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December 11, 2006

Ninth Circuit reversed on button prejudice case

Over at SCOTUSblog here, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin (background here).  Here are details from Lyle's post:

The Supreme Court ruled Monday that a federal appeals court had no basis for overturning a state court ruling that allowed the family members of a murder victim to wear buttons with his picture during the trial. Six members of the Court said it remained an open question whether the conduct of spectators at a trial, as opposed to activities of the prosecution, could be so prejudicial as to deny a fair trial to the accused.

Justice Clarence Thomas wrote the main opinion in Carey v. Musladin (05-785), and had the full support of five other Justices. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.

After meetings I hope to have a chance to read and comment on this opinion (which appears to be the only major SCOTUS criminal law action today).

UPDATE:  The short majority opinion in Carey v. Musladin (decision here) is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more.  For some additional blogosphere commentary, check out Crime & Consequences and Althouse.

December 11, 2006 at 10:14 AM | Permalink


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Tracked on Dec 11, 2006 5:35:35 PM


What a surprise, another lawless decision by the Ninth Circuit unanimously overturned.

Posted by: federalist | Dec 11, 2006 12:07:47 PM

What a surprise, another alarmist post by federalist. Evidently, the decision was a very narrow one on federal habeas law (AEDPA). That is hardly a "lawless" opinion by the 9th and could indicate some lawlessness in the AEDPA in relation to the traditional use of habeas.

"With three Justices unwilling to support Thomas' opinion, it appeared that that opinion had to be kept narrow in order to hold the votes of a sufficient number of Justices to maintain a majority."

The spirit of the 9th's ruling is still up for grabs, but the state "got off on a technicality."

Posted by: George | Dec 11, 2006 2:21:06 PM

Since AEDPA is an Act of Congress, it can only be "lawless" if it is unconstitutional. If Judge Reinhardt, et al. think that, they should say so forthrightly, instead of evading the statute and binding Supreme Court precedent, as they have been doing for over 10 years now.

Posted by: Kent Scheidegger | Dec 11, 2006 2:44:47 PM

Gee, George, what an incredibly disgusting display of spin. The Court's decision (which you must have not read yet) was a smackdown of the 9th Circuit's decision (which you must not have read either). It clearly held that the 9th Circuit got it wrong on the relevant issue. The state by no means "got off an a technicality".

Posted by: Clarence | Dec 11, 2006 2:53:04 PM

Mr. Scheidegger, any thought on what might be percolating in Irons v. Carey?

Others, federalist's comment was gratuitous, but not incorrect or alarmist.

The most interesting aspect of Musladin was probably the discussion among the Justices about how broadly Supreme Court opinions should be read for AEDPA purposes, which wasn't actually all that interesting. All 9 Justices seemed to agree that AEDPA's pretty clear in all respects necessary to decide this case.

Posted by: | Dec 11, 2006 3:21:22 PM

The comment to Mr. Scheidegger was a response to his statement that Judge Reinhardt should say so forthrightly if he believes that AEDPA is unconstitutional.

Posted by: | Dec 11, 2006 3:22:31 PM

AEDPA is a valid act of Congress, and many judges, particularly certain Ninth Circuit ones flout it. I don't know that there is another word, other than "lawless". Why should the states have to be subjected to the indignity of appearing before judges who are obviously biased. Does the world end if California has to retry Musladin--clearly not, but when judges flout the law, they invite the flouting of their rulings.

Posted by: federalist | Dec 11, 2006 3:33:20 PM

Re status of Irons v. Carey:

Beats the &*%#@$ outta me. They called for briefing. We briefed. That was a year and a half ago. On Oct. 27, 2005, they issued this order:

This case is referred to the Settlement Unit to explore a possible solution through mediation. Submission of this appl is vacated until 60 days from the date of this order. Vacateur may be ext by further order of this panel or the chief circuit mediator.

Nothing of substance since then.

Posted by: Kent Scheidegger | Dec 11, 2006 4:44:44 PM

Federalist really meant time to break up the 9th.

The SCOTUS does not "smackdown" the 9th, but only says they have not yet extended Williams and Flynn to spectators yet, and so that is not clearly established federal law yet, but many of them will seriously consider doing so and they give some good examples of how the 1st Amendment may not apply to spectators.

