Kent S. Scheidegger*
In the Supreme Courts 1997-98 term, the American Bar Association
continued its past record of taking the defendants 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 states
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 inmates 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.
Woodards 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 ABAs 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 ABAs 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
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 ABAs 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 ABAs 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 ABAs 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
Debates over history loom large in the habeas wars. The ABAs
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 Courts 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 Thompsons 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 Thompsons 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 courts 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.