Now That's an Angry Dissent:
The Sixth Circuit is well-known for its ideological divides and sometimes-nasty dissents in habeas cases, but the dissent in Tucker v. Palmer last week from Judge Damon Keith seems to set a new standard. The issue in the case was whether under the deferential AEDPA standard, the state court had unreasonably determined that there was sufficient evidence to uphold the verdict in a state burglary case. The majority concluded that under the doubly-deferential standard, the evidence was sufficient for the state court to have upheld the verdict. Judge Keith disagreed. Here's how he began his dissent:
Thanks to Steven Wells for the link.
The majority's opinion flagrantly violates the Fourteenth Amendment. I therefore vehemently DISSENT. It is “[b]etter that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries at 358. This powerful and wise axiom reveals that a court commits the ultimate injustice by convicting and imprisoning a person based on insufficient evidence. Such a judicial transgression contravenes the most important right our Constitution affords the accused: “the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); U.S. Const. Amend. XIV, § 1. Apparently neither the state trial judge nor the majority ever read or understood the Constitution, for in the instant matter, they recklessly disregarded this fundamental requirement of proof beyond a reasonable doubt by convicting Defendant Raymond Tucker of home invasion without any evidence sufficient to prove his guilt.Wow. There's nasty, and then there's "accusing the other judges of never having read or understood the Constitution" nasty. In case you're wondering, the majority opinion was by Senior District Judge Harold Ackerman, a Carter appointee to the District of New Jersey, joined by Jeff Sutton, who as many readers know was a Bush 43 appointee to the Sixth Circuit.
Thanks to Steven Wells for the link.
It seems too puerile to qualify as nasty. I don't think I've ever seen anything like it in a federal appellate opinion.
Odd usage of vehement to describe oneself; vehemence is normally only attributed to others. This follows another similar misusage in recent days: "I'm outraged". Used to be you could be described as outraged only by others. Someone thought they could pump up their volume by saying of themself they're outraged, and that usage caught on with women's and other identity advocacy groups. Next week: I take on "it's unacceptable."
Odd usage of vehement to describe oneself; vehemence is normally only attributed to others. This follows another similar misusage in recent days: "I'm outraged". Used to be you could be described as outraged only by others. Someone thought they could pump up their volume by saying of themself they're outraged, and that usage caught on with women's and other identity advocacy groups. Next week: I take on "it's unacceptable."
The legal blog world definitely needs a new Robert Loblaw.
Judge Keith's dissent does seem a bit over the top, though I have no doubt he feels that this case is a profound miscarriage of justice.
Was Tucker guilty? Without reading the actual trial transcripts, I have absolutely no idea.
That said, I would argue that even though this was a liberal judge (or a judge arguing for a "liberal" result) doing this, a lot of conservatives bear some responsibility for this sort of rhetoric. For political reasons, they have described their method of interpretation as the ONLY possibly correct one, and described their opponents as not only wrong on the merits but of not even caring what the Constitution says. It's been going on for years, and it's poisonous.
If past conservative rhetoric bears some responsibility for this liberal rhetoric, then doesn't past liberal rhetoric bear some responsibility for the past conservative rhetoric? And I guess it's turtles all the way down.
I don't think so. While individual liberals certainly have bashed on conservative judging (and often properly so), there hasn't been a movement to paint conservative judges as making up the law and not caring about what the Constitution says.
In contrast, every conservative talk show host and politician in America lobs that slander at liberals.
I agree this judge's rhetoric is horrible and makes Scalia look like a piker.
I am just saying that we live in a world where the conservative movement has decided that they way to win elections on the judicial appointments issue is to continuously slander liberals as not caring about what the law actually says and making up whatever they want to be the law. And in that world, the rhetorical ante has been upped and not in a good way.
Nick
You seem quite confident in your personal sense of cause and effect. I vehemently DISSENT.
Have you picked up a law review recently? If so, I'm guessing the articles said that conservative judges made up the law and didn't care what the Constitution says. Of course, you may believe that talk radio must hold it self to higher standards than tenured professors.
