Vol. 10, No. 22	Covering Cases Published in the Advance Sheets through June 2, 2003

Highlights of this Issue:

Supreme Court

• In Wiggins, by a vote of 7 to 2, the Court reversed the death sentence imposed on Kevin Wiggins, a borderline retarded man who was convicted of murder in 1989, on the grounds that his defense counsel had violated his right to effective assistance of counsel by failing to investigate properly and present to the jury Wiggins’ background of severe abuse as a child, which evidence the majority suggested, might have resulted in a life sentence had it been known by the jury.
  
  
• In Stogner, by a vote of 5 to 4, the Court struck down a California law that retroactively extended the statute of limitations for sex crimes against children and that permitted the prosecution of those accused of such crimes long after the previous limitations periods had expired.
  
  
• In American Library Ass’n, a fractured Court upheld as constitutional certain provisions of the Children’s Internet Protection Act (CIPA) that require libraries receiving various forms of Federal aid to install Web "blocking" programs that censor a wide range of materials for both adults and minors. The Justices were so badly split on the issue that no single opinion spoke for the Court: there was one plurality opinion signed by four Justices, two separate concurring opinions and two dissenting opinions.
  
  
• In Lawrence, probably the most surprising of the decisions released on the final day of the Court’s current term, a bitterly divided Court, by a vote of 6 to 3, overturned a Texas "homosexual conduct" law that criminalizes sexual practices between same-sex couples that are lawful in the state when performed by a man and a woman - a broad ruling that almost certainly impacts the laws in 13 states that still maintain criminal anti-sodomy laws. The majority concluded that the law was an unconstitutional violation of the privacy rights of those accused. Justice Scalia, writing for the three dissenters, took the unusual step of reading his dissent from the bench; and he accused the majority of “signing on to the so-called homosexual agenda.”

Guidelines

• In Serpa, Judge Young of the D.Mass. granted a downward departure because the defendant’s plea predated the BOP’s recent change in policy regarding placement of inmates in a halfway house at the recommendation of the sentencing judge - reasoning that the change raised the specter of an ex post facto violation and denied the defendant the ability to foresee his likely sentence when he pled.

Apprendi

• In Jones, the Third Circuit upheld the use of an Armed Career Criminal sentence enhancement based in part on a prior non-jury juvenile conviction, thus rejecting the defendant’s claim that, based on a Ninth Circuit decision, the “prior conviction exception” contained in Apprendi does not apply to prior juvenile convictions that were obtained without a right to a jury trial.

Wiggins v. Smith, No. 02-311 (U.S. Sup. Ct. 06/26/2003) (Justice O’Connor)

The petitioner in this case, Kevin Wiggins, who was once diagnosed as “borderline mentally retarded,” was convicted in 1989 of the murder of a 77 year-old woman who was found drowned in her bathtub; and he was ultimately sentenced to death. After exhausting his state appeals, he filed for habeas relief in the Federal courts, arguing principally that his counsel had been constitutionally inadequate at the sentencing phase of his criminal proceedings by failing to investigate and present mitigating evidence of his dysfunctional background. He cited, for example, evidence that he had suffered horrendous abuse throughout his childhood - from his mother, who burned his hands on the stove as punishment, and in various foster-home settings, where he was subjected to sexual assaults, beatings and near starvation.

In a decision reported at Wiggins v. Corcoran, 164 F.Supp.2d 538, 557 (D.Md. 2001), District Judge Motz granted Wiggins relief after finding that the state courts’ rejection of his ineffective assistance of counsel claim “involved an unreasonable application of clearly established federal law.” In his review of the case, Judge Motz also concluded that it was not “entirely implausible” that Wiggins had not even committed the murder in the first place - although that issue was not before him.

On appeal, the Fourth Circuit reversed. It held that Wiggin’s counsel was aware of the avenues of mitigating evidence that were available to them, but they had made a reasonable strategic decision to focus on his direct responsibility for the murder. Thus it reversed the grant of habeas relief. (Wiggins v. Corcoran, 288 F.3d 629 (2002)).

This appeal then followed and the stakes immediately escalated as numerous parties filed amicus briefs. The Justice Department entered the case on Maryland’s side after Attorney General Ashcroft argued that the legal representation that Wiggins had received was “eminently reasonable.”

Then, General Ashcroft’s predecessor, Janet Reno, joined by nine other current and former prosecutors, filed an amicus brief on Wiggins behalf, arguing that the credibility of the criminal justice system was at stake in cases like the instant one. In her brief (which can be accessed on the Internet by clicking here) she stated: “A strong statement from the Court that it will not condone or excuse substandard performance in death penalty representation will enhance public confidence in the criminal justice system.”

