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November 13, 2017

Voting intrigue in SCOTUS capital case dissent on latest order list

The Supreme Court wrapped up its formal pre-Thanksgiving public activities toady with the release of this order list.  The list will surely generate news based on the granting of cert in three First Amendment cases, one dealing with abortion issues, one dealing with polling places, and one with some criminal procedure elements.  But sentencing fans, particularly those eager to predict the future of the Supreme Court's capital jurisprudence, will want to give some attention to this lengthy cert denial dissent by Justice Sotomayor in Reeves v. Alabama.  This dissent was joined (only) by Justices Ginsburg and Kagan, and it starts this way:

Petitioner Matthew Reeves was convicted by an Alabama jury of capital murder and sentenced to death. He sought postconviction relief in state court based on, as relevant here, several claims of ineffective assistance of trial and appellate counsel.  Among those claims, Reeves argued that his trial counsel was ineffective for failing to hire an expert to evaluate him for intellectual disability, despite having sought and obtained funding and an appointment order from the state trial court to hire a specific neuropsychologist.  His postconviction counsel subsequently hired that same neuropsychologist, who concluded that Reeves was, in fact, intellectually disabled.  Reeves contended that this and other evidence could have been used during the penalty phase of his trial to establish mitigation.

The Alabama Circuit Court held an evidentiary hearing on Reeves’ postconviction petition, at which Reeves presented substantial evidence regarding his intellectual disability and his counsel’s performance.  He did not, however, call his trial or appellate counsel to testify.  The court denied the petition, and the Alabama Court of Criminal Appeals affirmed. In doing so, the Court of Criminal Appeals explained that a petitioner seeking postconviction relief on the basis of ineffective assistance of counsel must question his counsel about his reasoning and actions.  Without considering the extensive record evidence before it regarding Reeves’ counsel’s performance or giving any explanation as to why that evidence did not prove that his counsel’s actions were unreasonable, the Court of Criminal Appeals held that Reeves’ failure to call his attorneys to testify was fatal to his claims of ineffective assistance of counsel.  The Alabama Supreme Court denied review.

There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffectiveassistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule.  Instead, the dispute here is whether the Alabama Court of Criminal Appeals in fact imposed such a rule in this case.  I believe it plainly did so.  For that reason, I respectfully dissent from the denial of certiorari.

After this start, Justice Sotomayor goes on for 10+ pages to provide great detail on the proceedings below and the errors she sees therein.  Her dissent concludes with a call for a summary reversal and remand "so that the Court of Criminal Appeals could explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance."  This concluding recommendation, along with length of the dissent, leads me to wonder if it was drafted with the hope that there would be five or more votes to send this case back to the Alabama courts given that, as Justice Sotomayor explains, Alabama itself "does not attempt to defend the Court of Criminal Appeals’ rule on its merits."

Of course, the issuance of this dissent shows that Justice Sotomayor could not get five or more votes to send this case back to the Alabama courts.  But, as SCOTUS fans know, only four votes are needed to grant certiorari, and Justice Breyer would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.  I am inclined to guess that Justice Breyer decided to issue a so-called "defensive denial" vote: as explained here, Justice Breyer's vote in Reeves may involve the "strategy by which a justice will vote to deny review because the justice fears that, if review is granted, the Court will reach the wrong result and make bad law."

Because I am not a SCOTUS procedure guru, I am not going to spend too much time speculating about what the voting dynamics might reveal in Reeves.  But in the wake of his Glossip opinion and other subsequent comments and votes, some have been coming to believe that Justice Breyer would now vote in favor of a capital defendant in any and every close or tough case.  His vote to deny cert in Reeves suggests that, in deciding how to resolve capital cert petitions, he is still concerned with matters other than just how he thinks he should resolve each and every particular capital case that comes before him.

November 13, 2017 at 11:00 AM | Permalink


Breyer and more so Kagan [since she's younger] will be playing strategy for years to come so w/o knowing the specifics (this is part of a wider story that I alluded to when referencing William Baude's "shadow docket" article recently) a defensive denial is possible. When justices don't on the record dissent in cases like this (both ways), it should be taken with a grain of salt.