I'm curious -- in your view, gIven the standard of review, what was the correct outcome? It's a weak case, yes, but then AEDPA and sufficiency challenges require the courts to uphold a lot of weak cases.
You are equating what some liberal law professors are arguing (in law reviews and supported with citations to authority) with a talking point that has been adopted by the conservative movement and is spread to the general public (20 million people listen to Rush Limbaugh alone), unsupported by any authority and in fact untrue.
They don't equate.
I think the case is more than weak. The trial court's inferences were unreasonable.
Let's look at the two pieces of evidence: The defendant jumped the fence, and the back door was open. How does either establish, beyond a reasonable doubt, that the defendant entered the home?
Let's even couch the question in AEDPA terms: Is it not unreasonable to suggest that an open door and jumped fence establishes unlawful entry beyond a reasonable doubt?
It's one thing to say that an open door and jumped fence might establish entry. I can actually buy into that reasoning in an informal sense. If I saw a kid jump my fence, and a door I thought I shut was opened, I'd keep an eye out on the kid. I might even say there are 50-50 odds that the kid entered my house.
But that's far away from proof beyond a reasonable doubt.
I understand the dissent's frustration. The current view of the AEDPA is that every state court verdict, no matter how ridiculous, must be affirmed. But the AEDPA only requires deference. There is plenty of play in the joints.
In this case, no rational trier of fact could have found unlawful entry beyond a reasonable doubt. Thus, even under the AEDPA, the lower court's ruling could not stand.
Maybe the court should've pretended that it was an insurance company jumping the fence. In that case, he might've found that not even a preponderance supported the prosecution's case.
I've recently found it tremendously hard to have discussions with you, so maybe I'm not being sensible by responding further. But these talking points are universal on both sides: see the confirmation debates over Roberts and Alito. It is true that Rush Limbaugh has more listeners than law reviews have readers, but you haven't explained why that should matter:the point is that this is a nearly universal talking point, certainly what I hear everyday from both sides in the debate with near mirror opposites of each other.
That, of course, is the attitude that leads to wrongful convictions. Find someone who has a bad rep (deserved or not) or who has a prior conviction, and pin a crime on him.
It seems to me you're both right. You're just arguing different points. Dilan's point seems to be that the "liberal activists" meme is most popular in the general public. You're arguing that it's actually very popular in the law reviews to call conservative judges activists. When two people are right, but are arguing different points, it's impossible to have a discussion.
Then write a Chicago-style "law &economics" article about how, given the odds that a prior offender needs to be locked up anyway, the result is economically sound.
In my humble opinion, which I think is widely shared, one is more likely to get a highly unexpected verdict in a jury trial than a bench trial. So if you have a very strong case (as the defendant seems to have had here), and the judge has a good reputation, then it can be a good decision to opt for a bench trial.
I agree that the judge's decision doesn't seem to make much sense, but many jury verdicts are no better.
Just do a Lexis-Nexis search using variants of [liberal /p /p jud! activis!] and [conservative /p jud! /p activs!]. Then compare the search results.
The number of hits would determine the issue - at least as regards to the popular/mainstream press.
AEDPA does require the courts to uphold weak cases. But does this extend to cases where the conviction could not conceivably have been supported by the evidence?
Agreed; also, while Dilan is flogging the horse a bit more than I would, his original claim -- "bear some responsibility" -- is too weak to be false.
Not to get too side-tracked, but I'm not arguing that this is just a point in the law reviews; It seems to me that it is the mainstay of liberal discussion of conservative legal thought, from Democratic senators to the ACS to Slate.com. I just picked the law reviews as an example because it seemed amusing to compare Rush Limbaugh and law professors.
I thought I explained it.
1. Claims in legal scholarship are made with citations to authority. If / when a conservative says that particular decisions were wrong and says why they were wrong, I can respond to that argument. On the other hand, "liberal judges don't care what the law is" is a generality that can't be responded to.
