Supreme Court Dispatches

What You Don't Know Can Kill You

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With a nod to efficiency, I'll save those of you planning to post in "The Fray" tonight some work. Since today's oral argument involves the death penalty, all you death penalty advocates should feel free to clip and drag one of the following messages directly into The Fray:

1) Lithwick is a low-fat-mochaccino-drinking liberal whose soft-headed notions are responsible for destroying America.

2) Lithwick has obviously never been the victim of a violent crime. Such people should have no voice in the public discourse on capital punishment.

3) The Bible says "an eye for an eye."

That should about cover the waterfront ...

Williams vs. Taylor is about statutory interpretation and has little to do with capital punishment, although the screaming protesters outside the Supreme Court this morning seem to think it does. A cop tells me a "bunch" of them were arrested for rushing the barricades. I hope they don't seek federal habeas corpus relief under the Anti-Terrorism and Effective Death Penalty Act.

AEDPA (or, as we called it when I was clerking, the "Efficient Death Penalty Act") was enacted in 1996 to hose out death row. Sick of the shuffling pace of the capital appeals machine—15-year all-expense-paid accommodations and endless frivolous appeals—Congress enacted AEDPA to limit the kinds and number of federal habeas corpus appeals available to capital defendants. Section 2254 (e) (2) prohibits post-trial evidentiary hearings if the defendant has "failed to develop" a factual claim, unless his claim relies on either: 1) new constitutional law; or 2) facts that couldn't have been discovered through the exercise of due diligence. Section 2254 (e) (2) (B) requires that he show by clear and convincing evidence that he's not guilty.

Michael Wayne Williams (a colleague observed that he's going to die merely because his name is Wayne—in much the same way that the shirtless guy always gets arrested on COPS) is screwed under AEDPA. Williams says he didn't "fail" to develop exculpatory facts, because the prosecutor in his murder case either hid those facts or lied about them. The state's contention is that even if that were true, the intent of Congress in enacting AEDPA is indisputable: Williams didn't develop the exonerating facts at his first appeal, so Williams gets put down.

Let's agree on this: Williams and his co-conspirator, Jeffrey Allen Cruse, are monsters who probably don't deserve to live. But that's not the question. The question is whether the state can make Williams die. Williams and Cruse got drunk and stoned and thought it would be fun to rob Mr. and Mrs. Keller, formerly of Virginia. After robbing them, they raped Mrs. Keller, shot and killed her and her husband, stole a bunch of stuff, and burned down their house.

Some of you are probably saying, "Kill 'em both like the dogs they are." But Virginia law seems to hold that only he who fired the fatal shot may be executed, while the accomplice gets prison for life. Williams insists he only fired one shot, whereas Cruse fired the lethal shots. Cruse says the opposite. It's tough to prove either story when the body is riddled with bullet holes. As Scalia quips, "Always go in with a cohort."

Since the question of who fired that lethal shot is crucial, and since Williams and Cruse blame each other, you'd think a fair trial might be in order. Even death penalty advocates favor fair trials, don't they?

So. One of Williams' jurors had been married to the same sheriff who testified at trial. He was the father of her four children. When asked on voir dire if she was related to any witnesses, she said no. Also, when asked whether she had ever been represented by any of the attorneys in the case, she failed to disclose that the prosecutor had been her divorce lawyer. Oh, and the prosecutor felt no need to disclose that fact either. This town is like Dr. Quinn, Medicine Woman, where the bailiff is also the barber and the vet.

Then there's the psychological report on the prosecution's star witness, Cruse, indicating that he was so loaded at the time of the murders that he had "little recollection" of what happened. Despite requests and court orders to turn over the report, the prosecution failed to do so, insisting the report was in the file although Williams' attorney swears it was not. The prosecution also denied it had cut any plea agreement with Cruse—again despite multiple requests.

The jurors may have liked to know that Cruse's memory improved significantly with the promise of a plea bargain or that their forewoman had been married to the sheriff. It might have affected their decision to execute Williams.

We can quibble about whether the juror was technically "related" to her ex-husband. When Williams' attorney, John Blume, suggests that marriage renders the two parties "related," Chief Justice Rehnquist is so infuriated, he practically spits, "You're just wrong" and accuses Blume of "fuzzing over" the facts.

And we can quibble about whether the same juror lied under oath when she denied that any lawyer involved in the case had represented her. "Wasn't it an uncontested divorce?" asks Rehnquist. "Isn't the population of Cumberland County only 7,500?" asks Rehnquist. (Wait, and doesn't Goofy play the entire infield in that Disney movie? Does that mean I'd want all 12 Goofys on my jury?)

And, again, we can quibble about whether the prosecutor's office lied about the plea agreement and failed to turn over the psychological report on Cruse. "They sent a laundry list of requests," says Donald Curry, the assistant attorney general, insisting that they didn't ask for that specific report (the one they didn't know existed), so he did nothing wrong.

But even if the state did nothing improper in withholding exculpatory information from Williams' state habeas counsel, the question for today is: Was the failure to unearth this evidence Williams' fault? Because Williams' attorney asked the jury whether it was biased. And Williams' attorney filed a motion requesting Cruse's psychiatric records. And Cruse testified he had no plea agreement with the state. So what, Kafka might inquire, was Williams to do differently? Or, as Justice Souter asks of Curry, "Can you really say Williams failed to develop these facts?"

"Absolutely," answers Curry, who arguably helped Williams fail to develop these facts.

Today the justices try to tease out whether Congress' intent in drafting AEDPA was truly to deny a petitioner the right to file new claims, even if prosecutorial bad faith was the reason the defendant "failed" to know such claims existed. Does "failed" mean Williams didn't try to elicit exculpatory evidence? Or does it mean that because he just didn't manage to do so, tough luck?

Rehnquist, who seems to want to flip the switch on the injection machine all by himself today, favors the latter position: "At a golf tournament, saying someone failed to make the cut doesn't mean he didn't play as well as he could have. It's just a factual statement."

Williams' lawyer, Blume, suggests you cannot accuse his client of "failing to develop" facts when he availed himself of every means to do so but was obstructed. He urges a reading of "fails" requiring fault on the part of petitioner.

Justice Breyer, gripping his face as if he has a debilitating toothache, asks Curry why it wouldn't make sense to go back and hold an evidentiary hearing on the missing psychological report.

"That's not what Congress intended," replies Curry. He says the "and" in the statute requires a claim of actual innocence before relief can be granted, even if Williams could allege his new facts. Williams does not claim factual innocence—he just claims innocence of the death-penalty charge.

Souter asks whether Curry really means to take the position that no prisoner is entitled to federal habeas relief unless he is factually innocent. (Has innocent until proved guilty morphed into death unless proved innocent?)

"That was Congress' intent," replies Curry.

O'Connor asks why most of the other federal circuits have required some element of fault in finding a "failure to develop facts."

"They're dead wrong."

Justice Stevens has had enough. The prosecutor allowed a juror to lie about her relationship with the prosecution's witness. "What was the failure on [Williams'] part?"

"He could have interviewed the jurors." (He did. She lied.)

I'm not certain why we're even discussing congressional intent since Congress clearly intended to close off a perceived "loophole" by denying even some reasonable habeas claims. No one ever disputed that AEDPA intended to sacrifice some justice for speedier executions. The question is how much justice and how speedy the execution. Williams will probably find out soon enough. Breyer, Souter, Ginsburg, and Stevens dissenting.

As Charles Dickens once wrote, "This ain't the shop for justice."

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