Comments on: Court again upholds California capital instruction

By: Kent Scheidegger

Kent Scheidegger — Thu, 16 Nov 2006 15:20:34 +0000

If SCOTUS accepts a cert petition from a defendant who loses in the highest state court, will the decision be reviewed de novo? Yes. AEDPA has no effect on SCOTUS’s direct review of state court decisions.

By: Jacob Berlove

Jacob Berlove — Thu, 16 Nov 2006 00:55:06 +0000

Kent, thanks for setting the record straight. One more question- If SCOTUS accepts a cert petition from a defendant who loses in the highest state court, will the decision be reviewed de novo? If SCOTUS must review the state court decision under AEDPA’s standard, the prosecution still has the advantage in that its petition deemed certworthy is reviewed under a more generous standard than an analagous petition from a defendant. Certainly SCOTUS reviews of lower federal court decisions are reviewed for unreasonable application of precedent, which is how we got to Belmontes in the first place.

By: Kent Scheidegger

Kent Scheidegger — Wed, 15 Nov 2006 22:43:25 +0000

Jacob, you appear to be under several misimpressions. You seem to think that Brown v. Payton was the primary, if not sole, basis for the argument that the Ninth Circuit erred in Belmontes. It was not. The error was apparent from Boyde v. California before Payton was decided, as Judge O'Scannlain noted in his original dissent back in 2003. On the interpretation of the instruction, you seem to think that Boyde was wrongly decided, as Justice Stevens does, but it was binding precedent, and the Ninth had the duty to obey it. But here is the truly breathtaking misstatement. "The state may incarcerate or execute a defendant if the prosecution wins at either the state or the federal level, whereas the defendant cannot obtain relief unless he or she wins at both...." You actually think that if the defendant wins in state court the prosecution can have that decision reviewed in the lower federal courts? Where on earth did you get such a notion? If the defendant wins in state court and the Supreme Court denies certiorari, the case is over. Habeas corpus is entirely a "heads I win, tail we take it over" proposition in the defendant's favor. A defendant who loses in state court gets limited review in the district and circuit courts, but the state gets none whatsoever.

By: Jacob Berlove

Jacob Berlove — Wed, 15 Nov 2006 02:48:11 +0000

I don’t know why anyone would think there should have been a summary reversal. If AEDPA is taken seriously, a pro-prosecution state decision that is probably wrong cannot be reversed if it doesn’t contradict clearly established Supreme Court precedent. To argue on that basis that a state court judgement must be affirmed, and then use that decision as precedent when AEDPA doesn’t come into play, seems like a bait and switch to me. I also don’t see how good conduct after a crime can remotely be said to “extenuate” its gravity…***
By the way, is there any case law on whether AEDPA might violate the equal protection or due process clause because it gives the prosecution a better chance to appeal a state court ruling than the defendant? The state may incarcerate or execute a defendant if the prosecution wins at either the state or the federal level, whereas the defendant cannot obtain relief unless he or she wins at both (assuming there is no SCOTUS precedent directly on point). Apparently finality is not a concern when it comes to pro-defendant state court decisions. Since the punishments which would be declared unconstitutional by a federal court (that are administered in the name of the state interests of comity and finality) are not balanced by relief for a defendant (who wins in state court) from a chance at federal reversal, the statute would seem to violate due process. This is particularly the case when, ironically, the only way to establish a SCOTUS pro-defendant precedent is where the defendant won in state court, and SCOTUS affirmed in the face of a government appeal, whereas a pro-government precedent (which need not be a SCOTUS one to be binding upon state court) can be established every time. This results in a disproportionate amount of pro-government precedent in criminal law.

By: Kent Scheidegger

Kent Scheidegger — Tue, 14 Nov 2006 18:12:57 +0000

According to Linda Greenhouse in the NYT, “No one at the court on Monday could remember a term that began with a 5-to-4 decision.” Her explanation is that this case was close to summary reversal last term, and the opinions had already been drafted. That is the most plausible hypothesis I have heard so far. A lot of us were scratching our heads when they granted certiorari, wondering why it wasn’t summarily reversed.

The coverage today is summarized here:

http://www.crimeandconsequences.com/2006/11/belmontes_coverage.html

By: Peter Goldberger

Peter Goldberger — Tue, 14 Nov 2006 15:22:31 +0000

TRIVIA QUESTIONS: When previously, if ever, was the first case of the year decided by 5-4 vote? When previously, if ever, was a 5-4 decision issued as early in the Term as November 13?