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Today in the Community: October 6, 2011

Our fourth topic of the week is the Supreme Court’s patent jurisprudence, including a discussion of recent cases, pending cases, whether – as an initial matter – the Court may be viewed as “pro” or “anti” patent, and whether the Court is institutionally well-suited to deciding patent cases at all.  This topic will remain open on the Community page for the next week.

If you have yet to join the Community, it’s not too late!  Check out Tom’s guide for instructions on how to register and participate today.

Tomorrow’s topic will focus on originalism as a mode of constitutional interpretation.  We will report on the topics for next week as soon as we have them in case you’d like to do some brainstorming in advance.

Each of the topics from the prior three days (on the Affordable Care Act, legal blogging, and the pending case of Maples v. Thomas) continues to receive excellent feedback from readers.  Five of the many first-rate comments from yesterday are excerpted below for your viewing pleasure.

Sam Heldman

Not meaning to under-emphasize the importance of the case to Mr. Maples himself or to other capital defendants, or to Supreme Court jurisprudence, but I want to mention another angle: I wish that every lawyer and law student had to read about this case at least once a year forever.

That is, however the case ultimately comes out in the Supreme Court, it really gets at the nature of lawyering as distinct from thinking about law – at how very crucial it is to (1) always remember that you have a client (it seems crazy, but there is too often a tendency among a certain kind of smart lawyer to forget that there are actual people involved, and that you are their eyes and ears as well as their clever advocate), (2) keep track of things and don’t screw up the details (like filing notices of appearance or motions to withdraw), (3) not take on a project that you’re not actually willing to embrace and care about; and (4) be especially careful to remember (1) (2) and (3) in those cases that stress you out (this being perhaps the hardest of all, once the lawyer finds himself or herself starting to feel the water rising).

There are also, probably, lessons about how to run a big firm, and how not to run a big firm – how to train lawyers, and keep track of obligations.

This case is an awful train wreck, in terms of all of those things. But people get out of law school not knowing anything about those train wrecks, and how to avoid them. Then many firms do a bad job, or no job at all, teaching about this. Reading about this case ought to wake up every one of us.

Joseph Hoffmann

Regardless of how the Supreme Court decides the case, the Maples saga illustrates two key problems with our criminal justice system.

First, we need to decouple our thinking about capital habeas and non-capital habeas. Frankly speaking, the Maples case would never have caught the attention of the Supreme Court – nor that of bloggers like us – if it weren’t a capital case. As both Judge Barkett (dissenting from the 11th Circuit’s decision in Maples) and Justice Alito (in his questions from the bench during the Maples oral argument) recognize, the simple fact that Cory Maples faces execution is what makes his case impossible to ignore. That’s for two distinct reasons: the capital sentencing decision is largely discretionary (hence Judge Barkett’s comment that “if even one [more] juror … had voted for life,” the sentence would have been different), and the consequences of making a mistake are irrevocable and unthinkable.

Why shouldn’t the rules of federal habeas litigation acknowledge the obvious – that “death is different”? In capital cases, why shouldn’t we overlook most procedural defaults (except, perhaps, a “deliberate bypass” by the defendant) and get down to the merits? When a defendant’s very life is on the line, why do we continue to spend so much time and energy on the arcane technicalities of cause and prejudice, and whether a state procedural rule is applied arbitrarily or regularly? As much as law professors like me might find such arguments intellectually interesting, is that really how we want to decide whether a particular death-row inmate lives or dies?

The federal habeas courts seem to understand intuitively that death is different. Recent statistics reveal that capital habeas and non-capital habeas already differ sharply on the ground. In non-capital habeas cases, federal district courts provide relief less than 0.4% of the time. In capital cases, the habeas relief rate is more than 30 times higher. And the Supreme Court’s behavior (see, e.g., House v. Bell, or the extraordinary order for an evidentiary hearing in the Troy Anthony Davis case) suggests that the Court is increasingly concerned about the possibility that an error in a capital case might lead to the execution of an innocent person.

It’s time to accept reality, and restructure the rules of capital habeas to ensure prompt disposition of the merits of every capital case. This can easily be done while still preserving the current procedural barriers to habeas relief (or even, as Professor Nancy King and I have argued recently, see, enacting new habeas limitations) for the vastly larger universe of non-capital habeas cases.

Second, and more importantly, we need to figure out a better way to address persistent deficiencies in defense representation in the states. The current post-hoc approach, which relies on post-conviction litigation to correct and deter the unprofessional mistakes of trial lawyers, most certainly will not solve the problem. Even if Maples obtains relief in the end on his ineffective-assistance claim, that will do nothing to save future defendants, in Alabama and elsewhere, from suffering the same fate.

. . . 

Kent Scheidegger

The “cause and prejudice” rule is a corollary to the exhaustion rule. The latter is one of the rules created to address the basic dilemma of federal habeas for state prisoners — how to keep the remedy available in the very few cases of a true miscarriage of justice for people grievously wronged by the state court system, while at the same time preventing it from becoming a routine second appeal or substitute for an appeal in the vast bulk of cases.

