In the wake of bombings in the 1990s at the World Trade Center and the Oklahoma City federal building, Congress passed a wide-ranging “effective death penalty” law. One provision was especially contentious: It restricted the ability of federal courts to intervene in state criminal cases.
Nearly 20 years later, Supreme Court interpretations of the law have robbed federal judges of much of their power to overturn convictions obtained in state court, where the vast majority of criminal defendants are tried. Long considered a safety valve for the unjustly convicted, federal courts are now barred by legal rules from second-guessing state judges in all but the most extreme cases.
The tensions stirred by the law are increasingly visible on the U.S. 9th Circuit Court of Appeals, which hears state cases from the West. Time after time, 9th Circuit judges find fault with decisions by the California courts, where judges appear on the ballot and often struggle under crushing caseloads.
But the federal jurists are restrained by the law from acting.
“We now have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted,” 9th Circuit Judge Alex Kozinski, a Reagan appointee, wrote in June in a Georgetown law review.
The 1996 Antiterrorism and Effective Death Penalty Act limited the ability of inmates to prevail in federal habeas corpus challenges, the legal means prisoners use to contest their confinement.
“The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era,” 9th Circuit Judge Stephen R. Reinhardt, a Carter appointee, wrote in a Michigan law review.
“Once hailed as the Great Writ,” Reinhardt wrote, habeas corpus has been transformed over the last two decades “from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution.”
Judges on other circuits also have complained about the law. “The Great Writ is dead in this country,” Judge James C. Hill, a Ford appointee on the Atlanta-based 11th Circuit, wrote in a 2011 dissent.
Federal judges felt differently about the law when it was passed, said Loyola Law professor Laurie Levenson.
“Now the pendulum has swung the other way, and there are some very serious cases that are not being dealt with because Congress has tied their hands,” Levenson said.
The law “has taken the federal courts out of the business of habeas corpus,” said California Court of Appeal Justice J. Anthony Kline, a Gov. Jerry Brown appointee who has served more than three decades on the court.
Kozinski has called for its repeal.
“By and large, state judges do a good job,” Kozinski said in an interview. “But we tend to see some of the extreme cases, and everyone makes mistakes. It is so frustrating to see mistakes and not be able to correct them.”
Under the new rules, federal judges may not overturn a state court decision that is merely incorrect. The state ruling must also be unreasonable, “so lacking in justification that there was an error well understood … beyond any possibility for fair-minded disagreement,” the Supreme Court has said.
This required deference means state courts increasingly have the final say.
Some law-and-order groups — and conservatives on the 9th Circuit — see the restrictions as a valuable correction. The California Supreme Court should have the last word because the justices serve at the will of the voters, said Kent Scheidegger, a director of the pro-death penalty Criminal Justice Legal Foundation.
“We can’t get rid of Reinhardt,” Scheidegger said. “We got rid of Rose Bird.”
Voters ousted the late California chief justice and two liberal colleagues in 1986 after a campaign that focused on the death penalty. Bird never voted for a death sentence. Reinhardt, in an interview, could not recall a death sentence he has voted to confirm in his nearly four decades on the 9th Circuit.
“State judges don’t have the same freedom,” Reinhardt said.
State courts have long upheld criminal verdicts and sentences with the knowledge that a later federal review would be a safety net for the wrongfully convicted, Reinhardt said. Now that the safety net is largely gone, some state judges are calling for closer examination of criminal cases.
Justice Goodwin Liu, a former UC Berkeley law professor appointed by Brown to the state’s highest court, has been trying to push his colleagues to examine trial mistakes more carefully. He has complained in dissents that the California court is out of the norm in upholding so many criminal convictions tainted by legal errors at trial and possible racial bias in jury selection.
Kline, who serves on a San Francisco-based state appeals court, agreed that California courts rely heavily on rules that permit them to uphold verdicts if they believe trial errors — such as admitting evidence that should have been barred — did not affect the outcome of a case.
“What is happening in the judicial system is we are becoming more interested in disposing of cases than we are of adjudicating them,” Kline said.
