Questions Presented in Today’s Grants
We have compiled a list of the questions presented in all granted cases; the list can be downloaded here.
Continue checking back with us this afternoon as we make available the complete set of Supreme Court filings in the cases granted today.
Arizona’s brief in Schriro v. Landrigan has a sharp tone. It implies that the en banc panel majority shaded the facts in its opinion. It also seems to reflect a frustration with the Ninth’s documented history of blowing off the strictures on its authority contained in AEDPA.
Comment by federalist — September 26, 2006 @ 12:26 pm
The cert in the Landrigan case does have a sharp tone, so what? They are trying to get the attention of the people reviewing the cert, although frankly, they have that because it’s a 9th Circuit case. For all it’s “sharpness”, the conclusion is basically whining about losing in the past.
What will be interesting is whether the Court chooses to only decide the issue on the narrow AEDPA grounds that were presented, or whether the Court will use this case as a means of deciding once and for all what defense counsel’s duty is when his client refuses to allow mitigation to be put on. They do not have to reach that issue to decide the case, but I think it is likely that they will.
Comment by indadvocate — September 26, 2006 @ 1:20 pm
Arizona seems to have a policy of attacking on standard of review grounds rather than defending the merits of its actions in criminal cases. I listen to every 9th Circuit oral argument, and you can always tell when it’s Arizona (without looking at the caption, duh). The lawyers won’t answer direct questions from the judges, rather they question the judges’ right to ask them. Every argument contains a complaint about the affront to their sovereignty of having to appear in federal court and the lawyers frequently sigh as if in frustration with the district court or court of appeals.
Comment by r.friedman — September 26, 2006 @ 1:55 pm
The Ninth Circuit insists on reviewing state criminal cases de novo, even while denying that they are doing so, ten years after Congress forbade them to do that. Arizona merely insists that the judges obey the law. With neither sword nor purse, respect for the law is the only thing the judiciary has to give force to its words, and that respect is being severely corroded by the continuing disregard for an Act of Congress that we see all the time in the Ninth. There are now six habeas cases on the Supreme Court docket, and five of them are from the Ninth.
Comment by Kent Scheidegger — September 26, 2006 @ 2:27 pm
Surely none of you are suggesting that courts ever fail to adhere to precedent? Next you are going to say there is no Easter Bunny.
Comment by Norma Chase — September 26, 2006 @ 2:33 pm
indadvocate, the tone of your post is rude, so what? I think it remarkable that the AG of Arizona, which must litigate in front of these oft-reversed judges quite often, would so sharply call out an en banc panel with respect to the facts of a case. It shows some moxie.
I agree with you that it will be interesting to see the grounds upon which the Court decides. I don’t agree with your characterization of “whining” about losing in the past. The Ninth Circuit’s record with respect to habeas and AEDPA, to be charitable, is pretty bad. And to paraphrase a statement attributed to Judge Reinhardt, SCOTUS cannot reverse them all, so it is highly likely that erroneous Ninth Circuit decisions have overturned perfectly valid Arizona criminal judgments. Thus, it seems fair to me for Arizona to refer to this history, especially when some of the losses have resulted from a rigged game. Presumably at some point, the Ninth (or more accurately, certain judges on the Ninth) will get the message, and Arizona is certainly entitled to appeal to that presumption in its cert. petitions.
R.friedman, why should Arizona defend its criminal judgments on the merits. The Ninth Circuit is not supposed to conduct a de novo hearing into the merits of the claims raised before it, but rather is to determine whether the state courts acted reasonably. And let’s not forget that a very strong case can be made that with respect to habeas corpus, the states are simply not getting a fair shake from the Ninth Circuit. Sighing etc. or attacking the bases of questions are not bad responses to this problem. Like it or not, rfriedman, AEDPA is the law of the land, and judges are not permitted to ignore it. That’s what democracy is all about, and I find it interesting, to say the least, that you imply that results of the democratic process which comply with the Constitution (i.e., AEDPA, a clearly constitutional law passed by Congress) should be cast aside for the benefit of criminals. Forgive me for pointing out how out of touch and elitist that sounds.
Comment by federalist — September 26, 2006 @ 3:07 pm
Whatever happened to that Ninth Circuit case where two of the three members of the panel (including Reinhardt) ordered briefing on whether AEDPA is constitutional at all? Still waiting a decision?
