Blackston: Habeas Corpus Is Not Dead Yet, But On Life Support

Dec. 2, 2015 (Mimesis Law) — The Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The text sets forth rights that those accused of crimes “shall enjoy.” They are designed to ensure that the weight of the government shall not oppress. Pared to their essence, the protections of the Sixth Amendment provide that criminal cases should be decided by the Rule of Law rather than the Law of Rule.

But even before the Amendments, there was this in Article I, Section 9, Clause 2 of the Constitution’s text.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The Great Writ, as it’s frequently called, is supposed to be the guarantor of a fair trial, the ultimate check on the Law of Rule. Any person being unlawfully held or sentenced may petition a court for a writ to force the government to prove that what it has done is proper. That it has obeyed the Rule of Law and not adverted to the Law of Rule.

But oh, how fragile. Even when it works.

* * *

Charles Miller was killed in 1988. In 1999, his body was found. In 2000, Junior Fred Blackston was charged with his murder.

Blackston was tried and convicted. Twice.[1] No physical evidence pointed to Blackston. Rather, he was convicted based on the testimony of five witnesses. Before the second trial, two of them recanted. In writing.

Before the second trial was held, two of the state’s key witnesses recanted their testimony. Because those witnesses were later determined to be unavailable at the new trial, the court ordered their earlier testimony read to the jury, while at the same time denying Blackston the right to impeach their testimony with evidence of their subsequent recantations.

Blackston asked the judge to give him yet another trial. The recantations, he said, should have been put before the jury. The judge said no. Oh, maybe they were admissible, but it wouldn’t be fair to the government to let the jury know that its witnesses claimed that the testimony they’d given before, the testimony the jury heard, was lies.

On appeal, the case bounced back and forth between Michigan’s intermediate appellate court and its supreme court. In 2008, the Michigan supremes were done. They said it was right to keep the jury in the dark. Anyway, and even if it was wrong, hey, so what? Blackston would probably have been convicted anyway.

Let’s review. Miller had been dead for 20 years. Blackston, who insists he was innocent, was charged with the killing in 2000. He was first convicted in 2001 based exclusively on testimony from five witnesses, all of whom had reason to lie and two who eventually recanted. He had an alibi and witnesses supporting it. He’d been up and down the Michigan court system. And he was done.

Clarence Earl Gideon had no lawyer when he wrote his petition to the Supreme Court, the one that gave nearly all the accused the right to counsel, in pencil.

Junior Fred Blackston had no lawyer any more. What Gideon got him was done. He wrote his own habeas petition. He litigated it himself.

At the end of the year, in December 2012, going on 5 years after Michigan was done with him, he won. Federal judge Arthur Tarnow granted Blackston relief.

The Court has determined that Petitioner’s Sixth Amendment right of confrontation and his Fourteenth Amendment right to due process were violated by the trial court’s refusal to permit Petitioner to impeach the prior testimony of two key prosecution witnesses with their recanting statements.

Give him a new trial, the judge said, a fair trial this time, or cut him loose.

Michigan, of course, appealed. And Blackston got a lawyer. Who won. By a thread.

In a careful opinion by Judge Daughtrey, the Sixth Circuit Court of Appeals said that the Michigan Supreme Court was not just wrong but grossly wrong. That clear precedent from the U.S. Supreme Court said that Blackston’s Sixth Amendment right to confront the witnesses against him trumped Michigan’s right to keep him in prison for the hell of it.

As I said, it was a win by a thread, a 2-1 decision. Judge Kethledge agreed with most of what Daughtrey said. But it wasn’t enough. Oh, sure, maybe Blackston’s rights were violated. Maybe the Michigan courts trashed the 6th Amendment. But

The problem with that claim, at least on habeas review, is that not a single Supreme Court case holds that the Confrontation Clause guarantees any right to admit evidence, extrinsic or not, at trial.

That was February this year. Blackston had spent some 14 years in custody for a crime he insists he did not commit. He’d won his own case in federal court. And now, now, finally, he’d get a chance at a new . . . .

Oops. Not so fast.

Michigan took him to Washington. Save us, save us, they said. Monday, the Supremes refused, as usual without explanation, to hear their appeal.

But if there was no explanation from those who would not hear the appeal, there was dissent from those who would. It takes but four votes for the Supreme Court to agree to hear a case. Michigan could muster only three. Scalia, Thomas, and Alito wanted a chance to ensure that Junior Fred Blackston wouldn’t get another chance.

My god, they wrote, the future of the republic!

OK, they didn’t say that. Here’s what they did say. (Scalia wrote, the other’s joined.)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal courts from granting habeas relief unless the state court’s decision “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.”

Got that? Habeas today has nothing to do with fairness or the Rule of Law. It has to do with a technical question of whether the Supreme Court happens to have clearly spoken on the question. And, if so, whether its clear statement was unreasonably applied. It’s OK to get it wrong. Just not egregiously wrong. After all, we’re dealing with people convicted of crimes. With criminals.

This has nothing to do with fairness. It’s the damn rules.

There may well be a plausible argument why the recantations ought to have been admitted under state law. But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law.

Or as Judge Marcus D. Gordon of Scott County, Mississippi said explaining why he lets poor people charged with crimes sit in jail “for as long as a year” without formal charges and before appointing them lawyers,

The criminal system is a system of criminals. Sure, their rights are violated. That’s the hardship of the criminal system.

Still, Blackston gets a shot. After 15 years.

Pat yourself on the back. Habeas corpus lives. The Rule of Law.

Albeit on life support.

[1] The judge reversed the conviction after the first trial because he’d given the jury inaccurate information about the deal the state gave one of its key witnesses.

Main image via Flickr/Dazzie D.

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