In close cases, state judges are more likely than their federal counterparts to rule against criminal defendants and other unpopular litigants, said NYU Law professor Burt Neuborne. Federal judges have lifetime tenure and cannot be recalled for an impolitic decision.
When the law is unclear, “state judges will tilt more toward the prosecution,” Neuborne said. “They have a tendency in hard cases to be more politically responsive.”
The consternation of the 9th Circuit was evident in a California decision in July. George Gage was convicted of molesting his former stepdaughter when he was married to her mother. The young woman made the charge years after the couple divorced.
The first trial ended in a hung jury, 10 to 1 for conviction. Gage, protesting his innocence, refused to accept a plea bargain that would have released him in about five years. A second jury convicted him.
The Los Angeles judge who presided over Gage’s trial had doubts about the jury verdict. She reviewed the victim’s mental health records and learned that the mother had described her daughter as a “pathological liar.” The judge ordered a new trial, but a state appeals court overturned the decision. Another judge sentenced Gage to 70 years in prison.
Gage, 76, is at San Quentin. “I have interviewed Mr. Gage face to face, and there is no question in my mind … that Mr. Gage is in fact innocent of the charges,” Tony Faryar Farmani, Gage’s lawyer, told the 9th Circuit during a hearing.
After listening to a prosecutor’s arguments, 9th Circuit Judge Dorothy W. Nelson declared: “None of this gives me more confidence that the conviction is valid.”
Still, the panel unanimously rejected Gage’s attempt to challenge his conviction. Judge A. Wallace Tashima said the court was “disturbed” that the state had failed to produce the medical records to help the court determine Gage’s possible innocence. But even if Gage were innocent, rules barring successive habeas challenges prevented the panel from intervening, Tashima said.
“We cannot ignore the Supreme Court’s clear teaching,” wrote Tashima, a Clinton appointee.
The Supreme Court has often used scolding language to slap down 9th Circuit judges who overturn state convictions. Some 9th Circuit judges take the rejections in stride. Others dread the possibility of being overturned.
For the latter, “it takes a lot of courage to grant habeas given the likely reversal,” said 9th Circuit Judge Kim McLane Wardlaw, a Clinton appointee.
“When we do grant habeas — and it is typically an extraordinary case — even then it is likely to be reversed by the Supreme Court,” she said.
But the Supreme Court has limited time and cannot consider every federal appeals court decision it dislikes. Though restricted, some 9th Circuit panels decide inmate appeals have met the high hurdles set by the Supreme Court.
In one such case, a three-judge panel ruled last month in favor of an inmate who was 15 when he was interrogated at length by Riverside police and given a polygraph test before being read his rights. The teenager received a 50-year sentence for a 2006 gang killing. A panel of two Republican appointees and one Democrat ordered California to release or retry the inmate, a decision that could be appealed all the way to the Supreme Court.
Though many 9th Circuit judges chafe under the 1996 law’s restrictions, some say they have no problem deferring to state courts.
“Federal courts should resist the temptation to retry state court cases,” said 9th Circuit Judge Diarmurid O’Scannlain, a Reagan appointee.
The most recent rebuke to the 9th Circuit came in June, when the Supreme Court overturned a ruling written by Reinhardt.
Hector Ayala, convicted of a 1985 triple murder during the robbery of an auto body shop in San Diego, appealed on the grounds that a prosecutor at his trial struck all the African American and Latino prospective jurors. When the defense objected, the judge allowed the prosecutor to explain his reasons privately and accepted them. Under the Constitution, race may not be considered in picking a jury.
The California Supreme Court upheld the verdict 15 years ago in a 5-2 decision. Retired Chief Justice Ronald M. George, joined by another Republican appointee, dissented, calling the majority decision “an unprecedented conclusion” that allowed the defense to be excluded from “a crucial portion of jury selection.”
In a 5-4 decision, the Supreme Court chided the 9th Circuit for interfering so many years after the conviction and failing to follow the California Supreme Court decision.
“We can reverse almost nothing these days,” Reinhardt said.