Inverting reality is an ongoing problem in the justice system. And it’s a serious problem. Problems don’t get any more serious.
Federal habeas corpus is really a fascinating area of law, loaded with subtle and profound issues of federalism, comity, separation of powers, guilt, innocence, power, truth, evidence. I could go on. Maybe I will.
It’s also significantly wide open, for the most mundane and practical of reasons: there is no money in representing prisoners. Almost never, anyway. Lawyers need to make a living, you can’t make a living doing federal habeas corpus cases and in addition to that it’s an exceptionally difficult area to understand, requiring a lot of time, effort and study.
Accordingly, there are really only two groups that are considered well versed in federal habeas corpus law: the attorneys – usually state’s attorneys general – who represent the jailers of the prisoners; and on the prisoners’ side, lawyers whose real mission is opposition to the death penalty.
You see, in practice federal habeas corpus is regarded primarily as a condemned man’s last chance to avoid execution. Indeed federal courts, including the Supreme Court, distinguish (improperly, in my opinion, but that’s another subject) “capital case” habeas corpus proceedings from non-capital cases by the very manner in which the proceedings are initially filed and docketed.
Nevertheless, for the last few years I have made it my business to understand federal habeas corpus law such that I can claim, plausibly and without arrogance or exaggeration, that at this point I am one of the most knowledgeable lawyers in the country among those who might represent prisoners, if only because there isn’t any competition. In the course of so doing, I have encountered attorneys for the state who practice in the area and are recognized as “experts” in the field. What I have found is that they know or understand little – almost nothing, in fact – about federal habeas corpus law. One reason is that they don’t need to know or understand anything, because it would be fair to say that federal habeas corpus petitions are never granted.
So the situation is that on the prisoners’ side of federal habeas corpus you have lawyers who aren’t really interested in habeas corpus but are rather interested in abolishing the death penalty, and anything that doesn’t further that objective gets no attention. And on the jailers’ side you get lawyers who probably don’t know or care much either – because they don’t have to and they’re getting paid either way – but generally oppose any use of the great writ at all, on whatever grounds and making whatever arguments they feel they can get away with, and experience teaches them that they can pretty much get away with anything. Because like I said, it is fair to say that federal habeas corpus is never granted.
Here’s one of the anomaly resulting from this practical reality: it’s pretty fundamental to federal habeas corpus law that you have to “exhaust” state remedies before you ask the federal court to intervene. But is there an exception to the “exhaustion requirement” when the state officials secured their conviction of a state prisoner through the commission of a federal crime? That question was explicitly left open by the United States Supreme Court in a case called Frisbie v. Collins. When the SCOTUS explicitly leaves a legal question open, it usually means they intend to take it up as soon as they get the opportunity.
Frisbie v. Collins was decided in 1952. That habeas-specific legal question has been explicitly open for more than 60 years. One reason being that it has little relevance to death penalty cases.
All this aside, though, I have to admit that California Assistant State’s Attorney Stephanie Brenan knows what she’s doing, although under the circumstances that is not a Good Thing. We’re still waiting to see if her arguments carried the day.
You should read the linked transcript if you’re interested in how the justice system can get as fucked up as it is. It’s almost as if no one is really at fault for it.
Almost. Judges are at fault, of course.
But the problems become thorny for reasons that in some ways are innocent enough. Ms. Brenan is arguing, basically, that there has to be a presumption that state court judges do their jobs. And it might be considered odd under the circumstances, given what I have been through at the hands of state court judges, but I agree with her. There has to be a presumption to that effect. If there wasn’t, it would more or less fatally undermine the legitimacy of state court criminal proceedings.
But here’s the big problem with it: it is completely, overwhelmingly contrary to observable reality. The rule, almost without exception, is that state court judges do not do their jobs. At all. And as I have said many times, the system itself recognizes this implicitly, because we have juries. If judges could be relied upon to do their jobs you wouldn’t need juries.
This is one of the things that makes federal habeas corpus law so interesting, and so important. It exists in a kind of legal suspended animation, bridging the gap between an axiom – that state court judges presumptively do their jobs – and the exquisitely uncomfortable reality that everyone remotely familiar with the system understands: that the axiom is as utterly false as any proposition can be.
Stubbornly clinging to a known falsehood is one of the worst things a human being can do morally, spiritually and intellectually. Our justice system would virtually compel precisely that result except for two things: a) juries; and b) federal habeas corpus.
Ms. Brenan did a very good job on her SCOTUS argument. I hope she loses anyway. It would be difficult to imagine how more damage could be done to what’s left of our justice system than by her winning.
(h/t Jonathan Kirshbaum at the Habeas Corpus Blog)