Opinion analysis: Rejecting a standard that “comes from . . . . well, from nowhere”

On Monday, in Martel v. Clair, the Supreme Court addressed the question of the appropriate standard to be applied by federal courts when someone facing a death sentence requests that his appointed counsel be replaced.  In a unanimous opinion by Justice Kagan, it held that the correct standard is the “interests of justice” standard, rejecting California’s argument (supported by twenty-five states as amici) that a much tougher standard should be applied.  The Court observed that Congress had not directly addressed this question, and therefore it was, in a sense, “writing on a blank slate.”  But faced with the need to craft a standard, it explained that it preferred to copy the familiar and workable “interests of justice” standard rather than “concoct something novel,” such as the one suggested by California.  Demonstrating again that she is fast becoming one of the most enjoyable Justices to read, Justice Kagan noted that California’s proposed standard “comes from . . . . well, from nowhere,” and that “[i]nventiveness is often an admirable quality, but here we think the State overdoes it.”

Taking a “trip back in time,” the Court also explained how this statutory gap came to be.  Prior to 1988, Congress dealt with substitution of appointed counsel in capital and non-capital cases the same way, providing for the “interests of justice” standard to govern both. “So in those days,” the Court explained, “a court would have used that standard to evaluate a request like Clair’s.”  However, in 1988, Congress granted “federal capital defendants and capital habeas petitioners enhanced rights of representation,” providing higher rates of compensation, more money for investigation, and requiring more experienced counsel.  In spinning off capital cases and placing them into their own statutory provision, codified at 18 U.S.C. § 3599, Congress provided that appointed counsel in such cases may be “replaced by similarly qualified counsel” while saying “not a word about the standard a court should apply when addressing a request for a new lawyer.” In those circumstances, with everything in Section 3599 “pointing in one direction” – improvement of the quality of lawyering in capital litigation – the Court refused to conclude that “Congress silently prescribed a substitution standard that would head the opposite way.”  Instead, it interpreted the resulting statutory scheme to carry forward the “interests of justice” standard for both capital and non-capital cases.

California had argued that the “interests of justice” standard would make it far too easy for a habeas petitioner on death row to delay the case, and therefore his execution, by seeking to replace his counsel at the last minute.  Indeed, it forecast the rise of “Clair motions” designed to do precisely that.

The Court had two responses.  First, it observed that the same statute governs both capital prosecutions in federal court and habeas petitions, and that those who had not yet even been convicted, much less sentenced to death, lacked incentives to seek delay for its own sake.  Secondly, it observed that the “interests of justice” standard was sufficiently capacious to easily empower district courts to take inappropriate delay into account.  “Protecting against abusive delay is an interest of justice,” and courts addressing substitution motions “routinely consider issues of timeliness.”  In effect saying, “watch how it’s done,” the Court noted, “we will do so, just paragraphs from here, in this very case.”

On the major legal point in the case, then, the Court unanimously concluded that the habeas petitioner and the Court of Appeals for the Ninth Circuit were right, and California and its amici were wrong.

Unfortunately for Mr. Clair, however, the Court also unanimously determined that, under this standard, the district court had not abused its discretion in denying his request for replacement counsel, and that the court of appeals was wrong to have concluded otherwise.

Clair was convicted in 1987 of the 1984 murder of Linda Rogers.  He filed a federal habeas petition in 1994, and in 2004, the district court conducted an evidentiary hearing, receiving post-hearing briefs by February 2005.  In March of 2005, after the case was fully submitted and the district court indicated that it wanted no more submissions, Clair wrote to the district judge requesting new counsel.  The district judge asked counsel to respond, and was informed that Clair was now satisfied with counsel.  In June 2005, shortly before rendering a decision on the habeas petition, the district judge again received a letter from Clair seeking new counsel.  Two weeks later, and without making further inquiry, the district judge denied the request for new counsel, denied the habeas petition, and retired.

The court of appeals appointed new counsel, and decided that the district judge had abused his discretion in denying Clair’s request for replacement counsel by failing to make some inquiry into his allegations.  But rather than remand the case for the district court to make that inquiry, the court of appeals decided to treat the lawyer whom the court of appeals had appointed “as if he were the counsel who might have been appointed had the district court properly exercised its discretion in response to Clair’s request for new counsel.”  It did so because it faced what it described as a “conundrum” caused by the fact that Clair already had new counsel and the district judge had retired.  As a result, it directed the new counsel to “consult with Clair and determine what actions and submissions to the district court, if any, would be appropriate before the district court rules anew on Clair’s habeas petition, and then proceed accordingly.”  In addition, it directed the district court to “consider any such submissions, including any requests from counsel to amend the petition to add claims based on or related to the alleged new physical evidence, as if they had been made prior to the ruling on the writ.”

In the Supreme Court, Clair emphasized that the second letter contained a significant new complaint – that counsel was failing to investigate newly discovered evidence of innocence – and contended that the district judge was obliged to make some inquiry about this allegation before denying the request for new counsel.  The Court acknowledged that the district judge’s failure to inquire at all into this allegation made the case “harder than necessary,” and that ordinarily such a “new charge would have required the court to make further inquiry before ruling on [the] motion for a new attorney.”  But it nonetheless concluded that in the particular circumstances of this case, the timing of the motion revealed that the district judge did not abuse his discretion.  All submissions had already been made in the case; the evidentiary hearing and post-hearing briefing were complete.  Moreover, by the time the second letter came in, the district judge was already “putting the finishing touches” on the opinion, an inference that the Supreme Court drew from the length of that opinion and the two weeks that elapsed between receipt of the letter and issuance of the opinion. “The case was all over but the deciding; counsel, whether old or new, could do nothing more in the trial court proceedings.”

Finally, if anything were to come of the newly discovered evidence, it would relate to new claims yet to be made – not the claims that had been the subject of ten years of federal habeas litigation – and therefore would require a motion seeking to amend the existing habeas petition and an evidentiary hearing or, “more likely,” to stay the execution so those new claims could be presented to the state courts in accordance with the exhaustion requirement. Since the district judge had already precluded further submissions, he could have properly rejected such a motion, and “was not required to appoint a new lawyer just so Clair could file a futile motion.”

The Court made no mention (except parenthetically) of the district judge’s retirement.  Clair’s counsel in the Supreme Court, former Solicitor General Seth Waxman, had suggested that the judge’s retirement might explain why he failed to make the necessary inquiry, but this so incensed Chief Justice Roberts that Waxman quickly retreated and urged instead that it was relevant to the remedy: Since the district judge had retired, it made no sense to remand to the district court for a different judge to conduct the necessary inquiry.  Here, the Court dropped a footnote, stating that even if the district court had abused its discretion in failing to inquire, the proper remedy would have been a remand for the district court to “decide whether substitution was appropriate at the time of Clair’s letter.”

For other defendants or habeas petitioners in capital cases, the decision in Clair was largely good news.  Substitution of counsel in capital cases will be governed by the “interests of justice” standard rather than the tougher standard sought by California.  In addition, district judges are now instructed by the Supreme Court that they should probe into complaints about appointed lawyers.

But for Mr. Clair himself, the decision was quite bad news.  Rather than having an opportunity to try to litigate his new claims – including his new claims involving actual innocence – in his first federal habeas petition (a petition filed before the effective date of the AEDPA and its deferential standard of review), he may well find himself constrained by the high hurdles facing a second federal habeas petition.  And even if he succeeds in convincing the court of appeals to permit a second petition to be filed under 28 U.S.C. § 2244(b), that petition would be governed by the AEDPA.