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February 27, 2007

Waiting, waiting, waiting...

Lots of folks are apparently wondering what's taking the Libby jury so long.  But today's news here of no new SCOTUS opinions has me wondering what's taking the Justices so long on a number of pending criminal justice cases. 

With last week's batch of opinions, the Court has now resolved the majority of cases from its October 30 argument session.  But the two I have had my eye on James v. US (dealing with criminal history predicates) and Whorton v. Bockting (dealing with Crawford retroactivity) are still in gestation.  I assume the fact that these two cases have now taken nearly four months to resolve is a sign of some significant internal debate.  But what else might it signify?

February 27, 2007 at 11:08 AM | Permalink


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As for Whorton, the oral argument transcript gave me the distinct impression that there are strong voices (notably Scalia and Kennedy) in favor of Crawford retroactivity. I think it was Kennedy who spoke of a new right of cross-examination (or some such language).

Obviously, from the perspective of both line prosecutors and appellate states' attorneys, this would be a nightmare. But given the length of time we've been waiting for the decision, it would appear that the Court might actually go in that direction, even though it's rarely done so in the past.

The mind boggles at the fallout from such a move.

Posted by: NCProsecutor | Feb 27, 2007 11:26:25 AM

My guess is that Alito is writing James. Besides the two cases you mention, the Carhart II as well as an enviromental case have yet to be released. Three justices haven't delivered an October term decision: Kennedy, Souter, and Alito. Each one therefore can be presumed to have written the majority or plurality opinion in at least one of the four remaining cases. Given that Alito is serving his first full term, I'm guessing that he wasn'y assigned a "biggy" from the October session. The only case that doesn't seem a "biggy" to me is James.

Posted by: Jacob Berlove | Feb 27, 2007 12:25:05 PM

The October 30 - November 8 session is the second of the term, and I don't see why Justice Alito wouldn't be assigned a "biggy," such as Bockting. I find it difficult to believe that Justice Scalia will really undermine so much of what he has written on Teague just to extend Crawford all the way back. Justice O'Connor did something like that in Penry, and Justice Scalia's dissent was written in acid.

Posted by: Kent Scheidegger | Feb 27, 2007 1:22:41 PM

Isn't there an issue in Wharton about whether Congress abrogated Teague with amendments to AEDPA(sp?)? If so, that could be part of the problem too.

Problem for Scalia on retroactivity is that he has to justify his theory that Crawford's rule has been in place since the framing of the constitution with his desire to call it a "new rule" for Teague purposes.

Posted by: Anon | Feb 27, 2007 1:50:51 PM

Scalia's majority opinion in Summerlin, I think, also militates against him finding retroactivity here.

Posted by: federalist | Feb 27, 2007 2:05:56 PM

Horn v. Banks settled that the AEDPA deference standard is an additional requirement, not a replacement for Teague, which continues as an independent prerequisite for habeas relief. The real question is whether the deference standard somehow implicitly adopted the Teague exceptions. That argument is not based on anything in the language of the statute but rather by raising the prospect of bad results otherwise. See Lawrence v. Florida for an example of how a similar argument fared recently.

Posted by: Kent Scheidegger | Feb 27, 2007 2:58:44 PM

Cheap shot at the Lawrence petitioner and at the dissenters, Kent. On pure statutory construction grounds, the dissenters had the better of that argument. AEDPA is so badly written that there have been and after ten years continue to be many interpretive difficulties. It's just not true that the dispute in Lawrence was between clear language, on the one hand, and a fear of "bad results," on the other.

Posted by: Peter G | Feb 27, 2007 3:30:07 PM

Whatever you think about the policy ideas behind AEDPA, I have to agree that it is one of the worst-drafted statutes ever, right behind ERISA.

Posted by: Marc Shepherd | Feb 27, 2007 4:12:32 PM

Not a cheap shot at all. You read more into my comment than is there. The point of the last sentence is simply that the parade-of-horribles argument didn't convince the Court in Lawrence.

Posted by: Kent Scheidegger | Feb 27, 2007 4:13:30 PM

Speaking of James and criminal history predicates, anyone have a link to the briefs? Also, the California Supreme Court, in People v. Martinez (2000) 22 Cal.4th 106, ruled that a CLETS printout, the rap sheet, is admissible as proof of a prior. Then since, some priors are proved solely on the rap sheet.

