blind insight

The streak continues!*

The Tenth Circuit handed me a huge win yesterday, in one of the cases I argued in May. The (truly excellent**) opinion is here. This is my first appellate win in several years that actually results in my client obtaining the writ of habeas corpus and having his conviction overturned.

I am thrilled!

*OK, it probably doesn't qualify as a streak, because I have lost a couple of cases recently. But still! 2006 has been a good year for the habeas docket!

**Biased? Me?

Can't look away.

I'm still watching InJustice, usually early in the morning while I pedal my road bike on the trainer. And it's getting better. The episode a few weeks ago, in which the National Justice Project was attempting to stop an execution, had me sobbing uncontrollably over my handlebars. Sure, David Swain tearing through the halls of the California Supreme Court at midnight was a little dramatic. But the court repeatedly telling him that he'd had his shot at postconviction relief, and that finality mattered far more than the fact that the team had found the real killer, that's pretty much dead-on. Which, of course, sucks, but that's another issue.

I remain irritated with the show's stupid mistakes (this week's epidode featured a wrongfully convicted couple serving "30 to life" in a federal prison. There are no indeterminate federal sentences, at least not imposed in the past 20 years). Its cavalier use of the term "habeas" and disregard for what a "habeas" actually involves also irks me (at least once per episode, someone says "that gives us enough for a habeas" or "we're going to go in with a habeas and get a hearing").

But the zeal and determination and compassion with which the team pursues its cases is engrossing. I'm even starting to like Kyle MacLachlan's pompous Swain, particularly after he fell on his sword to free one of his clients this week.

The real appeal, though, is that these guys almost always win. And, you know, it's nice to at least imagine a world in which the wrongfully convicted can frequently and with relative ease be freed.

More About Innocence.

I have more to tell you about the CI process, mostly on the subject of Why Insurance Companies Drive Me Crazy. But first, I wanted to alert those of you in my neck of the woods to a project I've been working on for the past couple of weeks:

I screened the film and met with the panelists earlier this week, because I'll be introducing the program. The film is extraordinary - powerful, moving, upsetting, and in some ways exhilarating. The panelists come to the issue of wrongful convictions from many different perspectives, and their discussion should add an important element to the experience. If you can, please try to join us tomorrow night at the Starz Film Center. If not, the film is playing through February 9 in Denver, and is also playing around the country. For more information, visit www.afterinnocence.com.

Incidentally, I'm still watching InJustice. I still think it's garbage television. But, as the commenter masquerading as Judge Justice Alito pointed out, it does have the potential to raise public awareness about the huge flaws in the criminal justice system and the very real problem of wrongful convictions. Also, that ex-cop-with-a-conscience is really cute.

Not Innocent.

Thanks to Dawn for passing on to me the news that the new DNA testing shows only a minuscule chance that someone other than Roger Coleman committed the crime for which he was executed. As one of the investigators is quoted as saying, the news feels like a kick to the gut. I'm still processing my reaction to this revelation, and would welcome comments about yours.

ABC: read AEDPA.

A few weeks ago, while watching my secret addiction, Gray's Anatomy (as opposed to my well-known addiction, Law & Order), I started seeing ads for the latest Kyle MacLachlan vehicle, InJustice. The trailers suggested an intriguing and relevant-to-me premise, a lawyer drama about wrongful convictions. I set the DVR to record the series, and eagerly awaited the pilot episodes.

Two shows into the season, I'm ready to write the whole thing off. Poor writing, marginal acting, and ridiculously improbable plot lines are usually more than enough to doom a television program to my blacklist (which is why about 75% of what I watch is Law & Order or L&O SVU, and another 15% is sports). Still, I feel compelled to keep watching. Because, in principle at least, this show is about my work.

The premise is fairly straightforward: Kyle MacLachlan is David Swain, a rich corporate lawyer with political yearnings who has funded the National Justice Project. While he dozes through meetings, billing $600 per hour, his team of gorgeous young lawyers and investigators runs around proving the innocence of convicted men and women while flirting and bickering with one another.

