VERY interesting CRIMINAL day in SCOTUS

At 10 AM eastern, the Court released opinions in three criminal cases, Smith v. Texas, Abdul-Kabir v. Quaterman, and Brewer v. Quarterman. The opinions are here, (via SCOTUSblog--who else can keep up with that?).

The comments on Prof. Berman's SL&P are most interesting: in essence, the Court has no clue as to what it is doing, and a few justices (the "swingers") are at once principled and totally out in left field depending upon whether the right to abortion or the death penalty is in issue.

ALSO: The AP's Frederic J. Frommer reports here on this morning's oral argument in the campaign finance cases; Kristin Jensen and Greg Stohr have this article at Bloomberg; in the Washington Post, Robert Barnes reports here that a majority of the justices appeared skeptical about a key provision of the McCain- Feingold campaign finance act; and Rick Hasen has this post discussing his initial reactions to today's oral argument in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (No. 06-970) at the Election Law blog. (Thanks, SCOTUSblog! You may not be the greatest, but you come close).

Panetti in the Supreme Court Wednesday

From SL & P and Prof. Doc Berman:

Because the issue involves a somewhat crazy issue about a possibly crazy killer, the Panetti case to be argued before the Supreme Court on Wednesday is getting significant media attention. (See my prior post here along with more recent coverage from the AP, from the Houston Chronicle, and from the San Antonio Express.)

SCOTUSblog will also have more on this.

Circuit Trends in Habeas Corpus, AEDPA

When did you last admit to having made a mistake about something? Anything. That is why judicial review, and in particular, Habeas Corpus review, remains so extraordinary. It provides a searching and thorough reexamination in a matter of controversy and, where warranted, it requires the finding: judge, you made a mistake. To a judge this must be an excruciating moment, akin to punishment. Habeas writs are granted very infrequently, so that when they are granted that is news. Here are a few items of note recently published elsewhere that I happen to be collecting, and now make available to you, dear readers:

Killing Habeas: Maryland's Unique contribution to the history of Habeas here

President Abraham Lincoln suspended habeas corpus in Maryland on April 27, 1861, two weeks after the Confederate attack on the Union garrison at Fort Sumter. “Lincoln could look out his window at the White House and see Robert E. Lee’s plantation in Virginia,” Akhil Reed Amar, a professor at Yale Law School and the author of “America’s Constitution,” said. “He was also facing a rebellion of so-called Peace Democrats in Maryland, meaning there was a real chance that Washington would be surrounded and a real threat that the White House would be captured.” On Lincoln’s order, federal troops arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, who were jailed so that they couldn’t vote to secede from the Union.

Relief Granted:

	Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006) (6th Cir., 2006) See previous post here.

A Question of Innocence:

	Rittenberry v. Morgan, No. 05-5606 (6th Cir. 11/9/2006) (6th Cir., 2006)

When does procedural default bar federal review? When is a state-court decision based on "independent and adequate state grounds"? Triggering these questions was Confrontation Clause ruling reviewed in Wright v. Quarterman, No. 05-70037 (5th. Cir. 11/17/2006) (5th. Cir., 2006). This case seems to say that you must make a contemporaneous Sixth Amendment objection together with a Hearsay objection under Texas Rules of Evidence in order to preserve Confrontation Clause grounds for federal habeas review. But I was under the impression that the Texas Rules of Evidence are grounded in the federal rules...or does that not matter? But what if the fundamental reasoning for having hearsay objections (and exceptions) was grounded in the Confrontation Clause itself? Can that not be sufficient?

Grant of Relief Affirmed in James v. Brigano, No. 05-4003 (6th Cir. 11/30/2006) (6th Cir., 2006) resolving a question of procedural default

(Ohio Court of Appeals' lengthy opinion denying James's motion to reopen does not frame its rejection of James's underlying claims as a failure to find prejudice or on procedural grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of Appeals did not actually rely on the procedural bar in rejecting either of James's claims, those claims are not procedurally defaulted for habeas purposes)

James's other claim for habeas relief is that his waiver of appointed counsel before the state trial court was not made knowingly and intelligently. As the record makes clear, at no time did the state trial court judge ensure that James's waiver of appointed counsel was knowing and voluntary. At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And at no time did the state trial judge make an explicit finding that James's waiver was knowing and intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly accepted, the idea that James was attempting to delay trial and avoid the administration of justice when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even though "courts [should] indulge every reasonable presumption against waiver of fundamental constitutional rights."Johnson v. Zerbst, 304 U.S. 458, 464 (1938)".