They are only saying they haven't decided that yet and it was wrong of the 9th to extend Williams and Flynn that far before they do. That is hardly unlawful. A reasonable and lawful person could reasonably make that extension, but SCOTUS says no. They also seem to imply they do not as yet have enough information to make the decision and there was not enough in the record to decide that.

The government has always had a vested interest in victims' rights and rightfully so. The government represents crime victims, after all. The government does this well for those who seek justice through the power of government or we would have more revenge killings, blood lust and tribal wars like in gangs, who prefer not to take advantage of government justice.

What is surprising in this case is that the victims who wore the buttons would likely be the ones who would most want a fair and impartial trial, untainted in any way. They would seem to want the justice the murder victim was denied, and they would seem to be the ones who would want it as pure as possible in contrast to the crime.

One of the arguments in Carey v. Musladin is that there isn't any state interest in the wearing of the buttons by spectators. That may be true, but did the prosecutor advise them on what to wear, or demeanor, or buttons? Did they seek or receive advice from The Office for Victims of Crime or any of it branches or subsidiaries on the state or federal level? Some go so far as to argue that victims' rights, the state, the prosecution and politics are inseparable. Under this argument, any expression of victims' rights in a courtroom could be understood as pro state and pro prosecution. I for one can never argue with Marc Klass' or Mark Lunsford's buttons when they wear them on TV. Who with any heart could? It takes a great deal of effort to think beyond the buttons.

Carey v. Musladin only means the 9th jumped the gun.

Posted by: George | Dec 11, 2006 5:58:33 PM

Au contraire George. Maybe the Ninth Circuit has guessed what the law ultimately will be, although I think it completely silly to give jurors the power of taking away someone's freedom or his life and yet thinking them so easily swayed by a simple button with a decedent's picture. But be that as it may, the Ninth Circuit had no business messing with the state's judgment here. Why, because the law said so. And last I checked, judges are supposed to follow the law, whether or not they like the particular result.

You can euphemize that as "jumping the gun" all you want, but it's lawlessness.

Personally, rather than breaking up the Ninth, I'd rather see some judges appointed to that court who would follow the law. It's time to end the moonbattery that results in numerous summary and unanimous reversals, as well as covering for judges who abuse their power (Manuel Real).

Reinhardt, Paez and Berzon and others are simply embarassments.

Posted by: federalist | Dec 11, 2006 6:13:11 PM

I think the proper description of today's majority opinion is somewhere in between the comments above. It certainly wasn't a smackdown of the idea that spectator action could unconstitutionally prejudice a jury. If anything, it puts the idea more decidedly in play than it was before, because at least three justices are concerned, and it would take only one more justice to grant cert on that issue on a direct appeal -- a circumstance under which today's opinion would have zero precedential value, since it turned on the AEDPA rules and not the constitution.

That said, AEDPA is not a "technicality" and the Ninth Circuit did far more than jump the gun. AEDPA is an Act of Congress setting forth the rules for federal court review of state convictions, and the "clearly established federal law" and "contrary to or unreasonable application" language is at the heart of deference and comity, not a technical part of the statute. As for the 9th Circuit, its holding was more than jumping the gun because it quite manifestly did exactly what AEDPA is supposed to forbid all federal courts other than the Supreme Court from doing -- develop a new rule of constitutional law on collateral attack. It might be "jumping the gun" if it were an incremental extension of a Supreme Court case, but this was a wholesale expansion. I'd have been surprised if even one justice had dissented from the judgment today.

In my opinion, Justice Kennedy's view of this case is the most correct one. He recognizes the validity of the defendant's interest in an intimidation-free courtroom, while recognizing that this is simply not the case in which the Court can address the matter in anything beyond dicta.

Posted by: Matthew | Dec 11, 2006 6:28:07 PM

Sorry, George, you're wrong again. There's a reason why I pointed out that you hadn't read either of the opinions. Now it appears that you've at least read the SCOTUS opinion, but you've failed once again to comprehend the main issue that was involved.