By a vote of 7 to 2, the Supreme Court reversed the Fourth Circuit’s ruling and remanded the case for a new sentencing hearing. Writing for the majority, Justice O’Connor agreed that Wiggins’ attorneys’ poor performance at sentencing violated the standards established in Strickland v. Washington, 466 U.S. 668 (1984) and constituted ineffective assistance of counsel. The issue, she stressed, was “not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable.” (Emphasis in original.)

In pursuing that question, Justice O’Connor emphasized that “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. . . . We base our conclusion on the much more limited principle that ‘strategic choices made after less than complete investigation are reasonable’ only to the extent that ‘reasonable professional judgments support the limitations on investigation.’ . . . Counsel’s investigation into Wiggins’ background does not reflect reasonable professional judgment.”

Then, concluding that counsel’s “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment,” Justice O’Connor wrote: “The mitigating evidence counsel failed to discover and present in this case is powerful. . . . Given both the nature and extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form.”

Justices Scalia and Thomas dissented; and, in their “death now” rant, they caustically asserted that the majority’s reasoning ranged “from the incredible up to the feeble.” They bluntly asserted that the Maryland courts had not been unreasonable; that the majority’s decision “sets at naught the statutory scheme” established under 28 U.S.C. § 2254(d); and that the majority’s decision was “extraordinary - even for our ‘death is different’ jurisprudence.”

Stogner v. California, No. 01-1757 (U.S. Sup. Ct. 06/26/2003) (Justice Breyer)

Until 1993, most sex crimes in California were governed by a general three-year statute of limitations, which meant that they could not be prosecuted once three years had elapsed. Pressured by the rising incidence and notoriety of child sex abuse crimes, the California legislature changed the law that year by enacting a series of new laws that dramatically extended the applicable statutes of limitation and effectively erased the previous limits on prosecuting child molesters. Under the new law, an adult could at any time give evidence of having been the victim of a sexual offense before the age of 18, and prosecutors had a year in which to act. Thus, persons could now be prosecuted for sex crimes that occurred years beforehand - even where the original limitations period had long since expired.

In the instant case, a California grand jury indicted Martin Stogner in 1998 for sex-related child abuse alleged to have been committed decades before, during the years between 1955 and 1973. California could not have prosecuted Stogner without the new statute allowing revival of a cause of action.

Stogner moved for dismissal of the case, arguing that the Ex Post Facto Clause of the Constitution forbids revival of a previously time-barred prosecution. The trial court agreed, but the California Court of Appeal reversed. Stogner then moved to dismiss his indictment, arguing that his prosecution was unconstitutional under both the Ex Post Facto Clause and the Due Process Clause. The trial court denied Stogner’s motion and the California Court of Appeal upheld that denial.

By a vote of 5 to 4, the Supreme Court reversed the judgment of the California Court of Appeal and concluded that the new law was unfairly retroactive as applied to Stogner. Writing for the majority, Justice Breyer concluded that the Constitution bars the states from reviving legal deadlines that have already expired.

As a matter of interest, the majority noted that, while courts have consistently upheld extensions of unexpired statutes of limitations, the Supreme Court has not previously spoken decisively on the issue of reviving time-barred criminal cases where the original statute of limitations has already expired, as in the instant case.

Thus, to a large degree, the issue before the Court was a matter of first impression. As a result, both the majority and the dissent engaged in a detailed examination of the scope of the Ex Post Facto Clause, as originally expounded upon in a 1798 decision of the Supreme Court, Calder v. Bull, 3 Dall. 386 (1798).

In Calder, the Court declared that the Ex Post Facto Clause meant that legislators could not do four things: they could not criminalize an act that was not a crime when it was committed; they could not “aggravate” a crime, or make it more serious than it was when committed; they could not make the punishment greater than it was when the crime was committed; and they could not alter the legal rules of evidence to make it easier for the Government to obtain a conviction.

In one sense, the real question before the Court was whether the revival of an expired statute of limitations fits within one of the four categories of circumstances described in Calder - and much of the majority and dissenting opinions are devoted to that technical and complex debate.

But, in a far more pragmatic sense, the majority also concluded that the retroactive application of “a later-enacted law is unfair.” That approach was particularly relevant in light of what the majority called the “Herculean effort” of the dissenting Justices “to prove that it is not unfair, in any constitutionally relevant sense, to prosecute a man for crimes committed 25 to 42 earlier when nearly a generation has passed since the law granted him an effective amnesty.”