Comment by Roger — September 26, 2006 @ 3:19 pm
Roger, see this blog entry:
http://www.crimeandconsequences.com/2006/08/aedpa_parole_and_the_constitut.html
Comment by federalist — September 26, 2006 @ 3:27 pm
Deference is not the end of the discussion in AEDPA-land. Deference does not mean abdication of review. The Supreme Court has said so itself, in Miller-el. A federal court can disagree with a state court’s resolution of a factual issue if the resolution is objectively unreasonable. Plus, a state court decision (as opposed to a factual finding) can be deemed unreasonable if the factual basis for the decision was incorrect. So yes, Arizona does have to defend a state court decision on the merits rather than just hiding behind the standard of review. I fully understand arguing that first, but it helps a lot if you actually have a basis for winning on the merits. Perhaps that arrogance is leading to some of the decisions they get?
So, Arizona does not get a complete pass on the factual findings that their courts make, even though it would like to. Now, it may disagree with the federal court’s resolution of those issues, and obviously, it knows what to do about it when it does.
Comment by indadvocate — September 26, 2006 @ 3:32 pm
fed — The question I was raising was one of appellate advocacy, not of law. When you are asked a question at oral argument, you answer it. You are free to spin your answer however you want, or to indicate that the question is not relevant or that the hypothetical does not correspond to the case at hand. You don’t sigh or roll your eyes or grimace. When the case is about jurisdiction or immunity, you argue it, you don’t complain about having to argue it. When the panel indicates that they find your arguments against tolling the statute of limitations unpersuasive, don’t you shift your ground? Not Arizona’s lawyers. I think their goal is not winning on appeal or in the Supreme Court, but pissing and moaning to Congress to get out of the Ninth Circuit.
Comment by r.friedman — September 26, 2006 @ 4:38 pm
Ordinarily, r.friedman, I would agree with you. Having clerked for a judge that really tried to get it right, it was annoying when litigants did not treat the judge as if he were not a neutral arbiter. However, many judges on the Ninth do not try to get it right. Does anyone think that the state in a habeas case gets a fair shake from Reinhardt, Sidney Thomas, Richard Paez or Marsha Berzon? And the one thing that litigants have an absolute right to demand is a fair shake from a judge. And when that’s not forthcoming, neither the judges nor anyone else can really complain about lawyers sighing, rolling their eyes or questioning the judge’s questions. And if Arizona can get out of the Ninth Circuit, more power to it.
Indadvocate, I believe that if you note that my post about “on the merits” was in response to rfriedman’s, you’ll get a better sense of what I’m driving at. R.friedman’s complaint is that the state argues “standard of review” rather than the merits. My point is that the state certainly has the right to argue procedural bar, reasonableness of the decision or anything else in AEDPA-land. R.friedman would like more of a de novo hearing–or at least that’s the implication of his post.
And, if the certain judges on the Ninth are punishing Arizona for arrogance via habeas judgments, that, we can all agree, is unacceptable.
Comment by federalist — September 26, 2006 @ 5:39 pm
While it is minor, it was jarring to see, right at the beginning of the Arizona brief’s statement of facts: “In November of 1989, Landigan escaped . . . [while serving time for] a 1982 murder and a 1996 prison stabbing.”
One presumes that 1986 is the relevant date, and it is largely irrelevant to the merits. Still, when you are in the U.S. Supreme Court, one would think that you would proofread.
Comment by ohwilleke — September 26, 2006 @ 6:22 pm
And one would presume that ohwilleke would cut overworked and underpaid deputy AGs some slack, especially since their workload appears to have been artificially increased by judges who don’t give the state a fair shake.
Comment by federalist — September 27, 2006 @ 11:45 am
Federalist…what about the overworked and underpaid PDs whose clients spend far more time in prison than they should because of judges who don’t give their clients a fair shake? I do hope that you will admit that there are judges out there who refuse to give a criminal defendant a fair shake.
Comment by indadvocate — September 27, 2006 @ 3:27 pm
I am sure that there are judges who shade the law against criminals in this nation. It’s unacceptable. I don’t see that as much of an admission.
Do you think that Reinhardt gives the state a fair shake in a habeas appeal?
Comment by federalist — September 27, 2006 @ 4:25 pm