What about Arizona v. Evans, 514 U.S. 1 (1995)? While the SCOTUS upheld the conviction in Evans on other grounds, the court overall appears very skeptical of blind faith reliance on records in some instances. Evans was not even mentioned in Martinez even though some corroboration in addition to a CLETS printout might be required under Evans. Why no mention of Evans, and is there a potential conflict here?

There are powerful consequences given the Three Strikes Law and criminal history can make the difference between a severe sentence and a sentence so severe it's bye-bye until you die. Reading the appeals, it appears rather skimpy evidence is used without court records and absolute proof of a prior, simply because the courts and the records clerks are required by statute to be accurate and timely; therefore the rap sheet should be trusted.

Someone is bound to get screwed if they haven't already.

Posted by: George | Feb 27, 2007 5:14:21 PM

George, are you arguing that Evid. R. 803(8) or a state variation thereof does not work here? If there are issues, shouldn't defense counsel be the one to raise them?

Posted by: federalist | Feb 27, 2007 5:37:57 PM

No, they are logically allowed as hearsay exceptions, but there should be substantial corroborating evidence, actual proof of priors in addition to the rap sheet.

Take a for instance. Say someone was busted for a pound of pot and the government destroyed the pot, smoked it or whatever. Should the record of taking the pot into evidence be enough to establish it was pot, a pound of pot, and nothing but pot? Can a piece of paper substitute for the pot itself? By California's standards, because the officer in control of booking evidence is required by statute to be accurate, no need for the pot.

The state often destroyed the records of conviction and only has the rap sheets left. There are many opportunities for errors, especially the further back in time we go before everything was automated. But even with that, I don't think the legislature can legislate perfection.

Posted by: George | Feb 27, 2007 6:04:10 PM


I see that your evidence of the practice of "skimpy" proof is your reading of the cases. As a California prosecutor assigned to prosecute exclusively three strikes cases, I can tell I have never proven a prior solely from a rap sheet and I have never seen it done that way. Regardless under California law, the prior conviction must be proven beyond a reasonable doubt just like the underlying crime. Therefore a good defense lawyer can and should attempt to raise a reasonable doubt by discussing the nature of how those rap sheets are recorded and that mistakes are made.

Posted by: David | Feb 27, 2007 8:41:30 PM


Excellent point about how poorly the AEDPA is written. One would have thought with the amount of needless litigation about what the standards mean Congress would have cleaned it up. The recent mods to the Opt-In provisions, which all parties seemingly, agree have serious constitutional problems, aren't going to help smooth it out.

A quick look at the October 2006 docket suggests interpretation of AEDPA is potentially at issue in 10%+ of the Court's docket (indeed I suspect closer to 20%+ depending on how one counts), this some 10 years after the passage of the Act. Would love to see the 110th Congress take up fixing it, but I suspect it, like much of everything else, will fall victim to the ongoing debate over Iraq.

Posted by: karl | Feb 27, 2007 9:39:32 PM

Karl, maybe if courts would follow the standards of review, then AEDPA would be litigated less at the Supreme Court. AEDPA has been a source of numerous per curiam reversals.

In any event, the concept seems pretty simple . . . . if the state court reasonably found the facts and if the state court reasonably applied the law as it then existed, then no federal habeas relief. Why has that been so hard for judges to figure out? Perhaps because following the law is not high on certain judges's agendas.

What, pray tell, was so hard about Musladin? Middleton v. McNeil, Visciotti, Collins v. Rice et alia?

Posted by: federalist | Feb 27, 2007 10:26:49 PM

Perhaps a substantial number of federal judges have a sneaking suspicion that their oath under Article III to uphold the Constitution of the United States, and yes, the laws also, makes it problematic when a federal statute tells them they may not correct constitutional error, in a case over which they have habeas corpus jurisdiction, so long as the error seems to have been a reasonable one -- particularly when someone's life is at stake.

Posted by: Peter G | Feb 27, 2007 10:54:48 PM

Peter, dress it up how you want, lawlessness is still lawlessness. Are we going to junk rules about waiver too?

And spare me the "life is at stake" nonsense. What really is at stake is justice and the democratic process when lawless judges impose their will instead of exercising their judgment. Seems to me that commitment to the rule of law and the right of the people to govern themselves is far more important than some murderer's life.