The 9th Circuit didn't jump the gun. It got the law wrong. It held that the situation here was "contrary to the Court's established rule of law" and in the process it virtually ignored AEDPA. It erred in doing so. The SCOTUS once again stepped in to correct an absurd characterization of current federal law. Whether the Court one day decides to make the situation involved in this case unconstitutional is irrelevant, nor will it somehow prove the 9th Circuit right if it does so. It has not done so, nor has any opinion of the Court suggested it. The 9th Circuit purposely ignored the law and it received a smackdown for its actions.

Oh, and one last comment on your ridiculous "jumped the gun" assertion. A very interesting sentence in the majority opinion suggests that the majority might be willing to distinguish past precedent from the issue of spectators. Only Stevens, Kennedy, and Souter made it seem like they wanted to go there. In other words, I wouldn't get your hopes just yet that the law in this area is going to go in the direction you desire.

Posted by: Clarence | Dec 11, 2006 6:30:21 PM

"It certainly wasn't a smackdown of the idea that spectator action could unconstitutionally prejudice a jury. "

I never said that it was. I thought my comment was clear, but I guess not. Today's SCOTUS decision was most certainly a smackdown of the 9th Circuit's majority opinion in the case. The 9th turned AEDPA into some bizarre alien creation which no one recognizes and tried to flip the bird at the law. The SCOTUS clearly said the 9th was wrong in doing so. That's what I meant by a smackdown. I made no mention in that comment of the really irrelevant issue of what the Court might one day hold with respect to the issue of spectators.

Posted by: Clarence | Dec 11, 2006 6:39:16 PM

Then we're in agreement, Clarence, as far as your most recent comment goes. My only qualification of what you've said pertains to your statement a couple comments ago that "[a] very interesting sentence in the majority opinion suggests that the majority might be willing to distinguish past precedent from the issue of spectators. Only Stevens, Kennedy, and Souter made it seem like they wanted to go there." If you're suggesting that today's opinion intimates any view whatsoever on how many members of the majority, if any, would make that distinction -- or how far they would take it -- I disagree. I suspect that at least Breyer and Ginsburg, without whom Thomas's opinion would not have had a majority, would be willing to entertain the extension. They, plus today's concurrers, make a majority of the Court, and thus I think you're a little too dismissive of George's position.

I assume the language you're referring to is: In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectatorconduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial. And although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices.

That last sentence, in addition to being dicta insofar as it speaks to the future, really only serves to show how implausible the 9th Circuit's action was today. It doesn't preclude the members of today's majority from concluding that spectator practices are unconstitutionally prejudicial, only that the applicable law would not stem from Williams and Flynn.

I read the above language as stating the unremarkable principle that the Ninth Circuit tried to find "clearly established federal law" in an area in which there is NO federal law at all, and thus its holding was manifestly wrong.

Posted by: Matthew | Dec 11, 2006 7:27:27 PM

Comments discussing "federal law" should be narrowed to "Supreme Court holdings." So should the first sentence of Lyle's post at the AKINGUMPblog.

Posted by: | Dec 11, 2006 7:57:49 PM

Well, yes. Implicit in what I'm saying is the meaning of that term as construed in Williams v. Taylor.

Posted by: Matthew | Dec 11, 2006 8:00:38 PM

Of course, who can blame anyone for being confused when the New York Times runs a headline such as:

Buttons at Trial Didn’t Bias Jury, Justices Say

No, they didn't rule that, for reasons fully explicated by this comment thread.

Posted by: Matthew | Dec 11, 2006 10:55:08 PM

What I wrote was "could indicate some lawlessness in the AEDPA in relation to the traditional use of habeas.

A habeas appeal that used to be lawful can easily be unlawful now due to procedural and timely errors. We can argue all day if that is due to too many meritless appeals or not, but it is still much more difficult, if not impossible for some, to file lawful appeals though they were traditionally lawful. (see: The Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996.)

Here is another example on a different issue:

People v. Mesa (Cal. Ct. App. - Nov. 14, 2006)

"While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a 'reasonable probability' of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. Opn. at pp. 8-12.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard will afford the essential protection. That is, when as here a defense counsel’s failure to object deprives defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the U.S. Constitution the conviction should be reversed unless the court can make a finding 'beyond a reasonable doubt' the error did not affect the outcome."

