9th Circuit Habeas Grant

It’s a death penalty case.  And a woman.  You can read about it here, and the decision is here.

So you have the thorny problems of police lying and Brady violations pertaining to the police lying.  The decision is undoubtedly correct on the violation of Brady and Giglio.  Whether it’s a proper case for a federal habeas corpus grant is another question entirely.  You’d think Judge Kozinski would know how to clear all the hurdles, but the SCOTUS has had a field day over the last few years overturning everything the 9th Circuit offers up.

At least when it’s one of those rare habeas grants.  Denials almost never receive any attention.  And non-death penalty habeas petitions almost never do either.

Here’s a question lurking behind the curtain on this one:  what if the co-defendants, instead of refusing to implicate the woman, had falsely done so on the promise of leniency as much more often happens?  In this case the perpetrators never implicated her.  But that is unusual.  It’s easy for police and prosecutors to get someone already in the dock to implicate someone else to save their own hide, and often they know it’s false or at best don’t care.

Judge Kozinski laments the “swearing contest” nature of the trial that convicted Debra Jean Millke.  But a lot of trials boil down to swearing contests.  The deal is that the jury decides who to believe and no one second guesses that.  Almost never, anyway.

Another question:  what if the Brady disclosures had been made, the defense used them at trial, painted the police officer as the liar he was and then the jury decided to believe the cop anyway and still convicted?  Now Debra Millke was convicted at a “fair trial”.  Can you argue that “no reasonable view of the evidence” supports the conviction?  I suppose.  That’s the one standard by which a jury’s decision can be second guessed by some judge or judges.

Never happens though.

Of course, I agree with Judge Kozinski’s decision and so much of the opinion as I have read thus far.  That’s easy.  What’s not easy is getting to the nub of the problem here, and that has to do with intermediate appellate courts and obvious differences in the quality of evidence.

In most places in the US, in both state and federal courts, you have trial courts that do the day to day adjudicating and conduct the trials.  Then the outcome can be reviewed, usually as a matter of right, in what are called “intermediate” appellate courts.  After that there’s no right to anything on “direct” appeal; the next step up is either the highest state court or the US Supreme Court, and those courts hear cases only as a matter of discretion.

Now in the New York state system, the intermediate appellate courts actually have the jurisdiction to reverse a criminal conviction that is “against the weight of the evidence”.  They never do this.  In fact the way they routinely  review trial court proceedings can best be conveyed with dark humor.

This has to change.  Conventional wisdom notwithstanding that intermediate courts of appeals are where “policy” is made, that role must not eclipse or displace (as it does now) the more fundamental one – that intermediate courts of appeals are the only realistic chance a litigant has to right a wrong taking place at the trial level.

Besides, “policy” is such utter bullshit.  It really doesn’t mean anything other than:  the government wins, the bank wins and the insurance company wins.  “Policy” is judge-speak for observing the pre-existing pecking order:  power prevails over weakness, bigger prevails over smaller, higher status prevails over lower status.  Preserving the status quo is always “policy” for those to whom the status quo has been kind.  Like judges.

Reversals of criminal convictions that are against the weight of the evidence should be frequent, rather than non-existent as they are now.  But this is a radical departure from current practice and can only happen, to even a minimal degree, if the criminal defense bar goes beyond making jokes  or blogging about how terrible the “system” is while continuing to “make a living” from it.  And forces the issue.

Scott Greenfield is right.  This is a system failure.  What is he actually doing about it, though?


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