2. Claims made by movement conservatives reach a bigger audience. Even if we assume that liberal scholars are making some false or misleading claims about conservative judges, they aren't making it to 20 million people. In contrast, not only are these claims made about liberals by talk radio types AND conservative politicians, but in my experience, ordinary conservatives believe them. In other words, I have met people who have never read a judicial opinion in their life but who are convinced that conservative judges apply the law faithfully and liberals make it up. I have seen such people comment in this very site's comments threads.
All my adult life, I have watched conservatives in the media and politics effectively slander liberal judges as a bunch of unprincipled dictators who impose their will on the public without regard to the content of the law. It's false, but people believe it. It's a huge, successful lie, and it distorts public policy debates. Is it any wonder that I am a little bit more upset about this than I am about the claims of some liberal law professors in law review articles?
3. This may be personal, and I don't expect you to necessarily agree with me, but I really have an aversion to political talking points-- including even those I agree with. In other words, when a conservative says "Roe v. Wade is wrongly decided because whatever you think about abortion, the due process clause of the constitution wasn't intended to protect a right to have one", I may or may not agree with it, but I think that's a perfectly legitimate, thoughtful, potentially persuasive, reasoned argument.
On the other hand, when I read "you liberals don't care about what the law says, you just write your policy preferences into law", I get upset not only because it is false and because so many people who don't know any better believe it, but also because it's the worst kind of focus-grouped oversimplification of an issue.
In a sense, when you ask what the difference is between claims made on law reviews and those made on talk radio, you are missing this entire point. It's the difference between treating an issue seriously and treating it as a slogan.
I don't like slogans to begin with, but this particular one has had a particularly pernicious effect on public discourse by painting liberal judges as a bunch of dictators with robes on, when in fact the debates between liberal and conservative judging go far beyond and have little to do with the simplistic slogan about "following the law as written" vs. "writing one's personal preferences into law".
Even this seems narrower than Esper's claim. Esper seems to suggest that "liberal activism" is a meme throughout all of society. It's dinner table discussion for conservatives. Is "conservative judicial activism" dinner table discussion for the average liberal?
Within the context of judges, I usually think of liberals talking about conservative judges being outside of the "mainstream." Not much about activism, though. Outside of Balkin's blog, I don't even see much in the blogosphere about conservative judicial activism.
That said, a few minutes with "all news" (or whatever it's called) in Lexis-Nexis or Westlaw should answer resolve the issue of how popular the conservative activism meme really is.
I'm curious, what are your thoughts on how the New York Times editorial page (which reaches millions of people) covers conservative legal decisions?
No. I'm running out of time, so this will be sloppy. Excuse me.
1. AEDPA prevents judges from granting habeas unless the state court acted unreasonably, in light of cleary established federal law.
2. There is clearly established federal law stating due process requires that a defendant may only be convicted when there is beyond a reasonable doubt.
3. The defendant was convicted under a standard below beyond a reasonable doubt. Maybe he entered the home. But no rational person could say, beyond a reasonable doubt, that he dis so.
4. Hence, even under the AEDPA, habeas should have been granted.
I don't like it. In fact, I think most of the mainstream media basically covers the Supreme Court as a policy debating society rather than as a legal tribunal.
But while it may "reach millions", I would argue that for all my problems with the New York Times, it isn't nearly as effective in misleading its audience, because there's nothing comparable in its readership to the millions of dittoheads who repeat the talking point that liberal udges make up the law.
I really don't think there is any lie or falsehood about the American judiciary that is pervasive or pernicious than the one about liberals being the ones who don't care about what the law says and instead enacting their personal preferences by judicial fiat.
I've not found that knowing the identity of the appointing chief executive gives much insight into a specific decision. Actual prior decisions of that judge, absolutely.
Does the following strike you as "slander"?
- link
As of 1976 (when it was said), there was some truth to that statement as it applied to Supreme Court appointments, in that Democrats appointed Byron White and Thurgood Marshall and Abe Fortas and supported the Republican appointees Earl Warren and William Brennan.