The buttons themselves are not the important issue though there is a good chance the wearers wear them to make a statement, possibly to the jury. That is for a later decision. The point here is that habeas is too restrictive and even those with solid constitutional grounds, as opposed to meritless claims that clog the courts, are suffering unconstitutional penalties (in the opinion of many) that in the past were not tolerated. We are lucky to have the 9th.

Posted by: George | Dec 11, 2006 11:05:54 PM

Bear in mind that the defendant has already had an appeal, and his claims have been found not to be "solid," in this case by the California Court of Appeal.

De novo review by a second court would make sense only if we had much greater confidence in the second court's ability to decide the case correctly than we have in the first court. Where the courts in question are the California Court of Appeal or Supreme Court, first, and the Ninth Circuit, second, it is just the opposite, IMHO. When the two disagree, the state courts are more likely to be right.

Posted by: Kent Scheidegger | Dec 12, 2006 12:57:58 AM

Kent Scheidegger, it is difficult to understand your blind faith in government. Our Framers were not so trustful and knew better. Or maybe your faith in is federalism, but why? Here is a "solid" and relatively recent example of federalism run rampant: THE LAW AND HUMAN STERILIZATION.

The Eugenics Record Office and The American Eugenics Society had a mere 1,200 members or so, yet look at all they accomplished, though they said, "This paper has been intended as a work of information rather than of propaganda..." Federalism at times is like a crowd of states with a low immune system against propaganda.

Let's say there is a modern version of The American Eugenics Society. Let's call it The F. Society. Instead of a scalpel, they would use Galton's statistics. They would start a State Legislative Society and craft laws inspired by the old eugenics laws until they pass constitutional test, just as Harry Laughlin crafted the Virgina law that resulted in Buck v. Bell. (To ensure it would pass constitutional muster, they had one of their own, Irving Whitehead, deliberately lose Carrie Buck's case while defending her before SCOTUS. Some might argue that proves she was feebleminded or at least too gullible, but I think it's proof you can't trust the state.)

Back to our fictitious F. Society. Once enough states passed and approved their agenda, SCOTUS, like in Buck, would be less likely to overturn them because they wouldn't be cruel and unusual. How can something so widespread across the states be cruel and unusual? So now, like The American Eugenics Society, The F. Society more or less controls the social agenda. What would elections matter to them? Presidents could come and go, and so what? The SCOTUS could change Justices now and then, and so what? As long as federalism rules, and they control federalism, they have, through their propaganda, the support of the people, and carefully orchestrated precedent through the courts.

Or as Dahlia Lithwick puts when discussing the same case we are: "Congress has told the courts to butt out, and this court is learning to do just that. No wonder Souter is having some sort of existential/constitutional crisis. Who wants to schlep all the way down from New Hampshire to hear a case you're not even allowed to decide?

From our laws, the Nazis adapted their eugenics laws that lead to the Holocaust. If only they had a Ninth Circuit, and if only we did.

Posted by: George | Dec 12, 2006 4:51:03 AM

George, you're either a 1L or you're nuts.

Posted by: Bill | Dec 12, 2006 10:15:52 AM

George, I do not have blind faith in government. The question is the relative degree of confidence in two courts. The argument for de novo review seems to be based on blind confidence in the federal court. Just because the Ninth Circuit says the California state court decision is wrong does not mean that it really is.

Posted by: Kent Scheidegger | Dec 12, 2006 11:36:11 AM

George: I don't get the linking between federalism and eugentics. I'm being serious here. What exactly are you saying? That the Federalist Society and many other conservative group's call for federalism would make federal law ineffective? Do you really think that it could ever go that far? Don't you think that the past eugentics movement was inspired as much by the "breeding" good stock" cultural thinking as by politics? Yes, we have genetics now, and there's a real possibility that we'll have genetic enginering soon. But I doubt that we are anywhere near discovering the genes of political thought. Perhaps you are elluding to something more more and I just missed it (very possible!), but I just don't get your gloom and doom picture.

Posted by: Steve | Dec 12, 2006 1:26:23 PM

Kent, isn't it _federal_ conlaw we're discussing? Finality aside, there's no real comity concerns when it comes to federal law - I've never understood that as a valid reason for AEDPA's constitutionality.

Posted by: anonpd | Dec 12, 2006 1:37:52 PM

Bill, that's a fairly weak post, so weak I can't even be offended by it.

