Jordan Steiker is the Judge Robert M. Parker Chair in Law and the Director of the Capital Punishment Center at the University of Texas School of Law.
The Supreme Court is still wrestling with the significance of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in terms of limiting the role of federal courts in reviewing constitutional claims adjudicated on their merits in state courts. Section 2254(d) permits relief only if a state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In yet another AEDPA case, White v. Woodall, the U.S. Court of Appeals for the Sixth Circuit reversed the death sentence of a state inmate who was denied a “no-adverse-inference” instruction when he chose not to testify at the punishment phase of his capital trial. The dissenting judge on the panel insisted that Supreme Court decisions protecting the right against self-incrimination had not clearly established a defendant’s right to such an instruction in the particular circumstances of this case. Moreover, she claimed that if denying such an instruction amounted to error, the error should have been deemed harmless. The state presented both of these arguments on certiorari, asking the Court to reinforce the limitations AEDPA imposes on federal habeas enforcement of constitutional norms.
Woodall will require the Court to parse its decisions protecting the right against self-incrimination to determine whether the defendant’s claim to a no-adverse-inference instruction was clearly established at the time it was denied in state court. Prior to AEDPA, the conventional wisdom in Supreme Court habeas practice was that too many petitions on behalf of criminal defendants were simply seeking “error correction,” where no broad or important question of constitutional law was implicated. Error correction, it was believed, was for the state and lower federal courts, not for the Supreme Court’s limited docket. Now, the tables are reversed, and whenever a federal court grants habeas relief (particularly in circuits perceived as open to habeas petitioners’ claims), states ask the Court to intervene to ensure that the new statutory limits on habeas review are observed, even where no broad or important question of habeas law or constitutional law is at issue. Mere “error correction” of state constitutional rulings, which used to be the staple of lower federal courts engaged in federal habeas review, is now cast as undue intrusion, which must itself be corrected by the Supreme Court. This perception is evident in the amicus brief filed by the state of Texas in Woodall, which speculates that the Supreme Court must have granted certiorari to address the “latest act of Sixth Circuit lawlessness.”
Robert Keith Woodall abducted, raped, and murdered Sarah Hansen, and he subsequently pled guilty to those crimes. At the punishment phase, Woodall elected not to testify and defense counsel sought – without objection from the prosecutor – an instruction to the jury that his decision not to testify “should not prejudice him in any way.” The state trial judge refused the instruction, indicating that “it’s not intellectually honest to tell this jury . . . that you go out and rape and murder and kidnap and admit to it and then offer no testimony, no explanation, no asking for forgiveness, no remorse, and the jury can’t consider that.” On direct appeal, the defendant relied on a trilogy of Supreme Court decisions enforcing the Fifth Amendment protection against self-incrimination. The Kentucky Supreme Court distinguished these cases, holding that since Woodall had not contested his guilt of the underlying offense or the presence of the aggravating circumstances, there was no risk of an improper adverse inference.
The Kentucky Supreme Court’s view that there must be evidence of the need for the instruction was arguably supplied by the trial court’s explanation for refusing it. The trial court asserted that the jury should be able to consider Woodall’s silence as bearing on his lack of remorse; if the jurors were likewise inclined, Woodall’s silence could have been used against him, because lack of remorse could be treated as aggravating his offense (Kentucky permits consideration of un-enumerated aggravating factors) and therefore an additional reason for a death sentence. In addition, Woodall’s silence could be used not merely to confirm the existence of the aggravating factors (kidnapping and sexual assault) but also the precise manner of his commission of the crime; to secure a death sentence, the state had to demonstrate not only the presence of the aggravating factors, but also that the death penalty was the appropriate sentence in light of all of the aggravating and mitigating evidence. Lastly, the jurors could have inferred from his silence that Woodall had little or nothing to add to his mitigating case.
In granting Woodall habeas relief, the Sixth Circuit rejected as unreasonable the state court’s conclusion that Woodall’s plea precluded any adverse inferences at sentencing. Because Woodall continued to contest the appropriateness of the death penalty (though not his eligibility), his silence could be construed to his detriment, and the principles underlying the Supreme Court’s decisions entitled him to the prophylactic protection of a no-adverse-inference instruction.
Ultimately, the Supreme Court will have to decide whether Woodall’s right to the no-adverse-inference instruction was “clearly established.” The Court’s relevant decisions have spoken in robust terms about the importance of such an instruction at a contested trial (Carter v. Kentucky) and the continuing significance of the right against self-incrimination at sentencing (Estelle v. Smith); the Court also has reversed a sentence when the judge actually made an adverse inference based on the silence of a defendant who had pled guilty to the underlying substantive offense when an important contested factual issue remained at sentencing (Mitchell v. United States). But the Court has never actually faced the circumstances of this case – the right of a capital defendant to an adverse-inference instruction when he has acknowledged guilt and the existence of aggravating factors. Moreover, in Mitchell, the Court left open whether a federal judge could legitimately infer a defendant’s lack of remorse and non-acceptance of responsibility for the purposes of administering the downward departure under federal sentencing guidelines.
Overall, the strength of Carter, Smith, and Mitchell make it likely that the Court would actually recognize a Fifth Amendment right to the Carter instruction in these circumstances. Those decisions place little on the side of permitting jurors to speculate about the reasons for a defendant’s failure to testify, and a capital defendant – even where he has acknowledged death-eligibility – has much to lose by virtue of that speculation. Nonetheless, the Court rarely takes cases in this posture to affirm the grant of habeas relief. And the question before the Court is emphatically not whether Carter applies to the sentencing phase of a capital trial in these circumstances. Rather, the question is whether the right claimed was firmly in place at the time of Woodall’s state criminal proceedings. The Court could decide that its language in Mitchell concerning lack of remorse precludes a finding that the right is “clearly established,” though arguably Mitchell referred only to a defendant’s efforts to reduce a sentence, where here the lack of remorse could have had aggravating impact (and thus the defendant’s silence could have contributed to his death sentence). Alternatively, the Court could find that violation of the prophylactic right produced insufficient harm, especially in the context of a highly aggravated offense. The problem, though, as the Sixth Circuit noted in its opinion, is that the trial court itself believed that Woodall should be penalized for his silence, which highlights the reasons for Carter’s prophylactic protections in the first instance.
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