As of now, that statement would be incorrect even in that respect, as more recent Democratic appointees have had long judicial careers.
In any event, it is a totally different issue from whether Democrats, once they get to the bench, "make up the law".
I disagree.
A chief assistant district attorney I used to work for once kiddingly said: "So what if we occasionally let a guilty man go free? We'll convict a few innocent men to make up for it."
Um, yes, yes there has. Read any history book that talks about the decisions of U.S. courts in the late 19th and early 20th centuries.
You see, the side that gets accused of imposing their policy preferences regardless of the law is the one that's ascendant. And though there has been some rowback recently (provoking the in-journal accusations against the conservatives), we're still in the post-FDR era of liberal judicial interpretation.
Wow, and the preachers at Ethical Culture try so hard. Seriously, you ought to attend some parents' cocktail parties at Ethical Culture or Rodeph Sholem.
This hyperbolic criticism is a bit embarrassing. It takes what should be a disagreement over the law and turns it into an undeserved ad hominem attack.
To me, the nub of the disagreement is the degree to which a federal court in habeas review should step on a state court's findings of fact. The majority's argument is rooted in principles of federalism and the strict standard of review (any rational trier of fact). The dissent argues that while the standard sets a high bar it is not insurmountable.
At the end of the day, I think the majority has the better argument. The controlling standard sets a very difficult hurdle to overcome on habeas review and is designed to discourage second guessing from federal courts. The dissent makes some good points (when not stooping to personal attacks), but this is not a case it can decide from scratch.
Orin = Right.
But then what do I know, I'm just a mind-numbed, dittohead robot.
Absent some special circumstances (Nifong) why would a prosecutor risk a frame up? I don't see that as a problem.
The accused prior record does bear on the probability of his guilt, how can anyone argue otherwise?
People believe it because those specific beliefs have penumbras, formed by emanations from those cases that serve as abject examples.
My main objection to his distemperate remarks is his characterization of the Due Process clause as "the most important right our Constitution affords the accused." Basically, he's accusing the trial court and the appellate court of denying the defendant a fair trial, which is a pretty subjective judgment. I'm not sure you can break down the elements of the Constitution into separate distinct units and then rank them.
I've thought for a long time that the purposes stated in the Preamble have been given a lesser status by the courts, resulting in a undue emphasis on the Bill of Rights and the rights of criminal defendants vis-à-vis the rest of us, particularly the victims. If you include the Declaration, I'd say the Right to Life is right up there along with Liberty. Those rights are the reason fairness to defendants is so essential. It stems from them.
While we'd always like to have multiple witnesses, we convict based on one witness all the time. If it were rape, I'm thinking that good liberals would be less squeamish about that notion.But knew the guy, and the guy passed within six feet of him anyway.And? What's the significance of that last point?
You're applying the same wrong standard as Keith; you're supposed to look at the evidence in the light most favorable to the prosecution, not the defendant.
No matter how hard I squint at my copy of the constitution I don't see any right to abortion, nor indeed any hint the framers and subsequent amenders intended those kinds of questions to be decided at the federal level at all, let alone by the judiciary.
And how about that commerce clause? Is there any action by Congress that doesn't fit through that gaping hole?
I don't see how any thoughtful person could take such an argument seriously, although I appreciate its emotional appeal.
Meaning what? Easy to understand? Readable? accessible to the layman? Succinct? I solicit comments from anybody who has never had a similar thought when reading a brief. I expect most of us (layman at least) have had similar thoughts. Or somthing like:
"Outvoted."
"No, no. I vehemently dissent."
"Oh. You vehemently dissent. Then I'll take some time and reconsider."
cf A Few Good Men
That explains (in a way nothing else can) the absolute opposition to reversing the outcome of a trial sometimes even in the face of incontrovertible evidence.
