Argument analysis: A confusing search for “clearly established” law
on Jan 13, 2016 at 1:54 pm
Thanks to the highly deferential review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is the rare case today in which a state prisoner is able to convince the Supreme Court that his conviction was based upon such an egregious constitutional error by the state courts that he is entitled to post-conviction habeas relief. And given the tenor of yesterday’s oral argument, it is difficult to believe that Duncan v. Owens is going to be one of those cases. Instead, perhaps the more interesting question is whether an opinion siding with the state of Illinois rests on the ground that the trial court’s error was not “clearly established” because it is not clear what the error actually was, or, more narrowly, that any error was harmless beyond a reasonable doubt, as the state appellate court concluded.
As I noted in my argument preview, the problem in this case stems from the end of respondent Lawrence Owens’s bench trial for murder, when the trial judge apparently reached his verdict based in part upon a fact (Owens’s motive) that was not only unproven at trial, but for which there was no evidence whatsoever. As Carolyn Shapiro, Solicitor General of Illinois, argued for the state, if motive had been an element of the offense, then that might well have given rise to a violation of clearly established due-process principles. But, as she explained in response to detailed questioning from Justices Sonia Sotomayor and Elena Kagan, “I think that [it] is ambiguous . . . whether the judge is saying that he finds that the elements have not been proven beyond a reasonable doubt or if the judge is saying that he needs to find some way of telling a story about this case that makes sense to him. The first would be a due process violation. The second, it’s not clearly established.”
Although the colloquy over what the trial judge said went on for some time, it became clear that this was the nub of the “clearly established” issue – that there is no question that the trial judge violated “clearly established” law if his remarks are interpreted one way, but that there is a question about whether he did so if his remarks are interpreted another way, including in a manner suggested by Justice Samuel Alito a bit later in the argument. One way out of that quagmire, as Shapiro noted in response to questioning from Justice Stephen Breyer, would be to defer not to the trial judge’s ruling, but to the state appellate court’s conclusion that any error was harmless. Indeed, Shapiro concluded, the state appellate court’s reliance upon harmlessness only underscores its reading of the trial judge’s remarks as not violating clearly established federal law (that is, as not resting the verdict on unproven facts).
Arguing on Owens’s behalf, Barry Levenstam immediately ran into skeptical questioning from Justices Antonin Scalia and Ruth Bader Ginsburg, both of whom pushed back on his effort to read the trial judge’s statement as suggesting that he was basing his verdict on facts not in evidence. Chief Justice John Roberts crystallized matters when he asked Levenstam to point him to a Supreme Court decision specifically holding that “it’s due process error when a judge speculates about an issue that is not pertinent to guilt and there’s sufficient evidence of guilt on all the elements.” Levenstam tried to parry the question by noting that the “fact that it’s not . . . an element doesn’t mean that it’s not what he rested his guilty verdict on.” But as the rest of Tuesday’s fifty-eight-minute argument underscored, the problem for Levenstam – and, ultimately, Owens – is the continuing ambiguity as to just what the trial judge’s guilty verdict did rest on. If the matter were reaching the Supreme Court on direct appeal, and reviewed de novo, it would be easy to see why a majority of the Court might be inclined to resolve any such ambiguity in favor of the defendant. But thanks to the deference mandated by AEDPA (and the Court’s subsequent interpretations thereof), confusion over what the trial judge actually meant almost certainly inures to the benefit of the state. And if Levenstam had hoped to use Tuesday’s argument to clear up that confusion and explain to the Justices why there was only one way to understand the trial court’s ruling – as a violation of clearly established federal law – it did not seem, by the end of his presentation, that he had at least five takers.