Posted by: federalist | Feb 27, 2007 11:37:20 PM

My commitment to the rule of law, dear Fed, kept me fighting for nearly 12 years under a CJA appointment against repeated invocations of "non-exhaustion," "procedural default," and "waiver" until my client, whom you would have referred to as "some murderer," was found by the application of sophisticated DNA testing not to be the one who committed the kidnaping, rape and murder for which he had been convicted and sentenced to death. (One of more than 100 to be thus exonerated in recent years.) So "spare me" your concern for the reasonableness of the Pennsylvania courts that declared most of his issues waived and then affirmed his conviction and sentence, and later twice refused him post-conviction relief, despite the state's adamant resistance to submitting the physical evidence for testing. In the end, a federal judge -- with no claim concerning the DNA technically before him, but "only" a habeas corpus petition and a genuine concern for justice -- told the district attorney that he had two weeks to do something in state court to vacate those convictions or he would find himself answering to the judge in federal court. This subject does not simply represent an intellectual exercise to me. So, if you don't mind my saying so (and even if you do), please "spare me" your sanctimonious blather.

Posted by: Peter G | Feb 28, 2007 12:53:24 AM

First of all, I would take issue with your 100 exonerated statistic. Not all of those who escaped the clutches of the row were innocent, and to the extent that they were not, the procedural liberality of the system is being used to indict it for being overly harsh--sophistry at its finest. Second, while I congratulate you on getting justice for your guy, one wonders how much easier it would be to separate the wheat from the chaff (i.e., people with truly meritorious claims from BS claims) if federal judges would be a lot more circumspect and confine their actions to cases such as your client's? AEDPA didn't come out of the blue. But I wholeheartedly agree that the courts or the executive branch should be open to innocence claims, and certainly, there ought to be little resistance to retesting evidence. However, I think that you would have to agree that the Kevin Coopers of this world make it harder for the Kirk Bloodworths.

But you have to agree, I would think, that federal courts are required to follow the law and that states have a legitimate interest in not having convictions that adhered to the law as it existed when the convictions were obtained being overturned because of some newly minted right. And federal judges are not simply at liberty to ignore AEDPA. We elect Congress to pass laws--that is our right as a people, and the judiciary has no business interfering with that, so long as the laws are constitutional, which AEDPA clearly is. Moreover, the federal courts have no business messing with state criminal judgments (putting aside the innocence issue) in a manner not authorized by Congress. That is interfering with justice, and it is unacceptable. And the "life is at stake" comment, for the vast majority of murderers is needless grandstanding.
When legitimate sentences are delayed or thwarted, justice is being subverted. Maybe you think that sanctimonious blather. It's not.

Posted by: federalist | Feb 28, 2007 1:15:15 AM

David, no offense intended. My concern is with the potential for abuse and is not directed at any one prosecutor or anyone else. It's bound to happen given the too regular confusion on identity in relation to rap sheets.

"During the court trial on appellant's sentence enhancements, the prosecution offered into evidence a certified CLETS rap sheet to prove appellant's 1987 strike conviction. The rap sheet described a white male named Troy John Willis who was born on March 7, 1963 (the same date appellant testified was his birthday), had green eyes and brown hair, and was five feet, six inches tall. The rap sheet listed five other names (including Timothy Lospeech and Troy John Willia), presumably aliases and/or misspellings. The record noted a "potential felony strike entry" regarding a conviction for "459 PC-Burglary: First Degree" on May 8, 1987. The rap sheet noted it was a "non-fingerprint supported record" and stated "Restricted - Do not use for employment, licensing or certification purposes." The rap sheet also stated that there was a "palm print on file"; however, no such evidence was submitted at trial. The rap sheet was the only evidence submitted to prove the 1987 strike conviction. No evidence that appellant was not the Troy John Willis convicted in 1987 was presented. The trial court found that the prosecution had proven the 1987 strike conviction but then struck the conviction in the interests of justice." 2004 Cal. App. Unpub. LEXIS 8067.

Solely on the rap sheet and though there were prints, they were not even introduced!

It's only a matter of time before someone gets a whole lot of time based on a prior they did not commit. If there is a signed fingerprint card or a signed plea deal, or prints, or anything like that, no problem, provided, of course, the it is the defendant's signature or prints.

Posted by: George | Feb 28, 2007 2:35:01 AM

And the question was, could Evans apply? Or is that apples and oranges?

Posted by: George | Feb 28, 2007 12:33:40 PM

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