Thursday, May 30, 2013

Bench slap: SCOTUS says Texas capital habeas process could 'create significant unfairness'

Grits doesn't usually follow death-penalty topics but I can never resist a good bench slapping, particularly when SCOTUS decides to show the back of its hand to our friends on the Texas Court of Criminal Appeals, who rival the federal 9th Circuit as a favorite US Supreme Court whipping boy. (N.b., SCOTUS was technically rebuffing the Fifth Circuit for approving Texas' methods; see the correction below.)

This week, SCOTUSBlog has the story of another US Supreme Court bench slapping of the Texas Court of Criminal Appeals Fifth Circuit Court of Appeals in Trevino vs. Thaler, which ruled that Texas' bifurcated death penalty review procedure - where direct appeals and habeas corpus process occur simultaneously - “makes it ‘virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim’ on direct review.” The Texas system, said the majority, "would create significant unfairness." SCOTUSBlog said the case is "Texas- (and capital-) specific." For judges, that's the equivalent of a student being singled out in class for low marks and being ordered to "shape up!" Again.

From the New York Times report you would think the dissenters objected on grammatical or perhaps laundry-related grounds. "In dissent, Chief Justice Roberts said the Martinez decision had announced a 'crisp limit.' 'But today,' he added, 'the court takes all the starch out of its rule with an assortment of adjectives, adverbs and modifying clauses.' Chief Justice Roberts had voted with the majority in Martinez, as had Justice Alito, who joined the chief justice’s dissent Tuesday."

The SCOTUS  majority essentially accused the Texas Court of Criminal Appeals Fifth Circuit of sophistry, opining that “a distinction between (1) a State that denies permission to raise [a] claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic operation, denies a meaningful opportunity to do so is a distinction without a difference.” Ouch!

CORRECTION: In the comments, Rob Owen, who has forgotten more about death penalty litigation than I will ever know, pointed out that the Supreme Court was technically rebuffing the Fifth Circuit for approving Texas' system, so it was them receiving the bench slap, not the CCA. Grits regrets the error. The decision, however, does indict the Texas system specifically and singularly and will require the CCA to alter its methods for handling ineffective assistance claims in some fashion..


Rob Owen said...

Scott, Trevino is actually a slapdown of the Fifth Circuit, rather than the CCA. To be sure, the CCA is the court that is indifferent to the (often unbelievably poor) quality of legal representation for condemned prisoners in state post-conviction cases -- but it's the Fifth Circuit that concluded that such terrible lawyering in state court can't provide legal "cause" for a federal court to consider a claim that should have been, but wasn't, presented in state habeas proceedings (by that same incompetent state habeas lawyer). Thus, it's the Fifth Circuit to which the Supreme Court in Trevino is issuing a loving correction.

Anonymous said...

As Rob stated, the Supreme Court was correcting the Fifth Circuit and not the Court of Criminal Appeals. The Fifth Circuit had held that Martinez v. Ryan did not apply to Texas because an ineffective assistance claim can theoretically be raised on direct appeal following a motion for new trial. The Supreme Court recognized the reality that the narrow time-window for filing a motion was not practical for litigating ineffective assistance of counsel claims, as well as the fact that Texas state appellate courts have expressed a preference that ineffective assistance claims be raised in habeas corpus writ rather than on direct appeal. The Trevino decision was not an express criticism of the Texas capital habeas process.

Anonymous said...

Your correction is slightly less wrong than the original post. It is hard to imagine how this opinion has any impact on how the CCA handles capital litigation (except that litigants will no doubt argue they have a right to effective assistance of state habeas counsel). It will, however, affect how the federal courts deal with habeas review.

Anonymous said...

Our source is usually the New York Times. I've never liked the the way they spin their stories.