Setting aside the exceptional attractiveness of Swain's posse, the NJP bears some resemblance to the Innocence Project in which I participate. We receive dozens of inquiries, we screen them, we discuss them, and where we have serious concerns that the inmate may be factually innocent, we try to do something about it by getting lawyers and investigators on the case.

But what the InJustice writers either don't know or have chosen to ignore is that proving someone's innocence many years after he or she has been convicted is extraordinarily difficult. And even when that innocence can be proven, there is no guarantee that the courts or the government will accept that proof or grant the individual relief. The barriers to justice are particularly formidable in cases like the two the show has treated so far, which involve eyewitness testimony, police misconduct, or ineffective assistance of counsel, rather than physical evidence that may be subjected to new testing technologies.

The show certainly is engaging, and at times heartwrenching. But its treatment of the grave issue of wrongful convictions is grossly oversimplified. For example, in last week's episode, the National Justice Project takes a case, "files a habeas" (according to Swain), and almost immediately manages to obtain a hearing on the prisoner's innocence, despite the fact that the conviction is more than a decade old. Having accomplished that extraordinary feat - the stringent evidentiary hearing restrictions of the federal habeas statutes apparently having no bearing on them - the team has 9 days to prove the inmate's innocence. How do they do this? By adhering to their cardinal rule about public defenders: "Do the opposite."

Of course, the public defender was lazy and sloppy, the eyewitnesses revise their testimony, and it is only a matter of days before the NJP folks have uncovered a high-level law-enforcement conspiracy that led to the wrongful conviction. While we do not see the hearing, it appears that all of this new evidence is presented to and accepted by the court. And the very next day, the innocent man walks out the prison gates into the arms of his family.

I recognize that the concepts such as exhaustion, procedural default, the statute of limitations, and successive petition restrictions do not make for sexy television. I recognize also that this show has the potential to raise public awareness of the reality of wrongful convictions, at a time when support for the death penalty seems to be waning considerably. Still, the inaccuracy and oversimplification this show is presenting does an InJustice to those of us who, for real, seek to remedy and invalidate wrongful convictions.

An Innocent Man? (Redux)

This story from the morning's news sent chills down my spine. I posted some thoughts about Roger Coleman's case last year, and rereading them today rekindled the anger this case always stirs for me.

Will new DNA technology prove Coleman's innocence? Will it instead prove all of us wrong, who have long proclaimed that innocence, and show us up as bleeding-heart chumps for touting Coleman's case as a horrifying example of the death penalty's evils and the criminal justice system's failings? Or will it only build another layer of ambiguity onto the decades-old pile of confusion about who killed Wanda McCoy? And while proof of his innocence cannot save Coleman, who was executed in 1992, will it benefit others who seek to prove their wrongful convictions through advanced DNA-testing technology, and will it further undermine Americans' reportedly waning support for capital punishment?

I am waiting eagerly and anxiously for the results.

100 minutes seemed a lot longer when I was in law school.

I mentioned a couple of months ago that I would be speaking to a group of law students about federal habeas procedure and wrongful convictions. That much-anticipated presentation rolled around last night, and despite my post-vacation chaos, early-stage wedding-planning obsession, and house-buying-and-selling insanity, I somehow managed to pull together my materials for the class and had a wonderful time presenting.

When I walked into the room, I suddenly realized that it has been nearly a decade since I left law school. Yet I still feel like I'm just getting the hang of my profession, and I often wonder when the mantle of authority and expertise will sit comfortably on my shoulders. By the same token, these students (mostly 3Ls) seemed older, more mature, and more focused than I remember feeling as a law student. Though they were obviously overwhelmed by the procedural intricacies of federal habeas practice, and seemed a bit shellshocked by the realization that the federal courts are not terribly interested in whether or not a state prisoner is factually or legally innocent, they seemed to understand most of what I was saying. In fact, the professor later told me that he only saw one student's eyes glaze over during the 100-minute class session, and he considered this quite an accomplishment on my part.

