Habeas Schmabeas: Scalia’s Hunger For Deterrence
Dec. 1, 2015 (Mimesis Law) — Damnit all, the Sixth Circuit has done it again. Ignoring the Supreme Court’s directive that the writ of habeas corpus is for entertainment purposes only, it foolishly reversed a man’s conviction. As Justices Scalia, Thomas, and Alito pointed out in dissenting from the Court’s denial of cert, this simply is not done.
First, a little detail about the case. A man named Charles Miller was killed in 1988. In 1999, police began speaking to his former associates, and spoke to a man, Charles Dean Lamp, who admitted that he had murdered Miller and led police to his property, where the body was buried. So far, so good.
But Lamp claimed that the defendant, Junior Blackston, had made him do it, along with another man named Simpson. Both Lamp and Simpson testified against Blackston at trial. Lamp received a reduced sentence and a manslaughter plea, while Simpson received total transactional immunity for his testimony.
The State spoke to Blackston’s former girlfriend, to see if she remembered anything about the 11-year-old incident. Initially, she said that Blackston had been at home with her that night. Then, when the State offered to dismiss an array of charges against her and her boyfriend, she remembered that Blackston had made a bunch of incriminating comments about blowing someone’s head off.
So Blackston had a trial, where he was convicted. But, because the trial court made a mistake informing the jury about the extent of Simpson’s immunity deal, he got a do-over.
Both Simpson and the former girlfriend then recanted, saying that their testimony had been induced by fear of the actual murderer (Lamp), and by overwhelming prosecutorial pressure.
Neither of these witnesses were willing to testify again, likely because of the serious risk that the State would take their deals off the table, or even charge them with perjury if they said that Blackston was innocent. They both came to the stand and refused to answer questions.
The State then simply read their prior testimony to the jury verbatim. Now, it was Blackston’s turn to cross-examine. But, once again, neither witness was willing to talk to his lawyer.
So, he did exactly what the State had done. He attempted to read their prior sworn statements (in the form of affidavits saying that he was innocent) to the jury. But the State stamped its feet and said it wasn’t fair. In response, the judge excluded the evidence.
After the Michigan Court of Appeals was twice reversed for attempting to give Blackston a new trial, the Supreme Court of Michigan ruled that the trial court made the right decision. Evidence of innocence would only mislead the jury.
So the Sixth Circuit reversed, saying that the right of confrontation allows an opportunity to rebut the testimony of a witness even when that witness is “unavailable.”
In this case, the only effective way to confront the witnesses whose testimony was read to the jury was to submit their other sworn testimony, which tended to establish that Blackston had been at home with his family when Miller was killed.
And Scalia was not happy with the result.
That will not do. The Sixth Circuit seems to have acquired a taste for disregarding AEDPA…We should grant certiorari to discourage this appetite. (Citations omitted).
The AEDPA that Scalia is referencing is a set of rules, enacted in 1996, that make it almost impossible for a prisoner to challenge his imprisonment in federal court. Although, in theory, the Constitution prohibits the suspension of the writ of habeas corpus except in times of rebellion or invasion, there is apparently nothing stopping Congress from nibbling around the edges a bit.
See, to get your conviction reversed on a federal habeas claim, it’s not enough to prove that the jury was given bewildering jury instructions, or that the prosecution put on ten hours of victim impact testimony, or that the judge shot at you from time to time with a BB gun that he pumped surreptitiously under his robe.
What you have to do is prove that, at the earliest opportunity, you brought up a strong constitutional claim, and that the State court unreasonably ruled against you.
And it can’t be just any run of the mill constitutional claim either. You don’t win just because that exact issue was already resolved by your state’s supreme court, or by the federal circuit that you live in. Instead, you have to establish that your claim is one of those rare, special constitutional issues that the Supreme Court has expressly decided on, and that your conviction was based on an unreasonable reading of that Supreme Court precedent.
Here, Scalia says, the Sixth Circuit made the Confrontation Claim too broad and vague by talking about a defendant’s “general” right not to have the government hide essential exculpatory evidence from the finder of fact, rather than finding a Supreme Court case exactly on point addressing the issue. Even though, as Scalia concedes, the trial court was probably wrong to exclude the evidence, it’s not the job of habeas corpus to free people just because they were wrongfully convicted.
Hell, if you take Scalia at his word, it’s not even really the job of habeas corpus to free people who are certainly innocent of any crime, so long as they have received due process.
Scalia’s threat to “discourage” the Sixth Circuit’s appetite for reversing convictions was not idle. Because habeas, which was once called “The Great Writ,” has been legislated into a shadow of its former self, the Sixth Circuit has been reversed numerous times for helping sympathetic defendants with strong constitutional claims.
The reality of habeas is best summarized by Justice Sotomayor, as reported in Slate.
“What a wonderful system we’ve created,” she says, speaking with a kind of angry intensity that makes the room go a little quieter. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them,” she says. “And when they are wrong on a legal conclusion applying our test, we jump in and reverse them.” In other words, when a judge’s error disadvantages the defendant, the court forgives it. When a judge’s error disadvantages the prosecution, the court corrects it.”
One can only hope that Sotomayor, along with others on the Court, might be hungry for a change.
 It’s a bit more complicated than this, actually, probably because it’s designed to be impossible for pro se litigants to navigate. This makes it all the more remarkable that Blackston was pro se when he prevailed in the District Court.