Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warming (at least not directly).

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

A Habeas Class Action

The Prison Law Office, appointed to represent a formerly pro per habeas petitioner who contended the parole board was late in hearing his case, decided to go for a brass ring by filing a class action habeas petition on behalf of all prisoners similarly situated. And they got it . . . at the trial level. Here”s the succinct summary from the opinion in In re Inez Tuto Lugo, case no. A114111 (1st Dist. July 21, 2008):

The proceeding giving rise to these consolidated appeals began simply enough with a habeas corpus petition filed by a prisoner who claimed his parole suitability hearing had not been conducted within the time specified in the Penal Code.  From that modest beginning, the proceeding transmogrified into something unprecedented under California law—a habeas class action on behalf of parole-eligible life prisoners in which the trial court has assumed a role as overseer of the Board of Parole Hearings (Board) on a range of matters far afield of the simple complaint that motivated the original petitioner to seek relief.

On appeal, the Board claims the trial court erred by improperly limiting the Board’s inherent discretion and requiring the Board to state “a significant change in circumstances” justifying a decision to deny parole for more than one year following a prior one-year parole denial. The Board further contends the trial court erred by requiring it to provide inmates with transcripts of their parole hearings within 30 days of the hearing date or face sanctions of $10 per day for each delayed transcript. Finally, the Board claims the trial court abused its discretion when it chose to multiply the fees awarded to class counsel by a factor of 1.5.

The court holds that the order requiring the board not to deny further parole hearings for more than a year absent exceptional circumstances is an unlawful restriction on the Board’s discretion.  It reverses the order requiring the Board to provide transcripts because the question was never properly before the trial court.

I have to admire the tactic of asserting the first-ever habeas class action in California, even though it didn’t work out in the end . . . for the class members, anyway.  The fee award is affirmed.

Successive or Amended Habeas Petition?

Sometimes, it’s nice to be pro se. I’m not sure the pro se habeas petitioner in Woods v. Carey, case no. 05-55302 (May 13, 2008) would have received the same relief if represented by counsel when he filed a second habeas petition under 28 U.S.C. § 2254 while his first was pending in the district court. Both petitions asserted deprivation of rights in connection with his parole eligibility and procedures, and the district court dismissed the second petition as an impermissible “successive” petition. The court of appeals reverses with instructions to contstrue the later petition as a motion for leave to amend the original petition.

The Ninth first lays out the statutory scheme applicable to federal habeas petitions by state prisoners:

“Generally, a new petition is ‘second or successive’ if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) implemented a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2). Under that provision, a successive application is permissible only if it rests on a new rule of constitutional law, facts that were previously unavailable, or facts that would be sufficient to show constitutional error in the petitioner’s conviction. 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court. 28 U.S.C. § 2244(b)(3).

Woods never obtained authorization for the second petition, but argued that the Ninth should adopt the rule in the Second Circuit, which construes subsequent petitions filed while one or more are still pending as motions for leave to amend the original petition. The Second adopted the rule in part because of the “tension between the liberal amendment policy embodied in Fed. R. Civ. P. 15 . . . and the AEDPA’s restrictions on bringing successive collateral attacks to criminal conviction.” The Second reconciled that tension in favor of treating the later petition as a motion to amend — even where the earlier petitions were on appeal when the latest was filed — because it saw the risk of abuse as minimal, since amendment is subject to the district court’s discretion, putting it in a position to thwart abusive tactics.

The Ninth finds this rationale particularly persuasive as to pro se petitioners:

The Second Circuit’s logic applies with special force in the context of pro se litigants. “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” [Citations.]. If Woods had the benefit of counsel at the time he filed the instant petition, that counsel certainly would have filed the 2004 claims as an amendment to the 2003 petition. Accordingly, we follow the persuasive reasoning of the Second Circuit[.]

(Emphasis added.)

This explanation leaves open the possibility that the Ninth might not be so generous in cases of represented petitioners, though I think it should be (and I am betting that the Second Circuit petitioners were represented, which would also support similar treatment for represented petitioners). The tension between liberality of amendment and the restrictions in the AEDPA on successive petitiones exists regardless of whether the petitioner is represented or not. Still, I hope the court is correct that attorneys will “certainly” file additional claims as amendments, rather than risk exploitation of the apparent loophole left by the Ninth’s logic in Woods.

Death Penalty Odyssey Likely to Fuel Debate

NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post.

In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty.

I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring opinion making it into the news.

Looking for Help re Anonymous Habeas Case

Howard Bashman at How Appealing is looking for an explanation why the habeas petitioner in yesterday’s Doe v. Woodford, case no. 06-16054 (9th Cir. Nov. 27, 2007) opinion was kept anonymous despite the facts that (1) it appears to be a substitute opinion for an earlier opinion under the same case number, in which the petitioner was identified and (2) the PACER records for the case continue to identify the petitioner by name.  The opinion itself is silent on the reason for anonymity.

Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.

Conflict with Appellate Counsel Doesn’t Merit Habeas Relief

In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.