Nonetheless, is very important cases, and lives being at stake is one of them, I honestly wish people like Breyer would explain why they aren't voting in a way that the uninitiated would think is natural. The uninitiated might say "huh, maybe this is a bad case, the person should lose, if Breyer didn't vote." But, it is what it is. As Kimberly Johnson, the SCOTUS reporter noted months back, the liberals specifically have picked their spots. The conservatives have in certain cases too.

Posted by: Joe | Nov 13, 2017 11:19:52 AM

(Kimberly Robinson ... who has a new book out.)

Posted by: Joe | Nov 13, 2017 11:21:10 AM

I can see why Breyer would opt against full review if Kennedy was not inclined to grant summary reversal.

There is language in the Alabama opinion that strongly suggests that an inmate must call counsel at the collateral review hearing to carry the inmate's burden of persuasion on the incompetence prong of an ineffective assistance of counsel claim. The Alabama Attorney General's Office, however, took a narrower read of the opinion, claiming that the opinion does not go that far. Instead, in their view, the opinion merely notes the reasons why it is exceedingly difficult to prevail without calling counsel -- the presumption of competence, the burden of persuasion, and the role of trial strategy.

While my read of the Alabama opinion is that the inmate's "spin" on the decision is probably more accurate than the state AG's "spin," I can easily see a final opinion in a 5-4 split basically adopting the position being argued by the State's AG, affirming the Alabama decision and holding that: 1) it is not an absolute requirement in an IAC case that an inmate call counsel but 2) that it is almost impossible for an inmate to win if he opts not to call counsel.

By having an apparent 6-3 vote with a published dissent from the denial of certiorari, the four "liberal" Justices get to have it both ways. They signal to Alabama and other states that they do not think that there is an absolute requirement that the inmate call counsel while not getting an opinion on the merits that places a very high burden on inmates in IAC cases.

Posted by: tmm | Nov 13, 2017 12:07:13 PM

tmm's analysis is interesting.

I wonder how much these "signals" really do influence the relevant actors.

Posted by: Joe | Nov 13, 2017 12:13:33 PM

My suspicion would be that a statement regarding denial of cert doesn't carry much influence.

Perhaps more when it's a statement regarding what kind of case might be taken (I could see that influencing counsel to better perfect a particular case as a vehicle for the issue under discussion) but not when the statement is about the legal standard that should be applied.

Posted by: Soronel Haetir | Nov 13, 2017 1:30:28 PM

breyer did not vote for cert because he knew the inmate would lose on plenary review and make bad law.

Posted by: hgd | Nov 15, 2017 10:07:38 AM

Breyer did not vote for cert because he knows Kennedy is retiring. I am a court watcher.

Posted by: romanette | Nov 15, 2017 11:46:26 PM

Kennedy's potential retirement does not sound like a plausible explanation for this vote.

We are still early enough in the term that any argument would be held in February or March (particularly as the case was initially heard at the last conference of the October session meaning that if there were four votes to grant, it would have been granted at the October 27th conference). It's been a long time since a justice announced their retirement in the middle of the term and immediately stepped down. (Justice O'Connor announced her retirement in July 2005 but the retirement did not take effect until Justice Alito was confirmed in the middle of the next term. Apparently the last two before that -- both in the 1960s -- were forced retirements -- Justice Whittaker for health reasons and Justice Fortas due to scandal.) I can't see Kennedy departing from the tradition of announcing his retirement at the end of the term.

Now, things would be different if this were February. At that point, new grants are for the following term and justices might be reluctant to agree to take a case that depended on Kennedy for a majority unless they were 100% sure about Kennedy's plans.

Posted by: tmm | Nov 16, 2017 1:37:00 PM

I share tmm's take on the timing. Indeed, if Breyer thought he had Kennedy's vote on the merits, I think he want to make sure this case or another like it was granted ASAP so that it could be heard/decided before Kennedy moves on.

Posted by: Doug B. | Nov 16, 2017 3:42:16 PM

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