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Wednesday, February 09, 2011

Habeas Corpus: A Modest Proposal

I've been following a local habeas case with some interest.  The substantive legal issues may not be especially compelling, but the disquieting institutional dynamics are perhaps more worthy of attention. 

Here's the story.  In 2005, Richard Fischer was stopped by police on suspicion of drunk driving.  A preliminary breath test (PBT) was administered, leading to his arrest.  An hour later, a blood test revealed an even higher concentration of alcohol than had the PBT.  In his subsequent trial on DUI, Fischer sought to introduce expert testimony based on the two tests to the effect that his body was still absorbing alcohol when he was stopped, and he may not actually have been over the limit when he was behind the wheel.  A Wisconsin statute, however, makes PBT evidence inadmissible, and the trial court held that the statutory bar extended to expert testimony based on PBT results.

On appeal, Fischer argued that, so interpreted, the statute violated his constitutional right to present a defense.  The Wisconsin Supreme Court unanimously rejected Fischer's argument just a year ago, in February 2010.  (The opinion is here, and some earlier thoughts of mine on the opinion are here.)  Fischer promptly sought federal habeas relief in the Eastern District of Wisconsin.  Both sides consented to decision by a magistrate judge, who ruled in Fischer's favor based on the same argument that was unanimously rejected by the state supreme court.  Last week, the magistrate judge rejected a motion by the state to amend the judgment.  (The opinion is here.)

So why do I find this disquieting?

One concern is with the cavalier fashion with which the state litigated the habeas petition.  This is recounted in some detail in the magistrate judge's opinion last week.  The PBT admissibility issue is no small matter, but potentially affects what large numbers of police officers across the state do on a day-to-day basis in responding to suspected cases of DUI.  It is quite surprising, then, to read that the state offered no more than a perfunctory, one-paragraph response to the merits of Fischer's habeas petition.  To be sure, the state may have felt secure in relying on a unanimous state supreme court ruling.  On the other hand, while unanimous as to the result, the seven justices split 4-3 on the reasoning, which might have tipped the state off that the case was more difficult than might have first appeared. 

More importantly, the veteran magistrate judge's ruling indicates that there was nothing out of the ordinary in the state's careless response to Fischer's petition.  In other words, the Fischer case seems only one instance of a more general tendency in Wisconsin for the state not to take habeas petitions seriously (if not at the level of the line attorneys, then at least at a structural level in failing to allocate adequate funds for the defense of habeas petitions).  This is consistent with what I see reported in some other jurisdictions, too.  Take a look, for instance, at the series of goofs in Tennessee in Cone v. Bell, 129 S. Ct. 1769 (2009).

The magistrate judge in Fischer suggests that cavalier litigation results from habeas laws that favor the state so heavily that the state normally need not exert much effort to win.  Given the restrictions on habeas imposed by Congress and the Supreme Court, I suppose that de minimis litigation efforts may well represent an efficient and appropriate state policy choice.

I wonder, though, if there are some hidden costs to this litigation strategy -- that is, costs beyond the need to scramble to develop arguments to try to get the occasional adverse ruling reversed.  For instance, to what extent does a dismissive attitude by one party tend to reinforce dismissive attitudes by the court, and to promote a culture of carelessness around habeas litigation?  (The fact that so many petitions are pro se can't help, either -- was it significant that Fischer himself was represented by counsel?)  Also, would more rigorous approaches to habeas litigation help states to do a better job of identifying and promptly correcting wrongful convictions and other miscarriages of justice?

But none of this leads to the "modest proposal" referred to in the title of my post.

What I really find intriguing about Fischer is how it throws into such unusually sharp relief the extraordinary assertion of federal authority over state courts made possible by habeas.  Here's what I mean: A single federal judge -- not even an Article III judge, at that -- overturned a unanimous state supreme court decision that was barely six months old and that squarely addressed the same legal question that was presented by the habeas petition, and the single judge did so not on the basis of case-specific facts, but through broad-brush reasoning that undermines the premises of routine practices by police officers state-wide.

I normally count myself a fan of federal habeas, and I think the magistrate judge's analysis was persuasive on the merits, but I still find myself troubled by the state-federal dynamics that Fischer highlights.