There's a tactical point here. What is Keith hoping to achieve with this dissent? That he's going to attract votes to his side down the road someday? I don't get it, just like I don't get Scalia's mocking of O'Connor and Kennedy. Is it just because they can't help themselves?
So both of these guys must be conservatives slandering liberals. Glad to know that.
"Do what is right and let the law catch up"
Justice Thurgood Marshall
"[The Supreme Court] is a totally different ball game. ... A circuit court judge is bound by stare decisis. They don't get to make new law."
Senator Joe Biden
1. AEDPA prevents judges from granting habeas unless the state court acted unreasonably, in light of cleary established federal law.
2. There is clearly established federal law stating due process requires that a defendant may only be convicted when there is beyond a reasonable doubt.
3. The defendant was convicted under a standard below beyond a reasonable doubt. Maybe he entered the home. But no rational person could say, beyond a reasonable doubt, that he dis so.
4. Hence, even under the AEDPA, habeas should have been granted.
This is an incorrect statement of the law -- among other things, it omits the double deference due under AEDPA. Jackson v. Virginia supplies the first level of deference: the verdict cannot be reversed for insufficient evidence unless no rational trier of fact would have found the defendant guilty beyond a reasonable doubt, viewing all evidence in favor of the prosecution. AEDPA then supplies the second level of deference: the state court's decision cannot be reversed unless the state court unreasonably applied Supreme Court law (here, Jackson v. Virginia) to the facts of the case. Thus, in this case, the test was something like: did the state court unreasonably determine that no rational trier of fact could find the defendant guilty beyond a reasonable doubt, viewing all evidence in favor of the prosecution?
Of course, it's difficult to assess what practical effect, if any, AEDPA has in cases governed by Jackson v. Virginia, given that the standard is only met in egregious cases.
Academics and scholars discussing how wrong and out of tough conservative justices are amongst ourselves and in out professional journals is one thing, since, after all, we are the professionals and know best. But open discussion of liberal justices approach to the law (and especially Constitutional reading) among the public, especially when engaged in by popular personalities, is simply gauche. Don't they know their place? How can those plebians' opinions on judicial review or the Constitution possibly have any value or importance?
/bad humor> Incidentally, in the spirit of Judge Keith and/or Dan Ackroyd, I have to point out that Professor Kerr left out an important phrase in one of his comments above: /bad humor off>
Heck, I don't even need that -- all I've got to do is believe that Sutliff isn't mistaken when he says he saw Tucker leaping over the fence in the direction that he did, and that he recognized him, to think it more than a little likely that Tucker committed the crime, as described in the law.
What the heck else would he be doing leaping over Sutliff's fence? Is he filling his time on parole with recreational fence jumping? Maybe Sutliff's wrong (or making stuff up) about the missing property; as long as Tucker went into the house for a criminal purpose, he committed the crime, even if (say, hypothetically), he heard Sutliff coming back home and fled.
So, sure -- he did it.
But let me back up a second. Since I'm not lawyer -- nor an appellate court judge -- I'm allowed to do that. (So are y'all, actually.) Isn't there something fundamentally upgefuckt about putting a guy (even, say, a jerk who already had a criminal record) in prison for seven to fifteen years on evidence of wrongdoing that's this weak?
Isn't there something fundamentally wrong with the majority upholding -- in the less inflammatory, albeit not much, language of the dissent -- the "outrageous and unbelievable finding that Tucker is the 'person he saw' entering the house" when, well, Sutliff never said he saw Tucker enter, exit, or inside the house?
I'm not proud of it, but it took me about 3 seconds to decide not to let that guy back out on the streets. Ever. I didn't get selected for the jury, but I couldn't have been alone because that guy got a big, fat guilty.
One of the nicest, best-spoken people I know is one of my local self-defense activists, a fellow named Bruce Krafft. He's 6'4", with a shaved head, long red beard, and has a tendency to scowl when he's thinking something through. By profession, he's a mildly disgruntled postal worker.
Heaven help him if he's ever accused of a crime...
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