Tuesday, June 15, 2010


Longtime and careful readers of our blog and Mr. David O Markus with a K's blog know that Mr. Markus has engaged in a long and continuing battle with us over Justice Antonin Scalia. Despite his Harvard education, Mr. Markus somehow clings to the belief that Justice Scalia is the best friend a criminal defense attorney has on the US Supreme Court. We have continually alleged that Scalia is a rank statist (you robed readers can click on the word for a definition) .

We shall now endeavor to examine the opinion in Holland v. Florida, to see who is right.

The facts are simple- Holland - a death row prisoner, had an ass for a court appointed attorney who missed the 2244 post conviction relief deadline. Out of time and seemingly out of luck, the 11th Circuit affirmed the District Court's denial of Holland's pro se request to toll the deadline. In a 7-2 opinion, Justice Breyer wrote for the Supreme Court that the time provisions of 2244 are subject to equitable tolling and that a lawyer's negligence can possibly satisfy the extraordinary circumstances required for equitable tolling.

Along comes Scalia in dissent with- (guess who? Stevens? Ginsberg? hahahaha) Justice Thomas. Note that the facts of this case are so extreme that even Roberts and Alito joined the majority, although they must have steadied themselves with a few stiff shots before agreeing to do so. (Alito concurred in part, and dissented in part because he didn't get a stiff enough drink.)

Scalia has two problems with the decision: first a complicated and somewhat convoluted argument about statutory interpretation; and second (and more important for our purposes) Scalia offers a rousing defense for incompetent attorneys and attempts to eviscerate the right to counsel.

Scalia looks to for ways to uphold the strictest possible reading of the statutory deadlines in 2244. He finds it in a string of 50 year old cases that examine the negligence of retained counsel in civil cases.

Because the attorney is the litigant’’s agent, the attorney’’s acts (or failures to act) within the scope of the representation are treated as those of his client, see Link v. Wabash R. Co., 370 U. S. 626, 633––634, and n. 10 (1962), and thus such acts (or failures to act) are necessarily not extraordinary circumstances.

Now, what about that pesky part of the sixth amendment right to effective counsel in criminal cases? To rule for the government, Scalia needs to take out his knife and do some carving:

"To be sure, the rule that an attorney’’s acts and over- sights are attributable to the client is relaxed where the client has a constitutional right to effective assistance of counsel. Where a State is constitutionally obliged to provide an attorney but fails to provide an effective one, the attorney’’s failures that fall below the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984), are chargeable to the State, not to the prisoner.
(Rumpole notes: so far, so good).

But where the client has no right to counsel——which in habeas pro- ceedings he does not——the rule holding him responsible for his attorney’’s acts applies with full force. See Coleman v. Thompson, 501 U. S. 722, 752––754 (1991).4 Thus, when a state habeas petitioner’’s appeal is filed too late because of attorney error, the petitioner is out of luck——no less than if he had proceeded pro se and neglected to file the appeal himself.


Let us put that in English for you: If you're poor and already convicted, you are stuck with the lawyer you get no matter how bad (or braless- see our previous post) he or she may be. If you're poor and not yet convicted, you may get the benefit of a Strickland v. Washington analysis if your lawyer was incompetent. But once you lose, you have no right to complain about how bad your lawyer is at the next level. It's not like innocent people have ever
been sentence to death and then vindicated through the great writ of habeus corpus, right? Of course not.

Scalia ponders what the possible reasons are that caused the attorney in the case to miss the deadline. Included in his pondering are that the attorney "missed in the mail" the opinion from the Florida Supreme Court, or even that "it simply slipped his mind." Woops. An attorney forgets about a man on death row who claims he is innocent. "What to do? What to do?

Well for Scalia, it's simple- he is a statist true and true in all cases requiring strict construction of statutes, unless you're last name is Bush and you don't want all the ballots in Florida counted. But if your last name is Holland and you are on Death row- here is all Scalia can muster for you:

Such an oversight is unfortunate, but it amounts to ““garden variety”” negligence, not a basis for equitable tolling.

One wonders how Justice Nino Scalia would feel about "garden variety" negligence in perhaps a heart surgeon performing a bypass on him or a loved one?

"Sorry Mrs Scalia- but the surgeon forgot to clamp off an artery. It slipped his mind. It's garden variety negligence and your husband is dead. Have a nice day and thanks for using GW Hospital."

Let us boil it down to simplistic terms that even great trial lawyers who unfortunately happened to attend law school in Cambridge can understand: In Justice Scalia's world, the people serve the law, not the other way around. The law does not serve to ameliorate human suffering or right wrongs. Indeed, to preserve order in the State, the law imposes strict deadlines that must be obeyed no matter what the consequences in human terms.

To Scalia, the law is a monolith that just is. Judges interpret writings on the monolith and apply it's exact meaning (unless the monolith happens to count some humans as 3/5th the value of others- then the monolith has to be read in terms of the time when it was written. ) But other than that, what is etched in stone goes, no matter what.

In Scalia's world- a law forbidding swimming on Sundays would require all lifeguards and bystanders on a beach to watch a child drown, because unfortunate as that event is, the law must be obeyed and is not subject to whimsical interpretations based on individual human need.

