The Political Spectrum

I have only read about half of this article, from tomorrow's NYTimes. It reports the Supreme Court's "growing impatience" with the state's Court of Criminal Appeals, and the Fifth Circuit. Here's another perspective.

First, the Fifth Circuit doesn't get first shot at federal habeas petitions; they pass through the district courts, which make plausible findings of fact that are often difficult to get around. (Instead of seeing how many times the Fifth Circuit affirms a denial of habeas relief, it would be instructive to see how seldom the court reverses a grant of habeas relief.)

Second, there are usually five or six reasons why any given habeas petition fails. If one of those can be affirmed, there is no reason to address any of the others. That's the reason why the Fifth Circuit often reaffirms denial of habeas on remand from the Court. (The Court reverses on one ground, but doesn't address the other reasons that require affirming the denial of relief.) The Supreme Court is in a position where it can engage in dicta to set death penalty law; the Fifth Circuit is not -- it actually must decide cases. I myself witnessed a case in which a Fifth Circuit opinion affirming a denial of habeas relief was reversed. The issue on which it was reversed was mentioned in one sentence in the brief to the Fifth Circuit; the issue was waived. (As a part of an efficient system of justice, intermediate courts must require appellants to raise and argue their issues. One sentence does not cut it.) Congress has relieved the Supreme Court from the burden of a backbreaking case load (certiorari being discretionary), so the Court is not faced with the consequences of its freewheeling approach to reaching appellate issues. The lower federal courts cannot be so freewheeling; the Supreme Court should realize this instead of being subject to "growing impatience."

Third, the Fifth Circuit is well aware of the doctrine of harmless error. It's in the Federal Rules, and the Supreme Court has relied on it.

Fourth, the Fifth Circuit is intimately aware that a trial is an important event, and a conviction (and death sentence) by a jury are not to be lightly ignored. Judgments have finality, and states must be able to rely on that finality. (This comment is more directed at the reason why the Fifth Circuit doesn't issue very many stays of execution; there is no virtue in interfering with a state's administration of capital punishment in order to permit another round of litigation that will produce the same result.)

Fifth, and here I am not relying on any experience at the Fifth Circuit, but solely my own impressions: The Court seems to think that execution of a factually innocent person is so bad that law can be juggled to prevent it (i.e., nullifying the finality of a valid judgment, as just stated). (Just as law can be juggled to prevent states from barring the killing of a factually innocent unborn person.) Well, I'm not sure that's the case. More importantly, the law already has a means of correcting convictions of innocent people: executive clemency. You can't distort the law's respect for finality just because you don't like the decision reached by the executive.