Kent Scheidegger, the time to distrust is dependent on the relative power of each, not on how much more knowledgeable the local court may be regarding the case. Knowledge can be a dangerous thing. History tells us locals can be nuttier and more dangerous to the Bill of Rights than "Big Government," and federalist "experimentation" can run riot. Of course a fair and impartial trial judge will have the most direct knowledge and deliver the fairest ruling based on the facts, and local appellate courts would have the best understanding of state constitutional issues within the state, but it is the higher courts that serve as a check and balance under the broader concepts of the U.S. Constitution. A de novo review is an opportunity to do that.

It is not that they should have taken up Carey and decided the broader issue, and they indicted they did not have enough facts to make that decision anyway, it is that they were powerless to do so had they had the facts.

As Dahlia Lithwick wrote: "Makes you wonder why we have judicial review in the first place, huh?"

Posted by: George | Dec 12, 2006 1:57:21 PM

George, SCOTUS had the opportunity to review the facts on direct review (assuming Musladin pressed his appeal to the Supreme Court after losing in California state court.) It did not. So Lithwick's snarky aside is just plain silly.

Posted by: federalist | Dec 12, 2006 2:20:06 PM

Steve, hopefully my last post explained my position a little better.

For clarification, I'm not trying to accuse The Federalist Society of starting a new eugenics program, and even eugenics itself is an aside, but am only trying to explore their "states' rights" stance, and am arguing that states' rights is not a panacea and can be equally or more dangerous than the Big Government they condemn. The eugenics movement pushed by a small number of citizens went state by state and built their case over the years before Buck v. Bell, which should be overturned. I realize that federalism was the belief in a strong central government, but am using it in the sense of a shift in the balance of power to the states and away from central government, as opposed to centralism that is Big Government. I should have used "states' rights" instead. But to answer your question directly, yes, "states' rights" can weaken the federal Constitution if it goes too far out of balance. I think some of that is intentional even if not to the extreme of eugenics. That eugenicists could accomplish all they did is fair warning against unchecked states' rights. That SCOTUS was powerless to decide Carey is another warning. Maybe because I'm not a lawyer the broader constitutional issues interest me more than if Carey is a right decision based on law. On the other hand, Dahlia Lithwick is a lawyer and she shares the same concern. So do many others.

Posted by: George | Dec 12, 2006 2:50:23 PM

Too, too, funny, Kent Scheidegger, remember Harry Laughlin? He's the one who wrote the Virgina sterilization law that passed muster in Buck v. Bell.

Harry Laughlin received an honorary degree from the Nazi -controlled University of Heidelberg as "a pioneer in the science of race cleansing," only three months before the Pioneer Fund was incorporated.

But I am still not comparing anyone today with the Nazis, but am only saying unchecked "states' rights" needs checked. History confirms that and only SCOTUS can do that. The AEDPA needs amended so they can decide for themselves what cases they decide. Either that or they should stand up and make that ruling themselves.

Posted by: George | Dec 12, 2006 3:20:05 PM

anonpd: "Kent, isn't it _federal_ conlaw we're discussing?"

Yes, it is, and the Supreme Court has said repeatedly over many years that the state courts have just as much authority to decide federal constitutional issues as the lower federal courts.

For constitutionality of AEDPA, see 98 Colum. L. Rev. 888.

Posted by: Kent Scheidegger | Dec 12, 2006 3:27:17 PM

George, there is nothing to prevent the Supreme Court from resolving these issues on direct appeal. So the argument that AEDPA ties the hands of the Supreme Court is specious.

Posted by: federalist | Dec 12, 2006 3:54:55 PM

Maybe I'm misunderstanding this. Not maybe. I don't understand the AEDPA. From President Clinton's sighing statement...

"Some have expressed the concern that two provisions of this important bill could be interpreted in a manner that would undercut meaningful Federal habeas corpus review. I have signed this bill because I am confident that the Federal courts will interpret these provisions to preserve independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary.

"Section 104(3) provides that a Federal district court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in State court unless the decision reached was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Some have suggested that this provision will limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact that come before them on habeas corpus.

