Going on now at SCOTUSblog.
UPDATE: "Time to roll out the hashtag that one of our readers suggested: #waiting for fisher." Fisher is the affirmative action case we've been waiting for since last fall. There were 2 new cases today, both dealing with procedural matters relating to raising constitutional challenges to criminal convictions.
May 28, 2013
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"perfect justice through abundant procedure"
That's Scalia's description of the majority's approach in Perkins (one of the two cases released today), and it fits both cases. Perkins dealt with the federal statute of limitations for federal habeas petitions attacking a state court conviction; Trevino concerned the impact of a state prisoner's failure to raise the grounds for his federal habeas petition in state court under the state's procedures. Both cases are 5-4; both continue the Court's unfortunate focus on imposing ever more complex rules of procedure in criminal cases.
It's a pity. For example, in the death penalty case (Trevino) the Court excuses a failure to offer alleged mitigating evidence when the state court was considering the penalty phase of a capital case. The lower courts had dismissed Trevino's petition because he had not raised the grounds for relief in a timely application in state court. the SCt reversed, saying that as a practical matter, the Texas procedural rules foreclosed Trevino from raising the claim in a timely manner in state court.
Lost in the procedural shuffle was the nature of the Trevino's underlying claim. He says his state court attorneys screwed up at both the penalty phase in state court, and in the state appellate proceedings. The error at the penalty phase was that his attorney didn't offer enough mitigating evidence -- what that attorney left out was evidence had to do with the defendant's childhood, possible fetal alcohol syndrome, etc. Defense counsel had offered some of that, just not enough. Yet the jury obviously had enough before it to know that Trevino had "issues" and was far from a normal dude; adding more detail, explaining the "issues" in greater depth, wiouldn't have changed much. Nevertheless the Court order a limited do-over -- the lower courts now have to look at this claim on the merits rather than treat it as procedurally barred.
Adding procedural complexity is a poor way to deal with conflicting views about the death penalty, which (IMO) what this is all about. Far better to junk the notion of 'death qualified jurors', along with the endless procedures, and allow a fair cross-section of jurors (including those with doubts about the propriety of the death penalty) to decide the case. If such a jury can't agree on a death sentence, that should be the end of it (even if the ground for juror refusal is rooted in a view that death is never appropriate). That approach has its own drawbacks, among them the idea of allowing a jury effectively to nullify a state's policy choice to permit the death penalty. But no system is perfect, and in application the drawbacks here would amount to accepting an element of undeserved leniency for a particular defendant. That would be far preferable to today's endless focus on procedure for its own sake, where the real concern is uneasiness with the death penalty.
It makes a mockery of justice if the justice system bars the admission of exculpable or mitigating evidence because of procedural rules. I understand the need for finality but depriving someone of their life or liberty because of procedural reasons that bar factual evidence puts in question the legitimacy of the justice system.
waiting for me? No need...I'm here every day and have been for years.
Right, doc?
Ron Fisher
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