A burden too heavy for the habeas petitioner under AEDPA?
At Monday's oral argument in Renico v. Lett (09-338), the Court initially itched to question a trial judge's decision, but ultimately seemed to defer to that court under the standards of the Antiterrorism and Effective Death Penalty Act (AEDPA). (My earlier overview of the case is here and briefs and the oral argument transcript are available on the Renico v. Lett SCOTUSwiki page.)
The judge in Reginald Lett's first trial for second-degree murder declared a mistrial. Before doing so, she received two notes from the jury, worrying about the volume of their voices and inquiring what would happen if they could not reach a unanimous verdict. Immediately before calling the mistrial, she convened the jury; the foreperson indicated that the jury was not going to reach a unanimous verdict. Lett characterizes the judge’s mistrial declaration as hasty, and on that ground challenges his second trial as double jeopardy.
Counsel for the State of Michigan, Joel McGormley, began by chastising the Sixth Circuit for its failure to accord the deference required by AEDPA to the factual determinations of the trial court. As soon as he started recounting the facts, however, the justices began second-guessing them.
Justice Ginsburg pointed out that the foreperson hesitated before answering the judge's question, "Are you going to reach a unanimous verdict?" (The transcript here reads "(No response).") Justice Kennedy asked McGormley whether it would have been "good practice" for the judge to confer with counsel before declaring the mistrial (something she failed to do in Lett's case). Whether the judge conferred with counsel is immaterial, McGormley contended, because she could declare a mistrial over the objection of both counsel. Justice Kennedy also wondered if, when the jury sent their first note, it were heatedly deliberating a second, lesser charge against Lett rather than the murder charge.
Justice Breyer asked McGormley to provide examples of similar mistrial cases: "There are thousands and thousands of mistrials every year and hung juries are not that unusual. How many [cases] have you found where you would say that a mistrial was declared despite facts that are on your side?" McGormley could name none. Lett's case was "pretty far on the abuse of discretion side," Justice Breyer concluded.
Abruptly derailing the search for analogous cases, Justice Scalia quoted AEDPA's instruction that "a determination of a factual issue by a State court shall be presumed to be correct." Then he threw a softball to McGormley: "Given AEDPA, is it up to you to show that this case is within the mainstream or is it up to the other side to show rather conclusively that it is not in the mainstream?" In other words, Justice Scalia implied, the habeas petitioner is the one with the burden to assemble cases. McGormley readily agreed.
It was a pivotal moment, as demonstrated by Justice Breyer's later remark to Lett's counsel that, "I agree with [Justice Scalia's] quotation of the statute; you have the burden."
With encouragement from Justice Scalia, McGormley stressed that, "it's imperative to view this case in the habeas box that it resides." The fact that the jury was deadlocked, he argued, was determined by the state courts and therefore beyond question during federal habeas review "“ unless rebutted by "clear and convincing evidence."
Yet Justice Sotomayor still wanted an example of a case "“ even a theoretical case "“ outside the mainstream. If "abuse of discretion" is a meaningful standard of federal review, some exercise of discretion by the trial judge must be abusive, she insisted. "If he got the note [about loud deliberations] and declared a mistrial, that would be enough [for an abuse of discretion], right? Or would it?" McGormley mentioned one clear example of an abuse of discretion: if the jury itself asked the judge for more time to reach a verdict but he denied it.
Representing the respondent, Marla McCowan asserted that no state court had ever made a factual determination that the jury was deadlocked in Lett’s case, and therefore no deference was required under AEDPA. The only determination made by the Michigan Supreme Court was a legal one–that "manifest necessity" existed to call a mistrial.
Justices Alito and Breyer pressed McCowan to meet the burden articulated earlier by Justice Scalia "“ to cite cases establishing that the mistrial judgment in Lett's case was outside the mainstream. Like McGormley, McCowan had found none.
Justice Ginsburg also seemed now to agree that "clear and convincing evidence" would be required to rebut the trial court's factual determinations. The trial court determined a jury deadlock, she affirmed, and, "If there is a deadlock, a new trial is appropriate." Only Justice Stevens openly adopted McCowan's interpretation, stating firmly, "I don't think the test is deadlock. The test is manifest necessity."
Conceding immense ground toward the end of her argument, McCowan agreed with Chief Justice Roberts that even an abuse of discretion by a trial judge might properly survive habeas review under the AEDPA.