As the district court pointed out, under even the AEDPA standard, the finding that James knowingly and intelligently waived appointed counsel was a failure to apply clearly established Supreme Court precedent because of an unreasonable finding of fact.

Remanded, Writ Vacated on Non-retroactivity: Albrecht v. Horn, No. 04-9005 (3rd Cir. 11/21/2006) (3rd Cir., 2006)

See Previous Post here: St. Aubin v. Quarterman, No. 05-40277 (5th. Cir. 11/21/2006) (5th. Cir., 2006)

Affirmed Conditional Relief: Higgins v. Renico, No. 05-1564 (6th Cir. 11/20/2006) (6th Cir., 2006)

Just in from the Fifth Circuit

Just out is an unusual case, click here, in that TCCA had ordered a review by affidavit after a recommendation (without conducting a hearing) from the trial court to deny relief, following which the district court conducted even more extensive hearing and fact-finding proceedings. Many if not most cases are decided with little or no fact finding below. At least St. Aubins can feel like the courts looked at the evidence in his case. The court also updated its formulation of AEDPA deference, reying on the Neal, Henderson, Collier and Cluck cases from within the circuit, and Williams, Bell, and Rompilla from SCOTUS; and concerning the failure to investigate claim, Miller, 420 F.3d, Wiggins, and Strickland. Because the facts revealed that St. Aubin's lawyer had conducted a pretty thorough investigation and decided not to investigate further or present evidence at issue to a jury the court affirmed the denial of relief.

But it is surprising and highly questionable for the court to rule categorically that it was not unreasonable to investigate mental health history further just because what was discovered was thought to be damaging. That completely discounts the possibility that mitigating evidence might have been uncovered upon further analysis and investigation.

The court also presented some interesting cases and comments on "double edged" evidence.

St. Aubin v. Quarterman, No. 05-40277 (Fifth Circuit, Nov. 21, 2006)

SCOTUS ORDERS OF PARTICULAR INTEREST TO FIFTH CIRCUIT WATCHERS

05-11284 ABDUL-KABIR, JALIL V. QUARTERMAN, DIR., TX DCJ
The motion of petitioner for appointment of counsel is granted. Robert C. Owen, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

05-11287 BREWER, BRENT R. V. QUARTERMAN, DIR., TX DCJ
The motion of petitioner for appointment of counsel is granted. Robert C. Owen, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

05-11304 SMITH, LaROYCE L. V. TEXAS
The motion of petitioner for appointment of counsel is granted. Jordan Steiker, Esquire, of Austin, Texas is appointed to serve as counsel for the petitioner in this case.

Classic Memo to GOP (Oops)
To: Republicans
From: America
For future reference, here’s a quick list of 10 sure-fire ways to lose an election:
10. Nominate your favorite elementary school teacher to the Supreme Court.
9. With pants around your ankles, chase our teen-agers around the Capitol. When caught, shrug.
8. Pull pants back up, stuff all pockets with cash. When caught, shrug.
7. "Exit strategy? Phhhhttt! We’ll work that out when we get there!"
6. Take my house. Give it to your developer buddies. I don’t really need it … I guess.
5. Tell the NYT you’re just a little (yawn) bored with this whole governing thing.
4. Stripsearch my grandma at the airport.
3. "Man, aren’t those people of faith funny, what with their values and stuff? Heh, heh, heh."
2. Muggy weekend in Washington? Vegas junket, baby!
1. Run as a conservative. Govern like a gutless, poll-watching, money-grubbing pol.

Thank you David Eldridge, managing editor, WashingtonTimes.com