Summary Reversal Watch in Jefferson v. Upton

It has been a very busy Term at the Supreme Court for summary reversals: There have been 10 already—far more than the Court usually has in an average Term, and the Term ain’t over yet.  The odds are good that we’re about to get one more, in a capital case out of the Eleventh Circuit, Lawrence Joseph Jefferson v. Stephen Upton, Warden, 09-8852, which we briefly discussed in the comment thread to my May 3 post on some business relists.   The case has been relisted six times beginning back on March 19, suggesting that either a summary reversal or a dissent from denial of cert. is in the works.  Given the circumstances of the case, I suspect the former.

Right off the bat you know this is not your usual capital case in that the defendant’s middle name is neither “Wayne” nor “Dale,” which standing alone is probably enough to support a claim of actual innocence.  Compare this and this and this and this and this and this.

But another unusual fact will wind up being far more consequential: Mr. Jefferson filed his federal habeas petition on April 23, 1996. In addition to being a rainy Tuesday in Spring, it was also the day before President Clinton signed the the Antiterrorism and Effective Death Penalty Act.  Thus, questions of law and mixed questions of law and fact are reviewed de novo rather than under the deferential standard applied by AEDPA, i.e., whether the state court unreasonably applied clearly established federal law, as determined by the Supreme Court of the United States. In a noncapital case, that fact might militate against review, because the Supreme Court would not have much interest in clarifying the application of a now-defunct standard of review. But the fact that Mr. Jefferson’s claim would be assessed under the lower pre-AEDPA standards make it much more likely he would have a claim for relief, and that fact makes it more likely the Court will reach out and take his case. When the Court is only taking half as many cases as it did during the 1980s, it’s not in a great position to say it’s too busy to deal with “factbound error correction” when the stakes are so high.

Jefferson was convicted in 1986 in Georgia state court of beating a coworker to death with a log and robbing him. During the sentencing phase, Jefferson’s attorneys presented mitigation testimony about Jefferson’s upbringing, military and work experience. But apart from a passing remark from Jefferson’s mother that he had been injured at age 2 when a car ran over the top of his head, counsel made no suggestion that Jefferson had a mental impairment that might warrant sparing him the death penalty. Jefferson’s expert psychologist said in his report to trial counsel that “it would be worthwhile to conduct neuropsychological evaluation of this individual to rule out an organic etiology.” But trial counsel did not follow up, supposedly, because the expert later told counsel orally that it probably wouldn’t matter, because Jefferson wasn’t crazy or impaired—“Lawrence was just a criminal.” (The expert denied the statement, but the state court credited it.) Instead, counsel relied on a “residual doubt” strategy of playing on juror doubts that he was the true killer.  Jefferson was sentenced to death.

Doctors later concluded that the accident caused permanent brain damage that affected Jefferson’s cognition and diminished his impulse control. During habeas proceedings, Jefferson argued that trial counsel had rendered constitutionally deficient performance by failing to follow up on the expert’s report. The district court agreed. A divided panel of the Eleventh Circuit (Judge Marcus, joined by Judge Tjoflat) reversed, holding that there is a “strong presumption” on habeas that counsel behaved reasonably, and that “the standard is even higher where,” as here, “experienced counsel is involved.” The court found counsel had not been constitutionally ineffective, pointing to counsel’s thorough investigation and vigorous litigation at the guilt phase (they filed 30 motions) and the fact that the expert report did not itself suggest Jefferson was significantly impaired, and thus concluded that it was reasonable to forego psychological testing to focus on a defense of residual doubt.

Judge Carnes dissented. Strenuously. And at some length (23 pages to the majority’s ~59 pages), saying that counsel’s failure to conduct neurological testing left the jury with a skewed view of the defendant that omitted significant evidence of impulse control and impaired cognition. Carnes argued that in the absence of some convincing reason for the psychological expert to alter his written recommendation in his conversation with trial counsel, it was unreasonable for counsel to drop the psychological expert’s suggestion to conduct such testing. He also thought that the fact that counsel had performed effectively at the guilt phase did not necessarily carry over to sentencing, and that it was unreasonable to forego psychological testing when there was no reason to believe it would be inconsistent with a strategy of residual doubt—particularly because counsel all but conceded guilt in the death-phase closing by stating that he had “str[uc]k[] out at a defenseless person.”

In his cert. petition, Jefferson uses the Eleventh Circuit’s even-higher-than-a-strong-presumption-of-correctness standard for experienced counsel as an organizing theme for attacking his counsel’s performance as deficient, arguing that the Court’s precedents require assessing counsel’s conduct by “prevailing professional norms” that do not change based on the counsel’s experience. The record also reveals other things that, while not the focus of the petition, may draw the Court’s attention: there are indications that the state court’s findings of law and fact during state habeas were drafted in their entirety by the Georgia attorney general’s office, and adopted in full despite apparent factual errors, and a juror allegedly read a Bible passage aloud during deliberations while seeking divine guidance in making a sentencing determination. The Georgia Attorney General counters in his opp that the Eleventh Circuit’s decision is correct under a straightforward application of Strickland v. Washington. The reply brief is here.

A summary reversal seems likely, for a few reasons. First, this is a capital case, and second, it is to be decided under the old standard, which makes relief a much lighter lift. Third, Judge Carnes, who has earned a reputation as a thoughtful law-and-order conservative, dissented at length advocating habeas relief for a man convicted of clubbing a coworker to death. I worked with Judge Carnes on the Criminal Rules Advisory Committee, and I think the sort of Nixon-to-China credibility such a dissent brings will not be lost on the members of the Court, and in particular, the Eleventh Circuit’s last Circuit Justice, Anthony M. Kennedy.

Finally, there is a reasonable argument for people who favor granting Jefferson relief to say that existing law requires you to have a decent tactical reason for not investigating reasonably available mitigating evidence, and a reviewing court simply can’t assume that the proffered tactical reason was adequate. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003), and even the Court’s summary reversal of the Eleventh Circuit on ineffective assistance grounds from earlier this Term, Porter v. McCollum, 130 S. Ct. 447 (2009). Counsel’s desire to focus on a “residual doubt” defense that is not plainly inconsistent with the mitigating evidence does not self-evidently fall into that category–particularly when counsel appeared to concede Jefferson had struck the victim.

As demonstrated by the Eleventh Circuit majority’s 50-odd page decision on the ineffective assistance issue demonstrates, there’s enough to be said for the state’s position that it is not beyond the pale to conclude that Justice Scalia (who dissented in Wiggins) is even now tapping out a dissent (or, in the less-likely case that it’s a dissent from denial of cert, a concurrence).  We’ll see; nothing is harder to predict than the future.