I was surprised at how much I enjoyed explaining the basics of habeas, and I found it easier than anticipated to find a balance between overgeneralization and excruciating detail. I spoke about some of my favorite cases and clients, and offered some success stories to counter the sense of futility most of them were experiencing. Several students asked excellent questions relating to specific aspects of the cases on which they are assisting, and they all seem to be working diligently to help overturn wrongful convictions.

Steve came along to listen, which was a real treat for me and gave him a better sense of what I do for a living. He absorbed most of the material pretty well, and I assured him that the habeas jargon he found so confusing was equally inaccessible to the vast majority of lawyers and law students. He gave me very helpful (and shockingly positive) feedback on my teaching style, and planted the seeds of an idea that will require further exploration down the road. I also received some great follow-up e-mails from the students, indicating that they actually were listening and paying attention to most of what I had to say.

Such fun. And just what I needed to generate the motivation and focus to crank out a brief, prepare for oral argument, and jump into yet another enormous new case record.

The post that may very well result in my being disinherited.

I am now the proud (?!) owner of an official Justice Sandra Day O’Connor bobblehead doll, courtesy of The Green Bag (to which I subscribe only for the articles, of course). While I’m not necessarily a fan of Sandy and her (case) swinging ways, she does have the distinction of being the very first Supreme Court Justice of whom I was aware in any tangible way.

Back in 1986, the Supreme Court decided Bowers v. Hardwick, which held that Georgia constitutionally could outlaw gay sex (and which - in case you've been living in a cave with Osama bin Laden - was overrulled last year in Lawrence v. Texas). Later that year, my mother wrote and performed a show-stopping number at the Boulder County Bar Association show. The song, to the tune of Sweet Georgia Brown, lambasted the Bowers decision in brilliantly rhyming fashion. But the best part of the act was my mother herself as Justice O, prancing around the stage sporting a black judicial robe, white puffy collar, blonde wig, and (oh yes) a green foam Miss Liberty tiara.

And people wonder why I wanted to become a lawyer.

Venting, Supremely.

The Supremes have spoken, setting off two days of scrambling and discussing and brainstorming and musing and running back and forth to judges' courtrooms and chambers (not all by me). It's an interesting time.

Yet the decisions that sent me into a tizzy yesterday made rather less noise nationally. In two capital cases, the Court once again held that the finality of state court convictions is more important than fixing constitutional errors, even in death penalty cases. I remain baffled and increasingly angry at how any state interest can take precedence over ensuring that the ultimate penalty - if we are going to impose it at all - is administered with absolute fairness and utmost care. I fail to comprehend why anyone's life should be spared or sacrificed based on an arbitrary date on the procedural calendar, and I defy anyone to give me an explanation for the Teague* rule that is both logically and morally defensible.

__________________
*Teague v. Lane, 489 U.S. 288 (1989), is one of the habeas lawyer's greatest nemeses. Teague teaches that when the Supreme Court announces a "new rule" of constitutional criminal procedure, the decision applies to all cases that are not yet final on "direct appeal" (e.g., straight up from the conviction), but not to older cases in which the new decision would be raised on "collateral review" (e.g., habeas corpus). There are two exceptions to this non-retroactivity principle. One is where the new decision de-criminalizes certain conduct. The other is where the rule is of such watershed importance as to "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." It is difficult to tell just how fair and accurate the Supreme Court expects convictions to be, however, because the Court has consistently rejected attempts to apply retroactively any "new rule" other than the right to counsel (which wasn't even "new" when Teague came down).

Thompson, redux.

The Sixth Circuit today issued this remarkable decision. May it withstand further scrutiny better than my own Thompson death penalty case.

And may this be at least a partial answer to those who wonder what kind of impact law clerks have on the judicial process. Bravo!