"In the great 1803 case of Marbury v. Madison, Chief Justice John Marshall explained for the Supreme Court that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Section 104(3) would be subject to serious constitutional challenge if it were read to preclude the Federal courts from making an independent determination about "what the law is" in cases within their jurisdiction. I expect that the courts, following their usual practice of construing ambiguous statutes to avoid constitutional problems, will read section 104 to permit independent Federal court review of constitutional claims based on the Supreme Court's interpretation of the Constitution and Federal laws.

"Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when "the applicant has failed to develop the factual basis of a claim in State court proceedings." If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which "the applicant has failed to develop the factual basis" of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court.

"Preserving the Federal courts' authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners' rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power "to say what the law is" and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal."

Has the interpretation and enforcement turned out differently than President Clinton thought it would? Or to rephrase the question from Federal Habeas Corpus Review...

"If this were not enough, on April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. 104-132, 110 Stat. 1214 (1996). Don't be fooled by the title; the statute has little to do with terrorism. Rather, Title I of the AEDPA makes important changes in the statutes governing federal habeas corpus practice for state prisoners and enacts a new set of statutes to govern federal habeas corpus practice in capital cases in "opt-in" States. Upon signing the law, the President claimed that the AEDPA was not intended to make substantive changes for granting the writ. See Statement of the President of the United States upon Signing the Antiterrorism Bill, 1996 WL 203049 (White House, April 24, 1996). The President explained that he would not have signed the bill if he thought the federal courts would interpret it "in a manner that would undercut meaningful habeas corpus review." Id . It is too early to gauge the impact of the AEDPA on federal habeas corpus practice. Some experts fear that President Clinton drastically understated the impact of the new statute (particularly in light of the new review standards articulate in 28 U.S.C. § 2254(d))."

Were the experts right?

Posted by: George | Dec 12, 2006 4:51:09 PM

President Clinton's "sighing statement" as you call it (great term, even if unintended), was an unsuccessful attempt at spin. During the congressional debate, every member who spoke on 2254(d), for or against, called it a "deference" provision, and that is how the Supreme Court has interpreted it.

Posted by: Kent Scheidegger | Dec 13, 2006 1:35:33 PM

Kent, that doesn't sound right to me. Why else would there be a removal procedure in non-habeas civil litigation? I've seen a lot on finality, and on the surface you may be right - the state courts often do have the authority for that and like reasons - but it seems the federal courts are the last stop for federal habeas issues for a reason. Also, I'm not arguing that AEDPA is unconstitutional, although I do see your line of thought. It just seems that your argument proves too much and would allow for a complete suspension of the federal writ if only the states "promise" to try their best. Recent cert grants and cases in the SCOTUS and the Fifth Circuit regarding Texas' special issues scheme imply that the states don't do this very well, especially when it comes to capital post-conviction.

Posted by: anonpd | Dec 13, 2006 4:28:30 PM

anonpd, with respect to the Fifth Circuit and habeas, it must be kept in mind that (a) Texas has executed almost 400 prisoners, so the volume of capital appeals probably has something to do with the number of cases that get to the Supreme Court and (b) that the Supreme Court made a complete mess of Texas' old capital punishment scheme.

Finally, let's remember what AEDPA does--it surveys the landscape at the time the state decision was final and says that the state decision won't be overturned unless it was contrary to Supreme Court precedent or an unreasonable application thereof. How is that controversial?

Posted by: federalist | Dec 13, 2006 7:14:44 PM

It just seems that your argument proves too much and would allow for a complete suspension of the federal writ if only the states "promise" to try their best.

anonpd, I'm not quite sure where your policy argument ends and your constitutional argument begins. The use of habeas corpus to collaterally attack final judgments of courts of general jurisdiction was unknown at common law and is not required by the Suspension Clause. Regarding state prisoners, it is quite clear that Congress can forbid federal habeas for them altogether, because the First Congress did exactly that.

The policy question is more difficult. Looking around the country, it appears that federal habeas review of state judgments is most vigorously exercised where it is least needed, and vice versa. The tricky question is how to restrict habeas enough to stop the atrocious decisions the Ninth keeps pumping out while still keeping enough there to correct genuine injustices.

The deference standard was Congress's best shot at it. I would have done it differently, but I think this is workable if courts will follow it in good faith.

Posted by: Kent Scheidegger | Dec 13, 2006 9:44:50 PM

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