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Corcoran v. Levenhagen

Orin Kerr • October 20, 2009 7:37 pm

I wonder if I’m the only one who sees today’s Supreme Court opinion in a death penalty case, Corcoran v. Levenhagen, as somewhat similar to the Court’s order two months ago in In re Troy Davis. As in Davis case, today’s opinion in Corcoran is essentially an order telling a district court to take a fresh look at some issues in a capital case without actually reaching a decision or a holding about anything.

Categories: Supreme Court    

    19 Comments

    1. N.M. says:

      It’s different. It is completely procedural, it’s not an actual innocence claim... The 7th Circuit ignored the fact that the district court didn’t reach the rest of the habeas application... I read that as SCOTUS’s reason for remand. 

      I suppose it’s somewhat similar in that it remands to a district court, but the dissent’s worry in In re Troy Davis is that the court may not even have the ability to offer relief if the district court finds that Davis is actually innocent. There’s no question that the district court may still offer relief here on some of the other claims in Corcoran’s petition.

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      October 20, 2009, 7:43 pm

    2. ruuffles says:

      Also compare today’s stay in the WA R71 case in the other death penalty case in Ohio. The four liberals voted to stay an execution that the state’s parole board recommended clemency. I’d say at the maximum Ginsburg, Breyer, and Sotomayor acted consistently.

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      October 20, 2009, 7:44 pm

    3. Orin Kerr says:

      N.M.

      When I said I thought it was somewhat similar, I did not mean that it was identical; only that it was somewhat similar, especially given that I don’t think the Supreme Court used to do this sort of thing at all.

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      October 20, 2009, 7:53 pm

    4. Soronel Haetir says:

      I agree that this is far different from Davis. This seems like an entirely unremarkable ruling. Perhaps the only oddity being the negligent handling by the 7th circuit.

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      October 20, 2009, 7:54 pm

    5. SuperSkeptic says:

      “essentially an order telling a district court to take a fresh look at some issues in a capital case without actually reaching a decision or a holding about anything.”

      So they are just issuing advisory opinions in capital cases?

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      October 20, 2009, 8:26 pm

    6. Mark N. says:

      The way the 7th circuit handled the case is confusing, if the Supreme Court’s per curiam opinion summarizes it accurately. If some claims are dismissed because a holding renders them moot, and that holding is vacated on appeal, the previously mooted claims become non-moot and must be considered, right? Surely it shouldn’t take time of the Supreme Court to determine that?

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      October 20, 2009, 8:26 pm

    7. SuperSkeptic says:

      Are all these seven people who are changing their story and signing these postconvicton affidavits going to be prosecuted for perjury in this “actual innocence” context? If so, it would seem to deter them from coming forward if the defendant is actually innocent. If not, it might encourage them to collude whether the defendant is actually innocent or not. Justice Stevens seems to want to believe them — now at least.

      Maybe another reason to treat “seven of the State’s key witnesses” with a little more skepticism... I wonder what consideration they were offered by the D.A. in the first place.

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      October 20, 2009, 8:43 pm

    8. Sam Heldman says:

      Like some others who have commented above, I see no substantial similarity. Today’s case was error correction — really bizarrely obvious error correction, of the sort that should never be necessary in any case, much less a capital case. If the Court never used to do this sort of thing, it must either be because lower courts didn’t use to make such bizarre errors in capital cases, or because they did but the Supreme Court didn’t care.

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      October 20, 2009, 8:47 pm

    9. David Schwartz says:

      I agree, this is trivial error correction. There is a central holding — that the lower court utterly failed to consider claims validly before it.

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      October 20, 2009, 11:08 pm

    10. Dave N says:

      This was just sloppiness on the Seventh Circuit’s part — but I also blame the District Court as well.

      The District Court should have issued a ruling on ALL of the pending penalty phase claims and not just the one it found to have merit.