The requirement to exhaust state remedies before turning to federal habeas was created by the Supreme Court in 1886 and codified by Congress in 1948. Initially, the Supreme Court recognized that if the defendant defaulted his state remedy, then the exhaustion requirement was not met and federal habeas was simply unavailable. (Daniels v. Allen, decided with Brown v. Allen, 1953.) Daniels was overruled without saying so, and with thin justification, in Fay v. Noia, 1963, one of the most dishonest opinions in the history of the Supreme Court.

Development of a substitute for Daniels’ simple but severe rule was uneven. The rule that eventually emerged was that a defaulted claim would be available on federal habeas despite the default if the petitioner showed cause for the default and resulting prejudice. The prejudice prong often means little more than a having a meritorious claim. For ineffective assistance and Brady claims, the most common, it merges with an element of the claim.

Yet in Murray v. Carrier, 1986, the Court recognized that there might be compelling cases of innocence by petitioners who could not meet the cause and prejudice test. The Court created an additional “safety valve” of actually innocence as well. This rule is part of a general trend toward recognition that Judge Friendly was right; innocence is relevant. It deserves a higher place than it has in consideration of whether to make exceptions to procedural rules.

What does “innocent” mean in capital cases. First and most obviously, it means the wrong man was convicted. This is, obviously, the most compelling case to make an exception to procedural rules.

Second, the Court decided in Sawyer v. Whitley, it means sentencing a person to death who is not legally eligible for that punishment, e.g., because he is guilty of a lower degree of homicide.

What about the discretionary sentencing decision? Can mitigating circumstances make a person “innocent of the death penalty”? No, the Court said in Sawyer. Such an exception would effectively eliminate the rule. The defendant can always come up with more mitigation and claim the trial lawyer should have introduced it at trial.

Maples definitely does not qualify for the actual innocence exception. He gunned down two men who thought he was a friend just to steal the car and money of one of them. His “too drunk to form intent” claim is ludicrous.

Ineffective assistance of counsel is “cause” in proceedings where the defendant has a constitutional right to counsel and not otherwise, the Court decided in Coleman v. Thompson. Maples is trying to squeeze through a loophole in Coleman language regarding “abandonment” by the lawyers, but he was in fact represented by lawyers at a prestigious law firm throughout his proceedings. They simply screwed up.

Should we expand the “cause” exception to cover this circumstance? In my view, we should keep the “cause” exception limited to its present scope and look to the “innocence” exception as the mechanism for correction of injustices. This case is definitely not a miscarriage of justice, and there is no need for expansion here.

Michael Williams

I’m afraid I can’t agree your [Kent Scheidegger’s] suggestion that we shift focus from “cause and prejudice” standard to actual innocence.

For one, the Court has been exceptionally squishy in its attempts to define an actual innocence claim. To be sure, we have a set standard for so-called “gateway” actual innocence claims; Schlup v. Delo tells us that “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” But what on earth does that actually mean? As Justice O’Connor noted in her Sclup concurrence, that standard jumbles up two different standards to create one confusing mess. It’s hard to say with any specificity how the standard actually applies, so the test has become something of an “I know it when I see it” standard. And does this standard require newly discovered evidence or merely newly presented evidence?

For another thing, actual innocence claims–even of the so-called gateway variety–can place an exceptional burden on our system. When a prisoner lodges this sort of claim (assuming he presents any kind of colorable argument), the court is forced to go back through an entire case, reweighing all the evidence, and then consider both (a) new evidence and (b) evidence that was not admissible at trial but nevertheless presently available and relevant. In a typical death penalty case, that’s a mammoth task, especially given that the a death penalty habeas court is often wrestling with many other complex issues at the same time. As for the litigants themselves, the prosecution is forced to re-argue the merits of its case while a petitioner is forced to re-mount a full defense from jail. Not exactly light work.

Placing more emphasis on innocence would also be inconsistent with the principles underlying post-conviction review. Evidence typically becomes less reliable above over time (not more); perhaps for that reason, post-conviction courts have traditionally focused on constitutional error rather than factual innocence. And let’s not forget the significant sovereignty concerns of a federal court engaging in a reevaluation of a state court’s factual determination of guilt.

In sum, while “cause and prejudice” might have its problems, that shouldn’t lead us to embrace a doctrine that would probably bring even more problems of its own.

Griffin Barnett

As a law student who works on a student-run intellectual property law publication/blog (, I have found the blogging process to be a fantastic educational tool. It encourages student bloggers to explore a topic, area of law, or something in current legal news to which they might otherwise not have been exposed. I have personally found that it encourages me to stay generally informed on things going on in the legal community.

I think potential clients expect practitioners to be “experts” in their fields regardless of whether they blog or not. As a law student, however, you can develop your expertise in specific areas in an academic environment and demonstrate (to fellow students, professors, potential employers, etc.) that you not only have an interest in those areas, but that you have taken the initiative to study them on your own time.

That you can establish an international readership and (hopefully) add something to the discourse community on topics that stimulate you is also just cool.

As a side note, reading blogs like SCOTUSblog helps me predict how the justices will vote on I am one of those aforementioned law nerds.

Recommended Citation: Aaron Tang, Today in the Community: October 6, 2011, SCOTUSblog (Oct. 6, 2011, 8:29 AM),