Roberts definitely seems to think that the watershed exception doesn't survive AEDPA: "if you read AEDPA 2254(d)(1) by its terms."

Posted by: Chris | Nov 7, 2006 4:30:32 PM

We should not forget that these cases are not just intellectual exercises. They involve real people and real crimes. After reading the facts of this crime and Burton's criminal history, I think most people would agree that he should never see the outside of the prison wall again.

A few days ago, Doug, you were applauding what you saw as substantive fairness despite procedural unfairness vastly worse than any procedural problems in Burton's case. I won't go that far. Sometimes procedural unfairness does require overturning a substantively just sentence. We should be very careful about doing that, though. This is a thoroughly deserved sentence, that is relevant, and I see nothing wrong with the AP's lead.

Posted by: Kent Scheidegger | Nov 7, 2006 5:42:48 PM

Burton is a highly unappealing defendant, to say the least. Unfortunately, the Court is deciding a question of law, not a question of fact. Once decided, it will apply in all cases.

The Justices therefore have no choice but to decide the law correctly, even where, as here, the beneficiary is someone who clearly doesn't deserve the break.

Posted by: Marc Shepherd | Nov 7, 2006 6:44:45 PM

Apart from all of that, I agree with Ken's brief in Bockting (incorporated by reference into his brief in Burton) that AEDPA supplants Teague. That said, given the jurisprudential hop-scotch this Court played in McFarland v. Scott -- deeming a request for counsel under 21 USC 848 to be a pending habeas petition justifying a stay of execution under 28 usc 2251 -- I put nothing past this Court.

Posted by: Steve | Nov 7, 2006 8:25:17 PM

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