TSON News | Death-penalty symposium: In search of predictability

Death-penalty symposium: In search of predictability

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Death-penalty symposium: In search of predictability

Joseph Tartakovsky is the Deputy Solicitor General of the state of Nevada. He was counsel of record for the 30 amicus states in Davila v. Davis.

Vantage determines one’s approach to death-penalty cases, the most fraught of all legal contests. Academics and citizens often are preoccupied with the humanity or efficacy of taking life to save life. Judges joust, barely beneath the surface, over whether their colleagues seek honestly to enforce the Constitution or disingenuously to reach predetermined outcomes.

Yet I suspect that for those of us toiling in the less hallowed halls of state attorneys general, the ultimate desideratum is something else altogether: clear, stable law, expressed if possible in firm rules that bring order and consistency to the decisions of the U.S. Supreme Court and the federal courts of appeals. It is the states, after all, who defend capital trials for decades afterwards and who must retry or release defendants with overturned convictions.

From this state perspective, the jurisprudence of federal collateral habeas review – the means by which most death-penalty cases reach the Supreme Court – should above all be predictable. Congress recognizes that federal habeas review should address only the most indefensible legal errors in our state criminal-justice systems. So it commands federal courts to leave alone state convictions unless prejudicial legal error is so glaring that it defies any reasonable dispute. In most cases, by the time a habeas case is filed in federal court, it has gone through at least three or four stages of state-level review. This should usually mean that federal courts overturn state-court decisions upholding criminal convictions only when the state courts act, in essence, irrationally.

Isn’t it striking, then, how often the robed figures who accuse state courts of rulings without legal basis are themselves accused of the same? This term, Justice Clarence Thomas, in Buck v. Davis, told us that the Supreme Court “settled on a desired outcome” and then “bulldoze[d] procedural obstacles and misapplie[d] settled law to justify it.” Chief Justice John Roberts, in Moore v. Texas, said the majority “abandons the usual mode of analysis this Court has employed in Eighth Amendment cases.” Justice Samuel Alito in McWilliams v. Dunn faulted colleagues for a “most unseemly maneuver” and “inexcusable departure from sound practice” that included denying Alabama a fair chance to brief the key issue. If these allegations of irregularity are even half-true, that leaves little hope for the state AG bar in getting the predictability it needs.


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Death-penalty jurisprudence is inordinately complex because of the necessity of doing virtually everything reasonably possible to ensure a just outcome. This is to prevent the horror of an innocent wrongly convicted but also to ensure that the rightfully convicted stay convicted, a circumstance, among other things, essential to the peace of victims and society at large. It is not only defense lawyers who are weighed down with the burdens of litigating in this difficult area. State habeas lawyers, in fact, are a special breed – like tax lawyers, at home amid unnerving complexity, but with the addition of the depressing facts that these cases involve. Which brings me to Davila v. Davis.

Erick Daniel Davila was convicted of capital murder for opening fire on a Hannah Montana-themed birthday party in Fort Worth and killing a woman and her five-year-old grandchild, and wounding three other children, in an attempt to kill a rival gang member. In federal court Davila claimed that his direct-appeal lawyer should have challenged a particular jury instruction. But Davila’s state post-conviction attorneys chose to pursue other claims and did not present state courts with a claim that his appellate counsel was ineffective for not challenging the instruction.

Because Davila did not raise his ineffective-assistance-of-appellate-counsel claim in his state habeas proceeding, Texas law barred Davila from raising the claim in state court. And federal courts must dismiss any claims that a former defendant defaulted under state law unless the prisoner is able to meet specific exceptions. (You see the complexity of which I speak.) Now, the Supreme Court has said that ineffective assistance by a prisoner’s state post-conviction counsel is one of those exceptions that can overcome the default of a claim of ineffective assistance of trial counsel. The question in this case, then: Should that exception extend to defaulted claims of ineffective assistance of appellate counsel? Simplified somewhat (habeas lawyers forgive me), the question is whether Counsel A can raise arguments that are normally barred because Counsel B did not raise them. Davila’s lawyers warned that without this appellate exception, even compelling claims of ineffective assistance of appellate counsel could go unreviewed.

The state of Nevada, for which I work, filed an amicus brief. We replied that the law already allows such review where a “fundamental miscarriage of justice” is asserted and that by expanding an exception, the Supreme Court will invite instability, confusion and intrusion on state-court decisions, because “narrow” exceptions, like narrow holes, have a tendency to widen through the force of cases pushed through them. The state interest in settled rules is evidenced in the decision of 29 states to join Nevada’s brief, from Oregon and Alabama to Delaware and North Dakota.

The Supreme Court held, 5-4, for Texas. The majority explained that the exception for trial blunders was narrow; that trial and appellate rights were different constitutional matters; and that, in practical terms, Davila’s rule could “flood the federal courts with defaulted claims of appellate ineffectiveness.” The court also recognized the burden such a rule would place on states and their interest in punishing offenders, in repose, and in respect for state proceedings. Some may wonder if the threatened flooding and burden on states isn’t already underway from the creation of the initial exception for ineffective trial-court assistance (in a case called Martinez v. Ryan in 2012).

The U.S. Supreme Court in 2011 memorably wrote that federal habeas review of state-court convictions exists to “guard against extreme malfunctions in the state criminal justice system.” Habeas lawyers in attorney general offices are liable to wonder if a more accurate depiction of habeas law is that the U.S. Supreme Court exists to guard against extreme malfunctions in the U.S. Courts of Appeal. The Supreme Court will not catch all errors by a federal appeals court, just some egregious ones. In a case my office litigated last year, a dissenter on a U.S. Court of Appeals for the 9th Circuit panel wrote that the majority “makes light of the many rebukes we have received from the Supreme Court for ignoring the demanding standard under which we review habeas cases. I doubt the Supreme Court will be amused.” Amused or not, the court did not accept our petition for certiorari. Thus states continue to be told regularly by federal judges that state-court judges have essentially acted irrationally. And, at the same time, other federal judges tell us that in fact it is federal judges, even U.S. Supreme Court justices, who are in fact guilty as charged.

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