Justice Breyer dismissed the dissent’s “prodigious display of legal and historical textual research” by stating: “We disagree strongly with the dissent’s ultimate conclusion about the fairness of resurrecting a long-dead prosecution. . . . In our view, that reading is too narrow; it is unsupported by precedent; and it would deny liberty where the Constitution gives protection.”

Four Justices (Rehnquist, Kennedy, Scalia and Thomas) dissented, in an opinion written by Justice Kennedy. Finely parsing the Calder decision, they argued, principally, that a law “which does not alter the definition of the crime but only revives prosecution does not make the crime ‘greater than it was, when committed’.” Citing numerous commentators from the 17th and 18th centuries, they argued that a law that merely extends a statute of limitations - even retroactively - does not fit within the traditional definition of ex post facto.

One reason why the vote was so close may have been because of the “compelling interest” argument made by many of the groups that filed an amicus brief in this case - namely that children are in a special category and deserve special protections. That theme was evidenced by two principles that were repeatedly emphasized in the briefs filed: (a) “When a child molester commits his offense, he is well aware the harm will plague the victim for a lifetime”; and (b) many offenders escape prosecution because their victims “may be shamed, intimidated or otherwise prevented from reporting abuse until well into adulthood.”

Lawrence v. Texas, No. 02-102 (U.S. Sup. Ct. 06/26/2003) (Justice Kennedy)

In a sweeping decision that effectively overturns similar criminal anti-sodomy laws in 13 states, the Supreme Court, by a surprising vote of 6 to 3, overturned a Texas "homosexual conduct" law that criminalizes sexual practices between same-sex couples that are lawful in the state when performed by a man and a woman, holding that the statute violates the Due Process Clause.

The decision also expressly reversed Bowers v. Hardwick, 478 U.S. 186 (1986), an earlier decision on the same issue where the Court had dismissed the identical constitutional arguments as “facetious.” Showing a dramatic swing in the Court’s view of gay sex in just 17 years, the majority concluded that Bowers “was not correct when it was decided, and is not correct today” and its continuance as precedent “demeans to lives of homosexual persons.”

The case arose out of an appeal by two Houston men who were prosecuted for having sex in their home and were convicted of a misdemeanor. The case began when a neighbor with a grudge faked a distress call to the police, telling them that a man was “going crazy” in Lawrence’s apartment. When the police arrived, they barged into the apartment and found the two men having sex. The two men pleaded no contest, but preserved their right to appeal the constitutionality of the statute. They spent a night in jail and were each fined $200. The neighbor was later convicted of filing a false report.

After the Texas courts rejected the constitutional challenges to the law in question (relying principally on the Bowers decision), the Supreme Court granted certiorari to consider three questions:

“1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law -- which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples -- violate the Fourteenth Amendment guarantee of equal protection of laws?

"2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

"3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?"

The central theme of the Court’s response to those questions was that “[w]hen homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

The majority reasoned that the issues at stake and the questions presented were much broader than simply the right to engage in homosexual sex. Writing for the majority, Justice Kennedy concluded that the liberty protected by the Constitution allows homosexuals the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Gays are “entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Justice O’Connor, who was part of the 5 to 4 majority in Bowers, did not join with the other members of the majority in overruling that decision. But she did provide the sixth vote for overturning the Texas anti-sodomy law in a separate decision that attacked the law on equal protection grounds because it made “deviate sexual intercourse” - oral and anal sex - a crime only between same-sex couples and not for heterosexuals.

In a scathing dissent, Justice Scalia (who was joined by Justices Rehnquist and Thomas) criticized the majority’s inconsistent and “manipulative” use of the principle of stare decisis by showing a “surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers.” While he claimed that he had “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” he accused the majority of having “taken sides in the culture war” and having “largely signed on to the so-called homosexual agenda.”

But, most of all, Justice Scalia complained that the decision “effectively decrees the end of all morals legislation.” He continued: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws in called into question in today’s decision . . . . “

Quote of the Week

On June 24, 2003, The New York Times published, on its Op-Ed page, a commentary from District Judge John S. Martin, Jr. of the S.D.N.Y. Under the title “Let Judges Do Their Jobs,” Judge Martin directed the bulk of his comments at the Federal sentencing system, which he said has become “unnecessarily cruel and rigid.” He concluded by noting that, while he has reached retirement age, he had decided against continuing to serve on the bench in senior status. He wrote: “When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal system.” (Emphasis added).

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