Why the discomfort?  There are several reasons.  First, there are the legal uncertainties created when a supreme court decision is overturned by a ruling that lacks binding precedential status in any court.  State courts will presumably continue to follow supreme court precedent, but under the shadow of uncertain prospects for case-by-case reversal in federal court.  And what are the cops to do?  This will likely all be sorted out in a more authoritative way by the Seventh Circuit, but that will take at least several more months, and perhaps quite a bit more if the state decides not to appeal or something causes this particular case to become moot.

Second, the single-judge reversal flies in the face of the common intuition (often justified, I think) that group decision making, as on a state supreme court, tends to produce more reliable results than individual decision making.  Although habeas grants are commonly appealed, thereby activating multi-judge review in a federal circuit court, the burden is in some respects shifted to the state at that point to preserve the judgment of the state-court system.

Third, in light of the second point, the single-judge reversal seems especially disrespectful of the competence and good faith of state judges.  A somewhat different way of expressing the disrespect point is often made by reference to the disparate treatment of state and federal convictions: while state convictions are subject to review both by a state appellate system and the entire multilevel federal system, federal convictions are only subject to federal appellate review.

Finally, in light of the second and third points, I’m concerned that habeas grants in federal district court may serve to galvanize opposition to habeas, fueling the creation and maintenance of arbitrary procedural roadblocks to habeas relief, of which there are already many.

So, here’s my modest proposal: require that the initial filing and litigation of all habeas petitions take place in the circuit courts of appeals.  If an evidentiary hearing is necessary – which seems not often to be the case – then the matter can be dispatched to a district judge to take testimony and make findings of fact in response to carefully focused questions (sort of the inverse of a lower court certifying a question of law to a higher court).  The ultimate questions, including whether to grant habeas relief, would be reserved for the circuit court.

This would actually be only a small step from the way that second or successive petitions are already handled under 28 U.S.C. § 2244(b)(3), which requires approval from a circuit court before a district court can consider a second or successive petition.

The benefits?  First, this would diminish the awkwardness and confusion resulting when a single judge, perhaps from a single district within a multidistrict state, overturns a state supreme court decision involving a legal question of general importance.  Again, Fischer nicely illustrates the concern.  Under the proposal, we would more quickly get definitive rulings to clarify what the law is for all habeas petitions emerging from a given state.

Second, we might soften the affront to state-court justice by restricting habeas grants to multi-judge panels from our relatively prestigious federal courts of appeals.  This is not to say that the federal appellate courts are perfectly reliable — see, for instance, this recent slap-down of a pair of Ninth Circuit habeas grants by the U.S. Supreme Court – but it is to say that habeas grants will have a greater air of reliability about them under my proposal than in the current system.  And, relatedly, the disparity in the treatment of federal and state convictions will be lessened.

Finally, by eliminating a layer of federal habeas review (i.e., in the district court), habeas litigation might reach closure more quickly and efficiently.


Posted by Michael O'Hear on February 9, 2011 at 11:01 PM in Criminal Law | Permalink


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"Lee raises excellent points, and is absolutely correct that your proposal would be a procedural morass. My guess is that if it happened, it would end up with law clerks, kids with 10 minutes experience, passing judgment on the myriad habeas petitions, many of which are pro se and incomprehensible, but may well have a valid point, because Circuit judges couldn't possibly deal with the volume."

Ironically (or something), habeas is the one area in which both federal district and circuit courts routinely have experience staff attorneys who deal with most of the cases and draft opinions.

Posted by: Jay | Feb 10, 2011 2:45:52 PM

Maybe, though, this points out a converse problem that at least deserves some careful consideration. As I understand the summary -- I haven't read the decisions -- this particular matter turns on the state courts' interpretations of a federal right. There's a longstanding doctrine that state courts are perfectly competent to interpret federal rights; maybe that's the source of the problem, at least in the criminal-law context. Then there's the problem with an elected state judiciary full of "tough on crime" judges that calls into question the ability and/or predisposition of the elected state judges to give a truly fair hearing in the first place.

So my modest proposal would be a different sort of "certified question": When a certified question relating to a federal right arises in a state criminal proceeding, and there is no binding precedent on that particular question, certify the issue to a federal magistrate judge who will determine whether it's a significant-enough question to require a preliminary ruling, and then use the law-of-the-case doctrine to enforce that in the state court.

