This case may not be one of the few that gets Supreme Court review (“cert grant”) this term. But it’s a good bet.
Why? It’s a capital (death penalty) case. The SCOTUS likes capital cases because they seem to believe that criminal matters are generally not worthy of their attention unless someone is going to die if they don’t take a look.
We’d like to say we are kidding about that. But we’re not.
Second, although the Petitioner is not the government – and that, dear readers, is the only contrary indicator to a cert grant here – he is represented by one of the bestest firms, Sidley Austin. Third, SCOTUS requested the record, rescheduled the case once and has now “relisted” it three times. These are all unambiguous indicators of SCOTUS interest, and are strongly associated with cert grants.
Oh, one more contrary indicator, though: no amicus briefs.
On that last point, we think it’s particularly telling here. Why?
Here’s the issue, about which there is disagreement in the federal circuit courts of appeal and the state supreme courts: when a person convicted at trial raises an “ineffective assistance of counsel” claim in a collateral proceeding but does not produce his allegedly ineffective trial counsel as a witness, does that result in a conclusive presumption that there was a legitimate strategic reason for counsel’s alleged deficiencies and therefore no claim for ineffective assistance?
And here’s the nature of the dysfunction: who cares? The courts that hold ‘yes’ are evidently reasoning that there must be a legit strategic reason, otherwise counsel would have an obligation to his client to say he didn’t have one, and thus the only basis for not doing so would be that he can’t say that because it would be perjury (We assume these courts don’t apply the conclusive presumption rule where the trial counsel is dead or unavailable).
The courts that hold ‘no’ – the far, far better rule in our view, not that that matters – would rather let the prisoner make his case however he can, with or without the participation of his trial counsel. Before they deny relief anyway.
The overwhelming majority of claims for post conviction relief, that is – north of 99% – are denied. Those few that are granted will often have an ineffective assistance of counsel claim involved, but how often will the conclusive presumption rule determine the outcome? Practically never. You’re talking about a handful of cases per decade, nationwide. If that. You could make a good argument that this particular fine point will never make a difference in any case.
The SCOTUS and its echo chamber have completely lost touch with reality. The problems in our criminal justice system are much more basic and fundamental than Mr. Reeves’ problem, but his case is receiving serious consideration for reasons that are both, and at once, absurdly esoteric and dismally shallow.
Reeves, in other words, is a SCOTUS case that is entirely the product of an irrelevant discussion taking place among death penalty abolitionists and the SCOTUS echo chamber. These discussions have become so insular that the checklist criteria for selecting cases “worthy” of SCOTUS review have supplanted the more basic consideration of whether the case genuinely has a wide enough significance to warrant a plenary SCOTUS review that is granted only about 1% of the time.
Put another way, this is the nearly complete triumph of form over substance.
This could only happen in the law. If it happened in computer manufacturing the computers wouldn’t work. If it happened in bridge building the bridges would fall down.
Update: Denied. Apparently the majority may have agreed that this issue is too seldom presented, to say nothing of dispositive. Not that we’re happy about it. As Justice Sotomayor points out in dissent, this means Mr. Reeves faces execution. And frankly, the procedural history seems to indicate that the whole thing was deliberately constructed by death penalty abolitionists to throw a wrench into the death penalty machinery; that is, if you read the dissent, the defense lawyers at trial made a motion to get the funding for a neuropsychologist, the motion was denied but then granted later on a reconsideration motion. Then the defense did not produce the much fought over expert at the sentencing hearing. Another possibility, of course, is that they didn’t trust the trial judge or the jury to accept the mitigating evidence under any circumstances and figured having the issue for an appeal was a better shot than trusting the trial judge and jury, and it looks like they were probably right about that: three relists at the SCOTUS means they came close.