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      October 20, 2009, 11:11 pm

    11. Dave N says:

      If the District Court had done what it should have done, then Corcoran could have sought a COA on those issues (or not, though that would have been sloppy lawyering on his attorneys part if they did not). 

      As it was the Seventh Circuit lacked jurisdiction to consider anything but the issue before it. However, its remedy was simply bad.

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      October 20, 2009, 11:21 pm

    12. Aaron says:

      I would say that this case is similar not so much to Davis as it is to a summary disposition from a few years back called Youngblood v. West Virginia. Both are kind of on the dividing line between a regular summary reversal and a GVR.

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      October 20, 2009, 11:34 pm

    13. Orin Kerr says:

      Sam Heldman writes:

      Like some others who have commented above, I see no substantial similarity. Today’s case was error correction – really bizarrely obvious error correction, of the sort that should never be necessary in any case, much less a capital case. If the Court never used to do this sort of thing, it must either be because lower courts didn’t use to make such bizarre errors in capital cases, or because they did but the Supreme Court didn’t care.

      Sam, I tend to think you’re overlooking two things: 

      1) The Supreme Court does not do error correction. At least, the Supreme Court traditionally has not done error correction in the past. Indeed, what makes these two cases so interesting is that they are a form of error correction: Essentially suspending the usual Supreme Court rules to do error correction in capital cases. And it’s not that the Justices didn’t care, it’s that in a litigious country with more than 300 million people, the Supreme Court has not seen itself as an error correction court. 

      2) These cases aren’t so much error correction as potential error correction. That is, the Justices aren’t sure a wrong result was reached. Ratherm they just want more lower court attention to some potential claims.

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      October 20, 2009, 11:52 pm

    14. without a clue says:

      Remanded to where? To the U.S. Court of Appeals to explain why the remaining claims are without merit or the U.S. District Court to consider the remaining claims?

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      October 21, 2009, 5:16 am

    15. Sam Heldman says:

      Orin Kerr: Sam Heldman writes:
      Sam, I tend to think you’re overlooking two things:
      1) The Supreme Court does not do error correction.At least, the Supreme Court traditionally has not done error correction in the past.Indeed, what makes these two cases so interesting is that they are a form of error correction: Essentially suspending the usual Supreme Court rules to do error correction in capital cases. And it’s not that the Justices didn’t care, it’s that in a litigious country with more than 300 million people, the Supreme Court has not seen itself as an error correction court.2) These cases aren’t so much error correction as potential error correction.That is, the Justices aren’t sure a wrong result was reached.Ratherm they just want more lower court attention to some potential claims.

      I trust you’ve delved back further into the U.S. Reports than I have, but the Supreme Court has been doing error correction as long as I’ve been following its decisions closely. A few argued cases every year are not much more than that, and, even more directly on point, it’s my impression that most of the several summary dispositions (Per Curiams) each year are pure error correction. At least a bunch of them are. I bet that there was a whole lot of error correction in the days when the Court heard 150+ cases per year. Maybe there were a few years in there, when the docket size dropped and they stopped “doing” error correction — but for the last several years at least, it’s been a material part of what they do. Not just in capital cases, but all sorts.

      Was this “potential error” rather than real error? Only in the sense that the defendant (habeas petitioner) might still end up losing in the end. But in that sense, a whole bunch of the cases that the Court hears only involve “potential error.” There was real error here — an appellate order to dismiss the habeas petition even though most of the claims hadn’t been heard.

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      October 21, 2009, 7:14 am

    16. Sam Heldman says:

      Just as one example that pops to mind from a few years ago — Ash v. Tyson, Inc. — summary reversal that was nothing more than “error correction” and could even be described as “potential error” on your terms, in a civil case. Again, you may be right that there were some years when the Court dropped out of this aspect of the business, but I think it’s a good part of the Court’s product line.

