In the Supreme Court’s 1997-98 term, the American Bar Association continued its past record of taking the defendant’s side in every criminal case it entered. In August 1997, a special task force of the Federalist Society studied past terms since 1992 and found that the ABA had taken the defense side in every one of the "friend of the court" briefs it filed in that period. The full text of this report is available on the Internet at http://www.fed-soc.org/abarpt897.htm.

In Ohio Adult Parole Authority v. Woodard, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), a death-row inmate claimed that the state’s process for considering executive clemency was structured in a manner to deny him "due process of law." While no one disputes that the state executive should conduct these proceedings in a fair manner, the inmate’s request for federal court review raises delicate constitutional issues. The Constitution establishes two kinds of separation of powers - it separates federal from state and the three branches of the federal government from each other. Woodard’s claim crossed both lines. He asked the federal government to interfere with a core function of state government, and he asked the judiciary to interfere with a function that both the state and federal consitutions unambiguously assign to the discretion of the executive. As the Supreme Court had noted 17 years earlier in Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464 (1981), "Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review."

In addition to separation of powers concerns, an intrusive standard for judicial examination of clemency would add yet another subject for litigation to an already protracted system of justice. Defendants already are permitted to litigate the conduct of the police, the prosecutor, the trial judge, the jury commissioner, the jurors, the trial attorney, and the appellate attorney. After challenging every action of all these actors in the state court, then they litigate them all over again in federal court. In capital cases, justice goes unfulfilled while all these challenges are resolved. A decision for the inmate in Woodard would have added the governor and the board of pardons to this already overlong list, further delaying, and hence denying, justice.

The ABA’s brief in Woodard is stunningly oblivious to these considerations. The brief discusses the functions of counsel in clemency proceedings and then advocates a standard based on Evitts v. Lucey, 469 U.S. 387 (1985). Evitts was a case involving effective assistance of counsel on appeal, with no issues of interference with executive discretion. The ABA’s brief is devoid of any discussion of the separation of powers. It does not mention the victims of crime, their right to a reasonably timely resolution of the case, or the effect of piling one more layer of litigation on top of the stack. The brief appears to have been written by a person wearing blinders; it is devoted entirely to the inmate and his counsel and completely ignores the interests of everyone else involved.

Such a brief might be appropriate if submitted on behalf of a criminal defense organization, such as the National Association of Criminal Defense Lawyers (NACDL). The ABA, however, represents itself to be a broader organization. In the "Interest of Amicus" section, the brief states, "The ABA is a voluntary, national membership organization of the legal profession. Its more than 392,000 members, from each state, territory and the District of Columbia, include prosecutors, public defenders, private lawyers, trial and appellate judges from the state and federal courts, legislators, law professors, law enforcement and corrections personnel, law students and a number of ‘non-lawyer’ associates in allied fields." Reading this statement followed by the substantive portion of the brief leaves one wondering why this breadth of membership is not reflected in the brief. Were the prosecutors consulted about the impact of the ABA’s position on the enforcement of the judgments they have obtained? Were the corrections personnel consulted about the intrusion of the judiciary into executive decisions? Did the law professors have any input on whether the ABA position was consistent with the constitutional separation of powers? There is no evidence in the brief of any of these viewpoints.

The ABA’s other brief was filed in the case of Stewart v. Martinez-Villareal, No. 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). That case concerned the jurisdictional questions of whether a death-row inmate who has already had one federal habeas petition adjudicated and who had already been found mentally competent to be executed in state court could nonetheless file a second federal habeas petition on the competency issue. The ABA’s position on the bottom line, that such jurisdiction survives the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is not particularly offensive and was accepted by the high court in a 7-2 decision. What is more troubling is the argument submitted in support of this position.

Debates over history loom large in the habeas wars. The ABA’s brief in Martinez-Villareal did not merely take the defense side of that debate, but it took the most extreme version of the defense side. The brief argued that Congress has always provided for full de novo review in federal court of every constitutional claim by a state prisoner. Supporters of this view are apparently untroubled by the Supreme Court’s repeated, unequivocal statements to the contrary in the first half of this century. See, e.g., Goto v. Lane, 265 U.S. 393, 401-402 (1924); Ex parte Hawk, 321 U.S. 114, 118 (1944) (per curiam). This extreme argument is to be expected from an advocacy organization dedicated heart and soul to one side of the debate, such as the ACLU. To find it in the brief of an organization that claims to represent the whole bar is something else.

Equally noteworthy are those cases that ABA chose not to join. Calderon v. Ashmus, 140 L.Ed.2d 970 (1998) involved the question of whether California qualifies for the "fast track" procedures enacted by Congress in the AEDPA. With habeas petitions pending before dozens of federal judges in California, one judge took it upon himself to enjoin the Attorney General from arguing his position on this question before any court in the state. Suppose, hypothetically, a judge had ordered every criminal defendant in the state not to argue a debatable position on the application of the Miranda rule. The ABA would surely have protested vigorously about such an unprecedented violation of the rights of litigants to argue their position in the courts where their cases are pending. Yet an identical violation directed at the people draws not a peep from the ABA.

Similar silence from the ABA greeted the other judicial outrage of the term, Calderon v. Thompson, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Thompson had received a full review of his claims in both state and federal courts. The Ninth Circuit had denied habeas relief and denied rehearing en banc. The Supreme Court then denied certiorari. On application for executive clemency, the governor of the state thoroughly reviewed Thompson’s claim that he was actually innocent of rape, even though guilty of murder. The original trial judge, the person in the best position to evaluate all the evidence, concluded there was no doubt whatever of Thompson’s guilt on both counts. Then, on the eve of execution, the Ninth Circuit sua sponte recalled its mandate in this apparently final case to reconsider the merits of the panel decision. The excuse offered was that there had been an internal mistake in the court’s vote on rehearing en banc, but that mistake had been known to all the judges for months, well before the judgment had become final.

The Supreme Court reversed in unusually strong language, written by Justice Kennedy, a former Ninth Circuit judge. "The Court of Appeals for all practical purposes lay in wait while [the Supreme] Court acted on the petition for certiorari, the State scheduled a firm execution date for Thompson, and the Governor conducted an exhaustive clemency review. Then, only two days before Thompson was scheduled to be executed, the court came forward to recall the judgment on which the State, not to mention [the Supreme] Court had placed heavy reliance."

One would expect an organization dedicated to the rule of law to have strong objections to such cynical manipulation of judicial procedures. The silence of the ABA in these cases suggests a couple of unwritten rules: (1) file briefs on the prosecution side only where that side coincides with some interest of the political Left; and (2) never, under any circumstances, file on the prosecution side in a capital case. I have not found any case in recent history to contradict either of these rules. The ABA supported the prosecution on the independent counsel statute so long as the White House was in Republican hands, filing in Morrison v. Olson, 487 U.S. 654 (1988). Since January 20, 1993, the ABA has found virtue in the objections to that law which it had previously brushed aside.

For the daily work of criminal lawyers, though, the ABA has become a shill for the defense bar. Remove the cover and the "interest of amicus" sections from the briefs, and one would be hard pressed to tell a typical ABA brief from an ACLU or NACDL brief in the same case. There is certainly nothing wrong with having an organization dedicated to one point of view and advocating for that view. The Federalist Society, the ACLU, the NACDL, and my organization, the Criminal Justice Legal Foundation, all do so. But we all do so frankly, without any pretense of neutrality. The ABA can be the mouthpiece of the Left, or it can be the representative of the whole bar. It cannot be both.

*Kent S. Scheidegger is the Legal Director of the Criminal Justice Legal Foundation, Sacramento, California.