Habeas Corpus: Rethinking the Great Writ of Liberty

23. Epilogue: Habeas Corpus as a Protector of Individual Liberty in a Federal System

Epilogue: Habeas Corpus as a Protector of Individual Liberty in a Federal System The connection between accurate history and sound public policy is, quite properly, an attenuated one; history should be written without presentist bias, and public policy formed without being unduly constrained by the past. Nonetheless, some of the main lines of the development of the habeas corpus story since 1976, when the Court upheld several contemporary state death penalty systems,1 may help illuminate both what the past has been and what the future should be. In America today capital defendants systematically receive less due process than others. As we have already seen in Parts II and III, and as many current studies show, their cases are more likely than those of defendants not facing execution to have been infected by distortions arising from racism, the incompetence of defense counsel, their own mental limitations, public passion, political pressures, or jury prejudice or confusion.2 For these reasons, the existence of a meaningful federal habeas corpus remedy for state prisoners is especially important in death penalty cases3 —which have been the ones driving the Court’s habeas corpus jurisprudence for the past quarter of a century—and they provide a particularly good lens through which to view the issues. As the Association of the Bar of the City of New York has documented, federal habeas corpus has frequently been indispensable for Death Row inmates seeking justice. Consider some examples of successful petitions drawn from opinions published since 1980: • A mentally deficient man gave the police two vastly different statements during 42 hours of uncounselled questioning. The later of the two confessions used words beyond the defendant’s capability and, 23 147 unlike the first confession, distinctly recited facts which qualified defendant for the death penalty. • The prosecution knowingly presented misleading evidence by using the same expert witness to testify at the defendant’s trial that he must have been the sole triggerman, when that expert had previously testified at the codefendant’s trial that the codefendant must have been the sole triggerman. • The prosecution withheld its most crucial witness’s prior statement, which corroborated evidence favorable to the defendant and would have been material in challenging the witness’s trial testimony; after the federal court ordered a retrial, the charges were dropped and the defendant released. • The prosecutor (i) deliberately withheld the fact that his chief witness had received a deal for his trial testimony, and then (ii) misled the jury by stating in his closing argument that the absence of such a deal favorably reflected upon the veracity of the witness. • The prosecutor based his argument in favor of a death sentence on prior felony convictions that he knew did not exist, even though defense counsel agreed that they did. • Neither defense lawyer conducted any investigation seeking evidence that might persuade the jury not to impose the death sentence, because “[e]ach lawyer . . . believed . . . the other was responsible for preparing the penalty phase.”4 As improbable as it may at first seem, these examples are typical. A Columbia University study released in mid-2000 highlights 48 similarly stark cases that resulted in state capital prisoners succeeding on federal habeas corpus.5 The most reliable published data show that notwithstanding the strong political, institutional, and legal pressures on the federal courts to leave undisturbed state death penalty cases (which, have, after all, already undergone state direct appeal and collateral review),6 the federal courts felt compelled to grant habeas corpus relief (i.e., to overturn either the conviction or the death sentence) in 40 percent of the capital cases they reviewed between 1973 and 1995.7 Thus, federal habeas corpus proceedings have served to reveal and, to some extent, to ameliorate systemic injustices. But to mount a real attack on the arbitrary outcomes in death penalty cases would require a very great deal in the way of resources and political will. And even then, we might not succeed; it is certainly more than possible 148 | Epilogue that Justice Blackmun was right in his conclusion that “the death penalty cannot be administered in accord with our Constitution.”8 Moreover, any serious exploration of that issue would raise the uncomfortable prospect of discovering that the problems endemic to capital cases are widespread in noncapital ones as well. Thus, for example, in rejecting an impeccably documented attack on the racial disparities in Georgia’s death penalty system, Justice Powell wrote...