Argument Recap: Schriro v. Landrigan on 1/9

The following argument recap was written by Elizabeth Barchas of Harvard Law School. Her preview of this case can be found here.

Justices Souter and Scalia seemed to be arguing more with each other than with the attorneys on Tuesday, January 9, when the Supreme Court heard oral argument in Schriro v. Landrigan (No. 05-1575). Early in the argument, Justices Souter and Scalia debated whether Landrigan was asserting a claim that his waiver of mitigating evidence was not knowing (Justice Souter’s understanding) or whether the Ninth Circuit had already settled the issue by declaring the waiver invalid because it was not intelligently made (Justice Scalia’s argument). Kent E. Cattani, on behalf of the state of Arizona, could barely get a word in edgewise — although he at times agreed with each Justice during the back-and-forth.

Justice Stevens led off the argument with a general question regarding whether the Constitution requires that a waiver of mitigating evidence at a sentencing hearing be knowing and involuntary. Mr. Cattani responded that the burden of making a claim that the waiver was involuntary would fall on Landrigan, leading Justice Scalia to follow up with a friendly comment clarifying that it would be difficult for Landrigan to carry this burden since there was “nobody twisting his arm” when he said he did not want mitigating evidence to be presented.

Justice Kennedy inquired into the standard for when a district court may hold an evidentiary hearing, and Mr. Cattani responded that an evidentiary hearing is appropriate when a defendant shows that he was denied an opportunity to develop relevant facts necessary to resolve a colorable claim. He suggested that Landrigan had not attempted to develop facts relevant to his ineffective assistance claim, and later returned to this point by arguing that it was unnecessary to conduct an evidentiary hearing because although the state court had accepted as true during post-conviction hearings Landrigan’s proffered testimony that he would not have waived certain mitigating evidence, it had dismissed his ineffective assistance claim anyway.

In response to a question from Justice Stevens, Mr. Cattani argued that Landrigan’s comments at sentencing were sufficient to establish that the waiver was knowing and voluntary, but argued that in any event Landrigan had failed to raise the invalidity of the waiver in post-conviction proceedings. Justice Souter pressed Mr. Cattani on this point, noting that Landrigan’s ineffective assistance claim implicitly suggested the waiver was not knowing, and Mr. Cattani conceded that Landrigan had raised the invalidity of the waiver as to a particular piece of mitigation evidence.

The Chief Justice rescued Mr. Cattani from this line of questioning, asking the friendly question whether the Court would have to reverse the Ninth Circuit if Landrigan wanted a hearing on whether his waiver was intelligent.

Justice Breyer described Landrigan’s “horrendous upbringing” and asked why Landrigan should not have a chance to develop that evidence in a hearing. The Chief Justice said his understanding was instead that Landrigan wanted to develop a different argument at the hearing regarding a biological component of violence, which would be ambiguous evidence regarding mitigation in any case. Mr. Cattani agreed, and suggested that Landrigan had only offered the genetic predisposition evidence in his post-conviction proceedings.

After Justice Scalia pointed out that the district court had all of this evidence before it anyway, Justice Souter argued that there was “a universe of difference” between a proffer of evidence and the actual presentation of witnesses. In response, Mr. Cattani pointed out that the sentencing judge had also observed Landrigan in person.

Returning to the waiver itself, Justice Stevens proposed that any waiver by Landrigan might be invalid as a matter of law because he was not fully advised of the scope of the right he was waiving. When Mr. Cattani said he was unaware of any authority requiring a specific colloquy to prove knowledge, Justice Scalia agreed, saying, “It’s new to me also. I never heard of it.”

Justice Scalia also voiced the concern that any defendant who had waived mitigating evidence might later claim that newly discovered evidence would not have been waived, thus rendering every waiver susceptible to a later claim that it was uninformed.

In response to a question from Justice Ginsburg, who spoke up for the first time at the end of the state’s argument, Mr. Cattani argued that Landrigan’s comments at sentencing were sufficient to constitute a valid waiver.

Don Verrilli of Jenner & Block, who argued for Landrigan, began by clarifying Landrigan’s waiver-related claims. He delineated the procedural history of Landrigan’s case to prove that Landrigan had contested the validity of the waiver in post-conviction proceedings.

He was interrupted briefly by Justice Scalia, who could not find a document Mr. Verrilli had referenced in the joint appendix, and who chided Mr. Verrilli when it became clear that he had cited the wrong page number. After a delay during which everyone literally got on the same page, Justice Scalia pressed Mr. Verrilli on whether Landrigan had an obligation to raise the waiver argument in his original motion rather than in a motion for rehearing. Mr. Verrilli pointed out that Landrigan had raised the waiver claim on several occasions and the state had never objected until finally bringing up the issue for the first time in its reply brief on the merits.

When the Chief Justice asked whether Landrigan wanted a hearing just on his biological predisposition to violence or on the waiver question, Mr. Verrilli said Landrigan wanted a hearing on both because the issue of his counsel’s performance and the issue of waiver were connected. Mr. Verrilli stressed that “we’re conceding something here, that waiver ought to be left open and not definitively resolved” when Justice Scalia pressed him that Landrigan had not asserted an invalid waiver claim in the motion for a hearing.

Mr. Verrilli next argued that even the sentencing judge had not treated Landrigan’s comments as a waiver because the judge still asked to hear from the mitigation witnesses and requested other mitigating evidence.

In response to a comment from the Chief Justice that Landrigan was merely going to make a genetic claim, Mr. Verrilli emphasized that Landrigan also wanted to present evidence that his biological mother used drugs and alcohol while pregnant with him, and have an expert testify about the effect of fetal alcohol syndrome. The Chief Justice expressed incredulity that expert testimony would be useful if Landrigan wouldn’t allow his biological mother to testify, but Mr. Verrilli argued that the biological mother could have given information to the expert, who would then have helped the sentencing judge weigh all the evidence.

Although Mr. Verrilli agreed that it was always possible that some additional evidence could arise that would make a waiver unknowing, he also emphasized that the rule he was asking for was narrow.

Justice Breyer recited the various sources of evidence that Landrigan’s counsel had failed to explore before asking what the standard was for granting a hearing. Mr. Verrilli responded that it was first necessary to show that 28 U.S.C. § 2254(e)(2) did not preclude Landrigan from receiving a hearing; here, it does not because Landrigan had shown diligence in trying to develop the factual basis for his claim. If Landrigan could also show that the alleged facts, if proven, would entitle him to relief, then the grant of a hearing would be mandatory.

Justice Kennedy pointed out that the difficult part of the case would be showing the likelihood of a different result, but Mr. Verrilli said that it was premature to raise this issue, which should be decided after the evidentiary hearing. When pressed by the Chief Justice that evidence that Landrigan’s biological mother had used drugs and alcohol had been presented in the state court proceedings, Mr. Verrilli argued that expert testimony explaining the effects of fetal alcohol syndrome was missing from those proceedings.

Mr. Verrilli concluded by reminding the Court of its declaration that even in the context of habeas there is a difference between deference and abdication. A decision that Landrigan was conclusively barred from having an evidentiary hearing, he argued, would be a form of abdication.