It's just as modest a proposal as was Swift's.

Posted by: C.E. Petit | Feb 10, 2011 11:02:56 AM

I am skeptical for a different reason than the other commenters are. Can't the state appeal an adverse judgment, and won't that appeal bring in additional decision-makers, just like you suggest? So the "single judge" vs. "supreme court" disparity is very temporary-- it lasts until the state takes the case up and finds out what three more judges think about it.

If your concern is about a burden on the state while the appeal is pending, the only reform that would be needed is some kind of automatic stay pending appeal. But I'm not even sure about that. I've never heard of a state having to give effect to a federal trial court's habeas ruling before the appeal has been decided.

Posted by: WPB | Feb 10, 2011 9:59:52 AM

Lee raises excellent points, and is absolutely correct that your proposal would be a procedural morass. My guess is that if it happened, it would end up with law clerks, kids with 10 minutes experience, passing judgment on the myriad habeas petitions, many of which are pro se and incomprehensible, but may well have a valid point, because Circuit judges couldn't possibly deal with the volume.

But the problem you raise is far more extensive than just habeas. In state court, cursory responses are not merely the norm but a well-entrenched reality in all aspects of practice. Take a look at opposition paper to motions, which are routinely cranked out of old papers and, occasionally, the prosecutor forgets to change the names.

The culture is one of accommodating this lax response, whether because the judges are "tough on crime" or believe that it's just too much work to put in thoughtful and responsive papers, or just accept it as the way things are done, ordinary injustice. Whatever the reason, the lack of effort by prosecutors, and acquiescence by courts, renders sloppy, careless, worthless papers the norm. That's life in the trenches, and until state court judges refuse to be complicit in the sloppiness, nothing will change.

You want a modest proposal? How about judges do their job, demand more than carelessness, and stop excusing the prosecution for being careless with people's lives.

Posted by: shg | Feb 10, 2011 6:03:17 AM

This is extraordinarily problematic for a number of reasons. First, the proposal isn't modest - it's not a short step from existing 2244(b)(3) authorization procedures. Those procedures apply only to successive petitions, which are only a small fraction of the overall number of habeas petitions filed in federal courts. Oh, and by the way, the Supreme Court doesn't have certiorari jurisdiction over authorization proceedings. That's a lot of new mandamus and original habeas petitions seeking supreme court review of the panel decision.

Second, if there's one thing - a single thing - that we've learned from AEDPA, it's that extra procedural hurdles create more - not less - work for the federal courts. That means more judges looking at the cases, longer time from filing to disposition, etc. Motions for authorization can take many months to a year to decide. To get a legal ruling with the force of a judgment, they will have to rule on all the legal issues presented in the initial federal petition.

Third, I'm not sure why even this example is so problematic. The State consented to the magistrate ruling. The magistrate ruling has binding effect because the parties stipulated to it. If you don't like the prospect of having magistrate judges deciding federal law that overrules the decision by a state supreme court, then don't let parties stipulate to it; you don't have to make radical changes to the way habeas litigation is initiated.

Fourth, you can't have decide a lot of 2254(d) cases (even the legal questions) without considerable factfinding. Does the prisoner have an Atkins claim? Get an expert. Did the prosecution withhold evidence in violation of Brady? Go to discovery. These are "legal" questions that require a lot of record development. That is, after all, why the 2244(b)(3) authorization process you reference, require only that the petitioner put forth prima facie evidence that he has a claim. Fifth Circuit factfining in habeas cases. What a spectacle.

Fifth, you overstate the efficacy of state process. In many states, the state supreme court is bifurcated into civil and criminal courts. In the criminal courts, where judges are probably elected (or are appointed by an elected official), what platform do you think the criminal judges run on? It's "tough on crime." There are plenty of reasons to believe that prisoners don't get fair shakes in state courts. State post-conviction representation is notoriously awful, and there's no post-conviction right to counsel - even for claims that can be presented for the first time on post-conviction review.

The modest proposal would be a procedural disaster - for the federal appeals courts, who will see their workload increase tenfold because of habeas petitioners; for the petitioners, who are now subject to rulings by resource-stretched appeals courts; and for the public, which will have to wait longer to realize the interests in finality that our habeas law privileges.


Posted by: kovarsky | Feb 10, 2011 12:50:31 AM

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