Habeas Corpus

  • July 5, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law and Lee Kovarsky, Professor of Law University of Maryland Francis King Carey School of Law. Professors Garrett and Kovarsky co-author a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, published by Foundation Press. 

    This week, in Davila v. Davis, the Supreme Court blocked a promising avenue for criminal defendants to enforce their rights to counsel. After Davila, when a state habeas lawyer forfeits an argument that an inmate was deprived of the constitutional right to appellate counsel, the inmate is out of luck. The holding came in a death penalty case, but the rule applies against noncapital defendants too.

    The fact pattern was familiar: trial counsel objected to an unlawful jury instruction, but appellate and state habeas lawyers ignored the claim. And the instructional error was really important, because it likely allowed Davila to be convicted of capital murder based on insufficient evidence of intent. Texas permits the death penalty to be imposed for multiple intentional killings, and has a transferred intent rule providing that, in situations where someone trying to murder one person kills another, the killing is still “intentional.” Erick Davila killed two people, but the evidence strongly suggested that he had tried to kill only one person—who was not a victim. Davila means that, had the scenario involved trial counsel’s failure to challenge the instruction rather than appellate counsel’s failure to appeal the issue, the claim could be revived in federal court. But because appellate counsel made the mistake, it cannot.

    What a mess.

  • April 26, 2017
    Guest Post

    by Brian W. Stull, Senior Staff Attorney, Capital Punishment Project at the American Civil Liberties Union

    Monday’s argument in Davila v. Davis involved a technical question of habeas corpus procedure: can a prisoner’s failure to raise the ineffectiveness of his direct appellate counsel in a collateral state post-conviction proceeding be excused by the ineffectiveness of the post-conviction lawyer? But the answer may turn on the more familiar judicial concern over opening floodgates. Some of the justices appeared concerned that the extension of Martinez v. Ryan and Trevino v. Thaler Davila proposed would do just that. To ground that discussion in facts, Justice Breyer asked for empirical data. While the advocates did not have ready answers at the lectern, answers were relatively easy to find at the computer.

    Justice Breyer asked petitioner Davila’s attorney to “what extent has the Martinez claim proved a burden on Federal court? Is there any empirical information?” Counsel did not have a ready answer. Justice Breyer later asked the same of the Solicitor General of Texas, who repeated the figure of 3,800 cases, which Texas had previously cited in its Respondent’s Brief.

    It is easy to reproduce this figure by searching on Westlaw for those district court decisions citing either Martinez or Trevino. Sure enough, the number is nearly exact (3,837). But spot checking of the 3,800 leads to at least three pertinent observations. First, not all cases citing one of the two decisions involved a claim under Martinez/Trevino. A court may cite Martinez or Trevino for a proposition stated within, without deciding a claim based on the decisions.

  • February 9, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Someone please give the new administration and its lawyers a pile of pocket constitutions. With a straight face, apparently, government lawyers argued earlier this week that the Trump executive order on immigration and refugees could not even be reviewed in the courts. But because the executive order violates the constitution so blatantly, yesterday the Ninth Circuit delivered a stinging blow to the administration. 

    In their unanimous opinion, the Ninth Circuit highlighted how totally unsupported the government position was---there was simply “no precedent” that such an order would be “unreviewable” by the courts. The very notion runs “contrary to the fundamental structure of our democracy.”  In other words, the administration lost big.

    It was surprising that in its papers, the government cited Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees. This was another bumbling move. The Boumediene decision was front and center in the Ninth Circuit's decision.

    Boumediene was the ruling that once and for all undid President George W. Bush’s effort to make “unreviewable” the cases of the people detailed at Guantanamo Bay. In Boumediene, the Supreme Court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."  

  • March 25, 2013
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and Director of the Witness to Guantanamo project and author of Our Nation Unhinged, the Human Consequences of the War on Terror

    Damien Corsetti was an interrogator at the Bagram Air Force Base in Afghanistan in 2002, where, according to The New York Times, he was known as the “King of Torture.”  In 2006, he was prosecuted for alleged abusive treatment he committed while an interrogator, but was acquitted.  Nevertheless, he told our Witness to Guantanamo project that he had mistreated his prisoners.

    When he began working in summer 2002, Corsetti believed in what he was doing.  He thought they were all guilty and, like most Americans, he was angry.  He explained how he had obtained information regarding several alleged plots through his interrogations in time for the U.S. to intervene and prevent the incidents from occurring.  He saved American lives.

    In the months that followed, however, he and other interrogators began to have doubts about their work. They asked a Judge Advocate General, or JAG lawyer, for advice.  The JAG attorney assured them that their actions were legal because the Bush administration had decided not to adhere to the Geneva Conventions. After hearing the JAG assessment, Corsetti felt obligated to follow orders.

    Corsetti told us how he would hood prisoners, tighten the cord at the neck, and then pour water over the hood.  The process wasn’t quite the same as “waterboarding,” but the detainees did experience the sensation of drowning or suffocating.

    He forced prisoners into extremely uncomfortable and awkward “stress positions” for hours.  He noted how the military later renamed the term “stress positions” to “safety positions,” explaining that the safety positions were for the safety of the interrogators and the military personnel on the base, not the detainees.

  • July 17, 2012

    by Jeremy Leaming

    Unless the U.S. Supreme Court steps in to uphold its precedent on the death penalty, Texas and Georgia will execute two men who are mentally disabled.

    Although several states over the last five years have abolished capital punishment, others such as Texas and Georgia remain seemingly oblivious to Supreme Court precedent or obstinately opposed to providing those on death row a proper hearing.

    In Texas, the nation’s most ruthless proponent of capital punishment, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has flat out refused to follow the Supreme Court’s March 2012 Martinez v. Ryan opinion, which cleared the way for federal courts to review some post-conviction habeas reviews raising ineffective counsel claims.

    Yokamon Hearn convicted and sentenced to death for kidnapping and murdering a man in Dallas was not competently represented at trial or at post-conviction proceedings. As the Texas Defender Service notes, Hearn’s trial attorneys failed to uncover and reveal at trial a slew of mitigating circumstances, such as the fact that he suffered from brain damage. During his appeals, Hearn’s new attorney’s also failed to raise the mitigating circumstances.

    Even after the high court’s opinion in Martinez, the Fifth Circuit panel, in what the Atlantic’s Andrew Cohen details as a rather strained opinion found a way to shut down any further review of mitigating factors in Hearn’s case. The court, “the most stridently conservative federal appeals court in the nation” found a way “to avoid giving Hearn the relief to which he is entitled,” Cohen wrote.

    Texas Defender Service Executive Director Kathryn M. Kase notes that the full Fifth Circuit has been asked to review the panel decision, but because of the Circuit’s “history of flouting” Supreme Court rulings fears that Hearn will be executed on July 18, unless the Supreme Court intervenes.

    In the Georgia case, which Cohen also covers, Warren Hill is facing the death penalty even though, as Cohen notes, a veteran Georgia state judge has said Hill is mentally disabled.

    Again, Supreme Court precedent is in play.