Under Scalia's interpretation of 2244, an innocent inmate who has missed the 2244 deadline and who is scheduled to be executed MUST be executed even in the face of 100% proof of actual innocence, because the law, like all orders from above, must be obeyed.

You can have Justice Scalia and his black and white world. David can have him too, although we doubt he agrees with this decision.

We choose to work for a law and a society that serves the citizens, not the other way around.

See You in court.


Anonymous said...

"In the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, at 23. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life- without-parole sentence. Instead, the Court rejects over- whelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency. The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8- year-old and leaves her for dead does not.

I agree with JUSTICE STEVENS that “[w]e learn, some- times, from our mistakes.” Ante, at 1 (concurring opinion). Perhaps one day the Court will learn from this one.

I respectfully dissent."

Now here we are, weeks later and the scary originalists Scalia and Thomas and their "logical" framework still somehow see fit to come up with a reasonable interpretation that allows this poor defendant to be screwed even with an ineffective counsel. I have never been a fan of these two and a few weeks ago, this blog was giving the contest about who had the more logical opinion to Thomas. That day I wrote on the blog just how dangerous Thomas is, but everyone was "oh that Thomas has a great legal mind, blah blah blah."

We knew Thomas sunk to alltime lows when back on December 2, 2009, the Captain was reporting how he allowed Cecil Johnson to be executed.

No surprises here, you can take them both. Statistics show that Thomas probably votes with Scalia more often than Scalia votes with Scalia.

Anonymous said...

This is the clearest picture ever painted of the fraud that is Scalia. The man would have been very comfortable as a judge in 1930s Germany or Italy. The strict letter of the law is more important than justice or life. I understand that lucifer has a similar philosophy.

Join the Court in South MIami said...

Join us in South Miami.

The Professor said...


I enjoyed this post. Kudos for taking on this issue.

But, you and Markus are both wrong. Scalia is neither pro- nor anti-criminal defendant. He has far bigger fish to fry. The "side" he is on is an issue on the "meta-" level. He is on the side of textualism/ originalism (not "original intent" as some falsely claim). When the aims of textualism happen to be on the side of criminal defendants, he's happy to rule in their favor. When the aims of textualism happen to be on the side of the prosecution, the defendant is "out of luck," as he is apparently fond of saying.

For instance, in the Crawford line of cases, promoting his textualist theory of constitutional interpretation happened to coincide with benefiting criminal defendants. He interpreted the plain text of the Constitution to require confrontation in court, otherwise excited utterances are nothing more than a modern version of the extrajudicial statements used to convict Sir Walter Raleigh.

In contrast, Holland shows us, in the context this time of statutory construction, that he's perfectly happy to permit arguably unjust results for the accused if that result happens to serve the ends of his textualist project.

The bottom line is that if Scalia is results-oriented, that orientation has nothing to do with criminal defendants. It has everything to do with him undoing the "Living Constitution" interpretive theory of the Warren/ Burger era. Whether that undoing involves criminal defendants, the Commerce Clause, substantive due process, or whatever else is meaningless to him.

As for whether Scalia is "statist," I have my serious doubts. But, I'll leave that issue to political philosophers like you and Rand.

PS: I'm guessing you went to Columbia Law.

Anonymous said...


Rumpole said...

Profesor- I agree with you that Scalia is way too intelligent to be bogged down with petty judicial peccadilloes like being pro or con defendant. However, since my fellow blogger often rises to the defense of Scalia as being "pro defense" I felt compelled to act (or write as it were.)

And I also agree that Scalia does have bigger fish to fry and those fish are being fried in the oil of his philosophy which is indeed textualism.

Here is my problem- Scalia is most certainly not intellectually consistent, and his vote in Bush v. Gore shows it. Scalia will bend the law and twist his philosophy when his Ox is gored. Most of the time, like in this case. Scalia has no concern about the outcome, so he uses the case as an anvil upon which he bangs his philosophical hammer.

I do not accuse Scalia of being result oriented. I do accuse him of not being philosophically honest in that he would deny he is a Statist and would aver that his concern is textualism of the original document. But I can find a dozen of his opinions that show otherwise. And since he is not Philosophically consistent, I don't know how he sleeps trying to deny inmates a hearing on their habeas claims.

Thanks for reading prof, and no I don't root for the Colombia Lions come the fall. Never have,
However I did hear that an enterprising property professor at Colombia is famous for shutting down a NYC sidewalk one day a year so Colombia doesn't loose the property to adverse possession.

Anonymous said...

please ....stick to state court.


Rumpole said...

A shout out to Mr. Pardo for being the newest member of the "im not afraid to sign my name club".

And as for you Mr/Ms 6:04 AM you MUST be a federal prosecutor, because that's what they all say to me by the time the jury's returning their verdict. They hate to lose.

Anonymous said...

Richarde Hersh wins in he Third DCA. Question of self-defense immunity from prosecution in Stand Your Ground law is for the judge to determine and for defendants to prove by preponderance of the evidence.


Anonymous said...

Um, read the case. Hersh lost if u ask me since his motion to dismiss was reversed. Hersh is a publicity slut. Fact is, the self defense law has been out for some time now, why is he acting like he won some major victory?

Anonymous said...

the blog should end and rumpole reveal himself at some point, right? wouldnt that be more fun already?