Death-penalty symposium: Supreme Court marks time for a term on capital punishment

Kent Scheidegger is the legal director of the Criminal Justice Legal Foundation. He filed amicus briefs in support of Texas in Davila v. Davis and Moore v. Texas.

The Supreme Court has often been the epicenter of the continuing debate over capital punishment, but it was not in October Term 2016. The larger battle was elsewhere, for the time being, and the Supreme Court was largely marking time and correcting errors in individual cases while waiting for its ninth seat to be filled.

The epicenter this year was at the ballot box. There were four propositions on state ballots for direct votes of the people, and the pro-death-penalty side ran the table. In Nebraska, the people delivered a stinging rebuke to their legislature, reversing the repeal of the death penalty by a 21-percent margin, with majorities in 92 of 93 counties. Even in deep-blue California, repeal failed and a reform measure to reduce delay passed. These results did not directly affect cases before the Supreme Court this term, but they surely will in the future when the high court is asked to declare particular applications of the death penalty or even the death penalty itself “cruel and unusual.”

Of greater importance for October Term 2016 was the surprising election of Donald Trump, who had promised to be a “law and order President.” That meant that Justice Antonin Scalia’s vacant seat would be filled with a justice sympathetic to strong enforcement of the criminal law, and indeed it was, as we saw at the end of the term.

The case that most clearly reflects the Supreme Court’s desire to correct an error in an individual case is Buck v. Davis. On the question of future dangerousness, the defendant’s own lawyer called an expert who testified that there is a correlation between race and probability of committing crimes, a fact that is true but dangerously misleading when given to a lay jury without explanation. Yet the ineffective-assistance claim was not raised at the proper time, and the normal habeas corpus proceedings ended with the Supreme Court’s denial of certiorari in 2010.

The difficult part of the case is not the ineffective-assistance claim on the merits but rather the mechanism by which the case was reopened. As “extraordinary circumstances” for the purpose of reopening a closed case via Federal Rule of Civil Procedure 60(b)(6), the court notes the particularly repugnant possibility that Duane Buck “may have been sentenced to death in part because of his race” and the fact that the state confessed error and waived default in the other cases involving the same expert but not Buck’s. The danger here is that the precedent of this case may enable other courts to evade the limit on successive petitions by declaring far less compelling circumstances to be “extraordinary.” Hard cases make bad law, and the Supreme Court may find itself correcting a lot of erroneous decisions citing Buck in the years to come.

A second case from Texas, Moore v. Texas, involved the implementation of the Supreme Court’s decision in 2002 that persons with intellectual disability are categorically exempt from capital punishment. The problem with basing a constitutional principle on a psychiatric diagnosis is that the criteria are often subjective, often matters of dispute, and frequently changed. The changes are often not based on scientific advances but rather on changes in social norms, and in some cases they may even be politically motivated.

Initially, it appeared that the Supreme Court might have been poised to declare that states must change their definitions of a rule of law every time private organizations with their own agendas put out new versions of their manuals. The court’s holding does not go quite that far, though it says “current standards” “supply one constraint on States’ leeway in this area,” a fuzzy statement that will surely be the subject of much litigation until the Supreme Court clarifies it. Bobby Moore’s case was reversed because the Texas standard was not just the prior edition of a manual, but it was also augmented by nonclinical factors that the Texas court simply made up. (The claim that the Texas court based them on Lennie from “Of Mice and Men” is an absurd falsehood, however.) Whether the court has really delegated the power to amend the Eighth Amendment to the American Psychiatric Association remains an open question.

McWilliams v. Dunn was the only non-Texas capital case to receive full briefing and argument this term. The Supreme Court granted certiorari limited to the question of whether a mental-health expert appointed under Ake v. Oklahoma must be an independent defense expert rather than one who reports results to both sides. The court ducked that question and decided on case-specific facts that the expert assistance provided was inadequate in any event. Four justices dissented from this disposition of the case, including new Justice Neil Gorsuch.

The problem here is that McWilliams was a poor vehicle to address the question presented. The Supreme Court denied certiorari without dissent on the direct appeal, and on federal habeas corpus the threshold question is not whether the state court’s interpretation of Ake is the best one but only whether the law was clearly established to the contrary. The answer to that question, as the dissent says, is clearly no, and that should be the end of the habeas-corpus case on that issue. To decide otherwise, the Supreme Court would have to shred a large stack of jurisprudence on the habeas-corpus standard. I suspect that at least one justice was willing to find a way to grant James McWilliams relief but not to violate the established meaning of the statutory command, so the court chose to punt rather than issue a fractured opinion.

Only on the last day of the term, in Davila v. Davis, did the Supreme Court cleanly decide a widely applicable legal issue with a rule that provides clear guidance for lower courts. Once the court decided that ineffective assistance of counsel could be good cause to reassert a claim previously defaulted, it opened up the possibility of a never-ending spiral of litigation, with the lawyers in each round claiming the lawyers in the prior rounds were incompetent. In the landmark 1992 case of Coleman v. Thompson, the Supreme Court drew a line. Ineffective assistance at trial and on direct appeal could provide cause, but that would go no further. If a claim was omitted from collateral review, it could not be revived later by attacking the collateral-review lawyer.

In Martinez v. Ryan in 2012, followed by Trevino v. Thaler the following year, the court carved out what it said was a “narrow” exception to the Coleman rule. Claims of ineffective assistance of trial counsel omitted from the initial collateral review could be revived if the collateral-review attorney provided ineffective assistance. Many of us were skeptical whether this “narrow” exception would remain narrow or whether it was the edge of a wedge that would splinter the Coleman rule and lead to the endless spiral that Coleman had prevented until Martinez.

Erick Davila sought to expand the Martinez exception beyond ineffective-assistance-of-trial-counsel claims to embrace claims of ineffective appellate counsel as well. If this had succeeded we would doubtless have seen a steady progression of additional exceptions until there was nothing left of Coleman. The Supreme Court rejected Davila’s argument by a bare 5-4 majority, with Gorsuch in the majority. Justice Anthony Kennedy, the author of Martinez, was also in the majority.

Justice Clarence Thomas’s opinion for the court notes the special factors cited by the Martinez court and says that the “narrow” exception will not be broadened where those factors do not apply. Ineffective assistance of trial counsel is a particularly problematic error because an ineffective lawyer’s failure to object means that a trial error will not be considered by the trial court or by any court thereafter. On the other hand, if the trial lawyer effectively objects but the appellate lawyer omits the claim, the claim has at least been considered by the trial court.

Justice in a capital case requires that there be an end to litigation at some point. Those who seek it can breathe a little easier knowing that Coleman remains the law for most claims. The “narrow” exception of Martinez is not as narrow as advertised, but at least now a majority of the Supreme Court is not going to let it grow any wider.

With the Supreme Court back to full strength, perhaps some real progress can be made in the next term or two. There is a mess to clean up from Hurst v. Florida. State high courts disagree markedly on its meaning, and the Supreme Court has so far denied certiorari on both sides of the split. Buck and Moore this term raised as many questions as they answered, and clarity is sorely needed on those issues. Establishing clear rules of law for lower courts to follow, not correcting case-specific errors in individual cases, is the reason we have a Supreme Court. Let us hope the court can get back to its real job in capital cases in the coming term.