As I have pointed out the Federal Courts may deny a writ of habeas corpus in a state court case even if the state court is wrong as long as the state court reasonably interpreted a United States Supreme Court decision.

Yesterday, the Supreme Court in Renico v. Lett reversed a grant of habeas corpus by lower Federal Courts. The defendant was charged with murder. He killed a cab driver in a liquor store after Lett’s friend, Charles Jones, claimed the cab driver wrongfully ejected him from the cab.

After a nine hour trial and approximately four hours of deliberation the court declared a mistrial. During deliberation the jury sent several notes to the court. One of the notes asked if its deliberations were so loud that other trials were being disrupted. Another asked what would happen if it was unable to come to a verdict. The court called the jury back into the courtroom and after a brief discussion with the forewoman declared a mistrial.

In a second trial Lett was convicted of second degree murder. He appealed claiming a violation of double jeopardy since there was not a “manifest necessity to declare a mistrial.

Chief Justice Roberts., speaking for the majority said:

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of clearly established Federal law.” . . .

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” . . . Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” . . . Rather, that application must be “objectively unreasonable.”

Therefore, according to the Court, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as long as the state court is not unreasonable its decision will be upheld by the Federal Courts.

In what might be one of his last dissents, Justice Stevens pointed out that Supreme Court decisions going back to Chief Justice Story’s 1824 decision in United States v. Perez have insisted that the decision to declare a mistrial should not be taken easily. Stevens quoted various Supreme Court decisions as stating;

Thus, we have repeatedly reaffirmed that the power to discharge the jury prior to verdict should be reserved for “extraordinary and striking circumstances,” . . . that the trial judge may not take this “weighty” step, . . . unless and until he has “scrupulously” assessed the situation and “taken care to assure himself that it warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal,” . . . that, to exercise sound discretion, the judge may not act “irrationally,” “irresponsibly,” or “precipitately” but must instead act “deliberately” and “carefully,” . . . and that, in view of “the elusive nature of the problem,” mechanical rules are no substitute in the double jeopardy mistrial context for the sensitive application of general standards, . . . The governing legal principles in this area are just that—principles—and their application to any particular set of facts entails an element of judgment.

He pointed out that the trial judge acted abruptly and did not give counsel a chance to object. Furthermore the jury only had four hours to deliberate and some of that time was taken choosing a foreperson. The case, being a murder case was a serious case and rarely is four hours enough time to consider the various issues. As a result he did not feel that a manifest necessity existed to call a mistrial or that the judge gave the decision sufficient consideration. Steven was joined in the dissent by Sotomeyer and Breyer.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

The Supreme Court on an original petition for habeas corpus ordered the US District Court for the Southern District of Georgia to hold hearings and to decide whether evidence developed since the trial of Troy Davis establishes Davis’ innocence.

Troy Davis was charged with and convicted of the murder of an off duty Georgia police officer. Nine witnesses testified for the prosecution at trial. Seven of these witnesses have recanted. This will give a Federal judge the power to listed to these witnesses and other witnesses that have come forward and determine whether or not Troy Davis is telling the truth when he says he is innocent. It will not be an easy job. To meet the Supreme Court’s test Davis will have to “clearly establish” his innocence. This is a much more difficult task than proving, at trial, that there is a reasonable doubt that he is not guilty.

Justice Scalia dissented from the Court’s opinion. He asserts that Davis is guilty and that the District Court is without power to change the result of the trial. Justice Stevens filed a concurring opinion disputing Scalia’s argument. As Justice Stevens points out no court has ever had a hearing to determine the validity of the numerous affidavits challenging the lower court decision. He points out that the lower court may find that restrictions on reversing lower court decisions may not apply to original petitions in the Supreme Court or to findings of innocence either on statutory grounds or on constitutional grounds.

There is good reason not to apply the rules for habeas corpus to findings of innocence. By definitions findings of innocence imply that evidence, not available at trial and only developed post trial, prove the defendant’s innocence. Since the habeas rules apply strict timelines evidence found years after trial would not be admissible in a habeas. Yet this post trial evidence is the very type of evidence one would expect in a claim of innocence. This is particularly important in a case such as Troy Davis’ where he is sentenced to death. As Justice Stevens pointed out we certainly do not want to execute the wrong person.

In Michigan v. Jackson the Supreme Court held that if a defendant asserts his/her right to counsel at an arraignment or similar hearing any waiver of the right to have counsel present when the police initiate an interrogation is considered invalid. In Montejo v. Louisiana the Supreme Court yesterday overruled Jackson

In Montejo, a murder case, the defendant remained quiet while the Louisiana Court at what it calls a 72 hour hearing automatically appointed counsel. But before counsel could meet with the client the police got the defendant to show the police where the murder weapon was located. While the defendant was helping the police find the weapon and after Miranda warnings were given and waived the defendant wrote a letter to the family of the victim apologizing for killing the victim. Over objection this letter was read at trial and the defendant was convicted of murder.

Under a strict reading of Jackson the facts in Montejo do not apply since there was no request for counsel. But the Supreme Court was worried about the uniform application of the law, since the states divide with approximately half requiring a defendant to request counsel and approximately half automatically appointing counsel. The rule of law should not depend on whether the state requires a request or automatically appoints counsel.

