Timothy P. O'Neill 

January 18, 2008

One of the Most Bizarre Laws on htraE

Readers of Superman comic books - as well as fans of Seinfeld - are aware of Bizarro World. This is the planet where everything is ruled by the Bizarro Code: ''Us do opposite of all Earthly things! Us hate beauty! Us love ugliness! Is big crime to make anything perfect on Bizarro World!''

I thought of this recently when someone asked me how a federal judge decides a state prisoner's habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996.

I said a federal judge decides it the way she would decide any other case - - as long as the judge remembers that AEDPA puts her squarely in Bizarro World. Under AEDPA, it is not enough for a federal judge to find that the state court criminal decision is legally incorrect; the judge cannot grant relief unless the decision is not just incorrect, but also ''unreasonable '' - whatever that means. AEDPA adds a new law to the code of Bizarro World: ''Us hate legal logic.''

A case in point is the 7th U.S. Circuit Court of Appeals decision in Van Patten v Deppisch, 434 F.3d 1038 (7th Cir. 2006). Joseph Van Patten pleaded guilty to first-degree intentional homicide in a Wisconsin state court. He received the maximum term of 25 years in prison. Although counsel represented him, there was no defense counsel present in court. That's because the defense counsel participated via speakerphone.

What's wrong with this picture? Van Patten filed a federal habeas petition alleging that the failure of the defense counsel to appear in court constituted a Sixth Amendment violation. The 7th Circuit agreed. It relied on a U.S. Supreme Court opinion that held that the absence of counsel at a critical stage of the prosecution is presumptively prejudicial and must result in a reversal and remand. U.S. v. Cronic, 466 U.S. 648 (1984).

Simple enough? Not under AEDPA.

Two weeks ago the U.S. Supreme Court reversed the 7th Circuit in a short per curiam opinion. Wright v. Van Patten, No. 07-212 (Jan. 7). The court noted that AEDPA allows a federal court to grant a state defendant's habeas petition only if the state court's decision ''was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.'' 28 U.S.C. § 2254(d). Although Cronic indeed referred to the denial of the presence of defense counsel as presumptively prejudicial, it did not say that counsel's appearance via speakerphone would not constitute ''presence'' at the hearing. Thus, because no decision of the U.S. Supreme Court holds that the use of a speaker phone is forbidden, the decision of the Wisconsin state court that the defense attorney was indeed ''present'' cannot be said to be an ''unreasonable application of clearly established federal law.'' Thus, the 7th Circuit erred in granting relief.

But wait a minute. When Cronic was decided in 1984, I'll bet no one even thought about a defense attorney appearing via speakerphone. All the 7th Circuit did was to interpret Cronic's use of the phrase ''presence of counsel'' to mean ''presence of counsel in open court.'' I'll even bet the author of the Cronic opinion would agree with this.

Guess what? The author of Cronic does agree with this. The reason I know is that Justice John Paul Stevens, who wrote Cronic in 1984, filed an opinion concurring in the judgment in Van Patten.

Stevens begins his opinion by stating: ''An unfortunate drafting error in the Court's opinion in [ Cronic] makes it necessary to join the Court's judgment in this case.''

Stevens states that the 7th Circuit was correct in its assumption that Cronic's use of the phrase ''presence of counsel'' indeed meant the ''presence of counsel in open court.'' So why didn't Cronic say so? Because, Stevens says, in 1984 ''neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh.'' If they had, said Stevens, the court would have added the words ''in open court'' after ''present.''

So Stevens concludes that the 7th Circuit's view is not only reasonable but absolutely correct. But if that's true, why did the U.S. Supreme Court unanimously reverse the 7th Circuit?

Because, as Stevens writes, under AEDPA the issue is not whether the 7th Circuit's view is reasonable; the issue is whether Wisconsin's crabbed view of Cronic was unreasonable. And because the Cronic opinion authored by Stevens was not explicit about attorneys needing to be present ''in open court,'' Stevens reluctantly agrees that the Wisconsin court's interpretation was not an unreasonable application of clearly established federal law. Consequently, federal courts under AEDPA cannot grant habeas relief.

Stevens concludes that this per curiam decision in no way holds that Wisconsin's narrow view is correct. And, he adds that if the issue were before the court on direct review with a de novo standard of review, the decision might well be different. But AEDPA will not allow federal courts to reverse state decisions that are merely incorrect; they must be both incorrect and unreasonable.

Must a federal court let stand a state court criminal decision that is clearly incorrect? AEDPA says it must, as long as the decision is not ''unreasonable.'' But, in light of ''separation of powers'' principles, does Congress have the power to tell a federal court how to decide a case in this way?

A federal judge recently answered this question with an emphatic ''No!''

John T. Noonan is an eminent constitutional scholar who has taught at both Notre Dame and the University of California-Berkeley. In 1986, President Reagan appointed him to the 9th Circuit. He recently filed a concurring opinion that questions the very constitutional foundations of AEDPA. Irons v. Carey, 505 F.3d 846 (2007).

Noonan concedes that Congress has the power to determine the jurisdiction of all federal courts. But, he says, that is different from Congress telling federal courts how to decide the cases over which they have proper jurisdiction. This latter command violates separation of powers.

''Legislatures exist to make laws. Courts exist to decide cases. The separation of these functions is part of our democratic system of government. To allow the legislature to tell a court how a case should be decided is worse. It allows the legislature to mask itself under judicial robes.''

Noonan contends that AEDPA violates separation of powers by dictating how a court must decide a habeas case. Congress, through AEDPA, has told the courts that they must restrict themselves to determining only whether a state criminal decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court at the time the decision became final. Thus, AEDPA ''strike[s] at the center of the judge's process of reasoning. It shuts the judge off from the judge's normal sources of law and curbs that use of analogy, which is the way, the mind of a judge works. In our system of law where precedent prevails and is developed, AEDPA denies the judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent, and even denies the courts the power to follow the law as now determined by the Supreme Court - the precedent to be applied must have been in existence at the earlier moment when a state decision occurred. A more blinkered concept of law cannot be imagined - law, particularly constitutional law - is treated as what once was the law. The development of doctrine is despised. That despisal is a direct legislative interference in the independence of the judiciary.''

From the 1950s to the 1990s, federal habeas litigation offered state defendants a powerful tool to have their federal constitutional rights vindicated. Since AEDPA became law in 1996, defense lawyers have argued that the drastic cutback in the scope of habeas was bad policy. Noonan's eloquent opinion suggests that AEDPA may be more than just bad policy - it may be unconstitutional.