The other side of Landrigan

In order to be fair, I want to present the opposing argument to my opinion of the Landrigan case. Over at "Crime and Consequences" (a blog sponsored by the conservative Criminal Justice Legal Foundation, which describes itself as "an organization advocating reduced rights for accused and convicted criminals"), they have a post arguing in favor of the Court's decision. The argument is basically that the District Court was correct to defer to the state trial court's factual finding that defendant waived all mitigating evidence. Or, to put it differently:

It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.

So, "the record" (i.e. defendant's remarks such as "bring it on" regarding the death penalty and his refusal to allow mitigating evidence) disproves defendant's claim that his attorney was incompetent. However, the mitigating evidence that defendant waived was only the testimony of his mother and ex-wife. To suggest that he waived all mitigating evidence is flawed logic. He was not aware of his mental condition; he could not have waived evidence that he had no knowledge of. But, of course, opponents will argue against the mental illness defense anyway:

It is disappointing that the dissent got four votes in this case. Apparently, four Justices were actually impressed with Landrigan's far-fetched psychological argument. There are enough psychologists and psychiatrists in America who are viscerally opposed to the death penalty that it is likely every inmate on death row can find one who will swear he has some kind of serious mental problem. If that were enough to brush aside all the limits Congress has placed on relitigation, then it would never be possible to have an effective death penalty. That is, of course, exactly what the opponents want.

The dissent in this case does not suggest that the dissenting justices are "impressed" by Landrigan's argument. It simply suggests that they think the argument deserves to be considered in court. Yes, I think the dissent does ultimately represent an opposition to the death penalty more broadly, but it also represents a desire to see all relevant evidence presented before a court of law. It is possible that such mitigating evidence could have affected the sentencing, and I think that shows that it deserves to be considered.

More on Landrigan

Please read Linda Greenhouse's article about the Shriro v. Landrigan decision over at the Times. She is excellent. I want her job.

Anyway, after reading that, I was reminded of something I left out of my last post: the Alito factor. This case probably would not have gone the way it did if O'Connor was still on the Court. Indeed, a case a few years ago entitled Rompilla v. Beard had O'Connor siding with the liberals in a very similar case involving the constitutional right of death-row inmates to be represented by competent attorneys. Interestingly enough, Alito, in his capacity as an appeals court judge at the time, actually wrote the opinion that O'Connor helped to reverse in Rompilla. So, it seems that the Court is shifting noticably to the right thanks to Alito.

On Schriro v. Landrigan

Ah, another 5-4 decision.

Schriro v. Landrigan explores an interesting question. It has been established by Supreme Court precedent that defendants sentenced to death are entitled to an appeal if they can sufficiently prove that their attorney did not defend them properly. However, in this case, the defendant refused to allow his attorney to present mitigating information (in this case, testimony from his mother and his ex-wife) and even challenged the court to "bring on" the death penalty. However, after learning about a long-standing mental illness that his attorney did not discover, the defendant sought an evidentiary hearing claiming that he was improperly represented by his attorney. The District Court Judge refused to grant a hearing, based on the defendant's actions at trial. However, the Court of Appeals reversed, arguing that the attorney did not investigate at a constitutionally sufficient level (the attorney did not uncover or present evidence of the aforementioned psychological illness that could help explain defendant's actions). The Supreme Court reverses, arguing that even if the attorney had uncovered evidence of this illness, defendant would have refused to allow such evidence to be presented. As one might expect, the Court divided along ideological lines, with Thomas writing the majority opinion and joined by Roberts, Scalia, Kennedy, and Alito and with Stevens writing the minority opinion and joined by Souter, Ginsburg, and Breyer.

At first reading, I sided with the majority, but upon deeper reflection, I return to my liberal roots and side with the minority. I think this ruling harms the administration of justice. The fact of the matter is that this defendant wants to present new evidence that his attorney was too incompetent to uncover. Even the majority admits that the attorney was incompetent to not find evidence of mental illness. But, the majority bases its opinion on hypotheticals: the defendant "would have" refused to allow such evidence to be presented. We can't know that for sure, and after all, it seems like the defendant explicitly wants such information to be presented. If the defendant had been confronted with the fact that he had suffered from a mental illness, he may very well have been willing to allow such information to be presented at trial. Or maybe not. But the point is that we can't know for sure. And the Supreme Court shouldn't be basing opinions on "maybes."

If the only mitigating evidence had been the testimony of defendant's mother and ex-wife (the evidence that he explicitly refused to have presented), I would agree with the ruling entirely. However, there was other (perhaps more persuasive) mitigating evidence that the attorney did not uncover. Such a failure of investigation would not stand up to the scrutiny of Supreme Court precedent. The attorney clearly did a constitutionally insufficient job here. But, the Supreme Court is basically saying "That's okay, because the defendant let him get away with it, even though he didn't know the extent of his attorney's incompetence."

The fact of the matter is this: the defendant never said that the attorney should not present evidence of mental illness (indeed, neither the attorney nor the defendant knew about it at the time), and the Supreme Court is acting out of line to play the role of psychic, predicting what defendant would have done. It seems blatantly obvious that the defendant does want such information presented, and I think he is entitled to an evidentiary hearing to investigate the incompetence of his attorney. Really, I think this decision just represents a fundamental split over the death penalty more broadly. The majority wants it to be easier to administer, and the minority wants it to be harder to administer. Me? I'm all for the death penalty, but not when there is evidence left unexplored. This evidence deserves to see the light of day, and this attorney's incompetence should be exposed.