But the underlying reason for Jackson, according to the Court, the prevention of badgering by the police once a defendant requests counsel is not applicable in those states that automatically appoint counsel. Furthermore the Court found in an opinion by Justice Scalia that defendants are sufficiently protected by Miranda, which requires that defendants be told that they have a right to the presence of counsel at an in custody interrogation, Edwards v. Arizona, which held that once a defendant had asserted his/her Miranda rights further interrogation could not occur until an attorney was appointed, and Minnick v. Mississippi which held that the attorney must actually be present at any interrogation after the defendant asserts his/her Miranda rights. Weighing the injury to the truth finding function of our courts against the protection of Fifth and Sixth amendment rights provided by Miranda, Edwards, and Minnick the majority of the Court found that Jackson’s protection of the defendant’s rights was outweighed by society’s need for valid confessions.

Justice Stevens, in dissent, points out that the majority misunderstand the basis for Jackson. It is not based upon the Fifth Amendment need to protect the defendant from badgering as is Edwards, but rather it is based on the Sixth Amendment need to ” ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” Unlike Edwards, and like Jackson, Montejo involves post arraignment police interrogation. It is only at arraignment that the Sixth Amendment right to counsel is incurred. While Justice Stevens agrees that the Louisiana Supreme Court does a great disservice to the Supreme Court’s interpretation of Jackson. He would merely override the Louisiana Supreme Court’s decision and he would maintain the ruling of Jackson under the rule of stare decisis, particularly in light of the fact that none of the parties asked that it be overruled.

The Supreme Court ruled that an accidental discharge of a gun during a drug trafficking or violent crime results in a mandatory ten year sentence in addition to the punishment for the underlying offense pursuant to Title 18 U. S C. Section 924(c)91)(A).

Under Title 18 U. S C. Section 924(c)91)(A) the possession of a gun during certain crimes results in an additional sentence of five years, the brandishing of a weapon during the commission of the same crimes results in an additional seven years and the discharge of a weapon during the commission of the crimes results in an additional sentence of ten years. The question before the Supreme Court in Dean v. United States was whether the government had to prove that the discharge occurred with a particular intent or whether the accidental discharge of the weapon was sufficient.

Reading the statute, it is not surprising that the court found that the government did not have to prove any intent. The statute states:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

But as Justice Stevens points out in dissent:

Accidents happen, but they seldom give rise to criminal liability. Indeed, if they cause no harm they seldom give rise to any liability. The Court today nevertheless holds that petitioner is subject to a mandatory additional sentence–a species of criminal liability–for an accident that caused no harm. For two reasons, 18 U. S. C. §924(c)(1)(A)(iii) should not be so construed. First, the structure of §924(c)(1)(A) suggests that Congress intended to provide escalating sentences for increasingly culpable conduct and that the discharge provision therefore applies only to intentional discharges. Second, even if the statute did not affirmatively support that inference, the common-law presumption that provisions imposing criminal penalties require proof of mens rea would lead to the same conclusion.

As any first year law student learns each crimes must have a mens rea or in English an intent. With exception of minor crimes such as traffic violations we do imprison individuals unless they commit an act which society finds to be a crime and that the act is committed with a particular intent to do the act. In some cases it may suffice that the act was knowingly done. In others it may be with the intent to injure someone. But rarely, except in minor crimes, is no intent or mens rea needed. Again quoting Justice Stevens:

[T]he presumption that criminal provisions include an intent requirement would lead me to the same conclusion. Consistent with the common-law tradition, the requirement of mens rea has long been the rule of our criminal jurisprudence. . . . The concept of crime as a “concurrence of an evil-meaning mind with an evil-doing hand … took deep and early root in American soil.” . . . Legislating against that backdrop, States often omitted intent elements when codifying the criminal law, and “courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation.” . . . Similarly, absent a clear statement by Congress that it intended to create a strict-liability offense, a mens rea requirement has generally been presumed in federal statutes. . . . With only a few narrowly delineated exceptions for such crimes as statutory rape and public welfare offenses, the presumption remains the rule today. . . .

In 1986 in a decision written by Justice Stevens, Michigan v. Jackson the Supreme Court ruled that after a defendant requests the appointment of counsel at arraignment any contact between him and the government must be initiated by the defendant. The police cannot contact the defendant and attempt to get a confession. Without such a rule the police can go behind counsel’s back in an attempt to get a confession or a defendant can be coerced into confessing.

The Obama administration filed an amicus brief in Montejo v. Louisiana asking the Supreme Court to overrule Jackson. The solicitor general argues that the purpose of the Sixth Amendment is to protect the adversarial process but as she admits and as the Supreme Court has often stated much of what is important in the defense of a defendant occurs outside the courtroom. For example plea bargaining may occur in a telephone conversation.

She further argues that it would be sufficient to use a Miranda type warning to waive the right to counsel. While Miranda has limited efficiency prior to the appointment of counsel, a waiver of the right to counsel is certainly better if the defendant has the advice of counsel. With counsel available why not use him or her. Certainly their may be times when a confession is appropriate. Even if counsel does not feel it is appropriate, counsel’s duty to represent the client includes the duty to help the client confess even if counsel does not feel it is appropriate but the defendant so desires.

The government argues that the Jackson rule has limited but significant costs. It points out that most prosecutors are prevented from conversing with defendants due to state ethical rules preventing lawyers from conversing with represented individuals. The very presence of these ethical rules points to the possibility of coercion and the undermining of counsel inherent in the situation if Johnson is overruled. But still if Jackson is overruled police will be able to initiate and coerce defendants into waiving their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. The injury to the integrity of our courts is not insignificant. Even a few coerced or forced confessions result in the degradation of the United States justice system.

Finally the solicitor general argues that Jackson has been undermined by subsequent decisions. While the decision has been limited in several cases that is no reason to abolish the basic rule which remains strong.