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      October 21, 2009, 7:37 am

    17. Human beings should get along says:

      I know this is the wrong post, but since Berstein is too ideological to allow comments to his hyperpartisan rants, I need to comment here. I would like to propose that this blog drop Berstein from its roster of contributors. His highly prejudiced, emotive, hyper-political wing nut posts and attacks on other ideological, hyper-political wing nuts from the other side of the political sphere simply stir up hatred and disagreement among all parties. He does not contribute to viable discourse and is frankly a disgrace as an academic, scholar and human being. To be clear, both sides of the current debate referenced in recent posts are patently wrong and misguided in their positions, represent the worst of their positions, and contribute nothing towards the effort to make the world a better place and bring communication and cooperation to the various debates that they purport to address. People of their ilk should be ridiculed and ignored for being unable to properly contribute to the human race, not given a forum to continue to ensure the continued devolution of our species and its discourses.

      Note that I do not argue that Berstein is absolutely wrong...wisdom comes out of ignorance on many occasions. The wiser person just needs perspective to see the proper interpretation. I liken it to bouncing a tennis ball off of a brick wall. The wise individual (the tennis ball...or those of us who actually do contribute to intelligent and honest debate) will be shaped by those pieces of the ignorant and prejudicial argument (Bernstein, HRW, the brick wall) that are useful to further cooperation, understanding, and productive debate and discourse while the brick wall will continue to stand resolute even in the face of its flaws and idiocies. The only way to deal with a brick wall is to shoot the tennis ball so hard that it destroys the brick wall and its positions or to stop bouncing the ball off that wall altogether. That would mean making Berstein (and HRW) look like such fools (which they are) in front of a large group of people in order to make an example of them and hopefully reach people who are not lost causes. This usually results in the brick wall feeling persecuted and retreating further away from enlightenment, but like I said, I think Berstein is a lost cause. HRW can at least adjust their roster of employees and focus...Berstein is clearly a wing nut who is entrenched in his ignorance. Unfortunately, the wing nuts often take other wing nuts with them even when they are demonstrated to be morally and intellectually bankrupt, which leads to them thinking that they have some sort of legitimacy, which is not desirable if we ever want to accomplish anything. The other method would be to ignore the intellectual dishonesty of the parties by simply not giving them a platform. This would be the path I would ask you to take. Drop Berstein...allow him to spew his ideological nonsense (lacking in perspective, vision and tolerance) elsewhere...and simply chalk him up as a lost cause. Some individuals are simply disgraces to the human race who will never overcome their own prejudice and intolerant attitudes.

      At least on the Israel debate, both sides are blinded by their ideological ignorance and devolved views of the issues involved. Wiser members of society could have solved the problems inherent in the debate long ago were it not for emotive ideologues who argue like three year olds bickering over a red rubber ball and make it impossible to solve any issues when they are constantly working against such progress. This is one of the major flaws in tolerating all viewpoints, no matter how intellectually dishonest or intolerant. The individual who this blog has control over (Berstein) should be sent to his room with his dunce cap to think about his failures as an academic and human being. If that pushes him further into his intolerant shell, so be it. But hyper-partisan ideologues with no sense of perspective nor shred of humanity should be tolerated in the halls of human discourse if we expect to ever make progress at truly making the world a better place for the individual and collective humanity that cannot exist without one another.

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      October 21, 2009, 9:14 am

    18. troll_dc2 says:

      I agree sort of with regard to Bernstein, but on the subject of this thread, I want to ask what is wrong with error correction of the type practiced in this case. It seems to me that the Court is laying down a rule, which is that when an appeals court reverses a district court’s ruling on a point and other issues are unresolved, the appeals court cannot foreclose consideration of those issues.

      I am not sure whether a district court, per Dave N, should always have to resolve every issue presented to it when it has already ruled in favor of the plaintiff, but when it does not, there needs to be a flat rule that it has to be given the opportunity to do so if the appeals court should reverse it on the ruling that was made. The Court could have added one sentence to its ruling to make this clear.

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      October 21, 2009, 9:49 am

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