What Do You Do With Terrible Precedents Shielding Lying Prosecutors?

Bacall v. Stoddard is about a prosecutor who lied.

Bacall was accused of first-degree murder. He claimed self-defense. The prosecutor told the jury that Bacall never once raised the issue of self-defense before trial -- that it was an opportunistic argument he only now was trying to swing. This was the lie. Bacall had been emphatic in claiming self-defense since being booked for the crime, and the prosecutor was well aware of this. But following that lie, the jury (which made it clear it was agonizing over the case in deliberations), voted to convict.

The Sixth Circuit rejected Bacall's Habeas petition. They were clearly disturbed by the conduct. There was no question in their mind that the prosecutor lied, and did so intentionally (quoth the court regarding the prosecutor's statements to the jury: "This was false, and the prosecutor knew it."). The case was not one where the evidence against the defendant was overwhelming; the prosecutor's lie very well could have tipped the margin. The issue was preserved at trial (via an objection made -- on instructions of the trial court -- out of earshot of the jury).

The problem was that Supreme Court precedents and the AEDPA have made prevailing on a Habeas petition almost ludicrously difficult to manage. Even in a case like this, where there was a manifest abuse by the prosecution, the question was whether the Michigan state court's decision not to overturn the jury verdict was "was so lacking in justification that [it committed] an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Yeah, that's a tough standard to meet.

The panel clearly believed this case well-illustrated how the current law and precedents have gone badly off the rails. It seemed to me that they weren't saying that the only reasonable way of reading the law was to require that outcome, however. Rather, their analysis suggests that they believed this outcome was the most reasonable interpretation of the governing law.

For me, this raises an interesting hypothetical. Suppose you're the appellate judge hearing this case, and you think the following things are true:

(a) the prosecutor here committed a gross miscarriage of justice, such that, in a just and functioning legal system, Bacall's conviction should clearly be reversed; 

(b) the most accurate read of the governing statute and precedents -- entirely bloodless and indifferent to the consequences or questions of justice -- would suggest that his Habeas petition must fail; 

(c) notwithstanding the above, there is a plausible and reasonable (though not the best) interpretation of the statute and precedents which would justify granting the Habeas petition; and

(d) you suspect that, if your panel does successfully grant the petition, that ruling will not be disturbed by any further appeals (the case won't go en banc or to the Supreme Court).

What do you do?

Don't Mock the Constitution

Obama hits back at Sarah Palin, who derisively attacked Obama in her convention speech for being "worried that someone won't read them their rights.":

"My position has always been clear: If you've got a terrorist, take him out," Obama said. "Anybody who was involved in 9/11, take 'em out."

But Obama, who taught constitutional law at the University of Chicago for more than a decade, said captured suspects deserve to file writs of habeus [sic] corpus.

Calling it "the foundation of Anglo-American law," he said the principle "says very simply: If the government grabs you, then you have the right to at least ask, 'Why was I grabbed?' And say, 'Maybe you've got the wrong person.'"

The safeguard is essential, Obama continued, "because we don't always have the right person."

"We don't always catch the right person," he said. "We may think it's Mohammed the terrorist, but it might be Mohammed the cab driver. You might think it's Barack the bomb-thrower, but it might be Barack the guy running for president."

Obama turned back to Palin's comment, although he said he was not sure whether Palin or Rudy Giuliani said it.

"The reason that you have this principle is not to be soft on terrorism. It's because that's who we are. That's what we're protecting," Obama said, his voice growing louder and the crowd rising to its feet to cheer. "Don't mock the Constitution. Don't make fun of it. Don't suggest that it's not American to abide by what the founding fathers set up. It's worked pretty well for over 200 years."

I remember Palin's line at the convention. It stuck with me, because it indicated something that had become increasingly clear about the modern GOP over the past few years. Lawless detention is now a litmus test for the party. You cannot be a member in good standing and support Habeas Corpus. You cannot be a member in good standing and support fair trials. You cannot be a member in good standing and support due process.

It is a mockery of the constitution. The American people deserve to know that.

On Their Heads

I don't have time to read the entire opinion in Boumediene v. Bush, holding 2-1 that the Military Commissions Act precludes Guantanamo Bay detainees from pressing Habeas Claims. I agree with the court that the goal of the MCA was to strip the courts of jurisdiction from hearing such claims. I'm not sure whether such an action is constitutional, and I don't really know enough about the law to forward an educated opinion, though my gut says it isn't.

But in a sense it doesn't matter. There is only so much the courts can resist against a united congressional and executive assault on our core constitutional and human rights. This sin is on the head of the Bush administration, yes, for so aggressively working to undermine the rule of law and civil protections due to humankind. But it is also a sin we can ascribe to congress, for passing the MCA and gutting what little protection may have fallen to the detainees in the wake of Rasul.