Vol. 10, No. 36	Covering Cases Published in the Advance Sheets through Sept. 8, 2003

Highlights of this Issue:

A Day Late? You're Dead!

• The Rouse case from the Fourth Circuit is, quite simply, an astonishing case about our criminal justice system. It dramatically exemplifies the type of unbending adherence to statutory deadlines that seems to control much of today’s habeas corpus jurisprudence. It is also a monumental testimonial to the inherent quirkiness of our death penalty jurisprudence. Here, a sharply divided en banc court debated whether to reinstate a habeas petition that had been dismissed because it had been filed a single day late by a death row inmate. A prior panel had ruled that it would be “unconscionable” not to allow the petitioner a chance to be heard on his claim of “virulent racial prejudice” - especially in light of the fact that a man’s life was at stake. By a 7 to 4 vote, the majority reversed the panel’s ruling and held that the petition had been properly dismissed - effectively because a deadline is a deadline - even in a capital case. While the majority agreed that the Supreme Court “has treated death differently,” it also rationalized that any distinctions between the procedures required in capital and noncapital cases “are primarily relevant to trial” - and should not be extended to habeas petitions.

The Speedy Trial Act and the "Gilding Exception"

• In Watkins, the Third Circuit reversed the dismissal of an indictment with prejudice after an earlier criminal complaint had been dismissed for Speedy Trial Act violations. In so doing it rejected the district court’s finding that the Government had engaged in “irresponsible gamesmanship”; and it held that, even if the “gilding exception” to the Speedy Trial Act applied, it did not apply to preclude the Government from prosecuting a separate crime arising out of the same transaction.
  

Failure to Offer Expert Testimony on Battered Woman Syndrome Held Ineffective Counsel

• In Paine, the Tenth Circuit held that the failure of defense counsel to offer any expert testimony regarding battered woman syndrome to support the petitioner’s claim of self-defense constituted ineffective assistance of counsel that was prejudicial to the defendant and required a remand.

Prison Cases

• In the Canadian Coalition case, Judge Carroll of the D.Ariz. held that a series of Arizona laws designed to prohibit Arizona inmates from sending mail to, or receiving mail from, any “communication service providers,” or even from having their names posted on websites, lacked any legitimate penological objective and thus were unconstitutional.
  
  
• In Johnson, a plurality of judges from the Seventh Circuit, sitting en banc, reversed a lower court decision which had ruled that the attorney fee restrictions contained in the Prison Litigation Reform Act were unconstitutional. Writing for the plurality, Judge Easterbrook concluded that the provisions of 42 U.S.C. § 1997e(d) had a rational basis and did not violate the equal protection rights of prisoners as a class. Writing for the dissenting Judges, Judge Rovner said that such a conclusion requires “so many leaps, many ridiculous, as to destroy any semblance of rationality.”

Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (En Banc) (Judge Williams)

In 1992, Kenneth Rouse, an African-American, was convicted by an all-white jury in North Carolina of first degree murder, armed robbery, and attempted first-degree rape of a 63-year old white woman. He was subsequently sentenced to death. On February 8, 2000, after exhausting all of his state appeals, Rouse filed for a writ of habeas in the district court, seeking relief principally on the ground that newly discovered evidence showed that one juror who voted to convict and execute him had deliberately concealed a virulent personal bias and a desire for vengeance against him in order to win a seat on the jury.

The State moved to dismiss the habeas petition as untimely, claiming it was filed one day beyond the one-year statute of limitations specified in 28 U.S.C. § 2254(d). The district court (Judge Tilley of the M.D.N.C.) agreed that Rouse's former court-appointed lawyers had indeed filed his petition one day late; and, because it determined that Rouse had presented no grounds sufficient to support any equitable tolling of the one-year statute of limitations, it dismissed Rouse's petition as untimely, denying him all federal habeas relief.

Rouse then appealed to the Fourth Circuit and, in a decision reported at Rouse v. Lee, 314 F.3d 698 (4th Cir. 2003) (Rouse I), a divided panel ruled that, given the exceptional circumstances of this case, the district court had erred in refusing to toll the limitations period. The exceptional circumstances referred to by that panel were described by Judge Motz, in her dissent in the instant case (Rouse II), as follows:

“Rouse discovered new evidence that the mother of one member of the jury had been robbed, raped, and murdered by an African-American man who was later executed for the crimes. When all prospective jurors were asked for such information at voir dire, the victim's son had remained silent.

“After serving on Rouse's jury, this juror reportedly stated that he had intentionally concealed his mother's tragic death and carefully crafted his other responses to voir dire questions, because he wanted to be on the jury that judged Rouse. Moreover, this juror assertedly expressed intense racial prejudice against African Americans, calling them ‘niggers’ and opining that African Americans care less about life than white people do and that African-American men rape white women in order to brag to their friends.

“Because the juror did not reveal his own family's tragedy or his virulent racial prejudice, Rouse had no opportunity to object to the juror or challenge his ability to judge and sentence Rouse impartially.” (Rouse II, id., at 257).

Judge Motz also wrote the majority decision Rouse I, where she explained why the panel had concluded that it would be “unconscionable” for the court not to use its equitable powers to grant Rouse a hearing on his claims under the exceptional facts of this case. She noted that Rouse’s court-appointed counsel had relied on two “untenable legal theories” which caused the late filing. (Rouse I, id., at 703). She noted that the one day delay was the “most minor” procedural default imaginable. (Rouse I, id., at 708). She noted that Rouse had presented a facially “powerful” constitutional claim of invidious prejudice by the juror in question. (Rouse I, id., at 705). She noted that there was both ample legal precedent and factual support for applying the doctrine of equitable tolling of the statute of limitations in this case. But, most of all, she noted that this was a capital case.

“The fact is that death is different. The phrase itself is timeworn and familiar -- because it is true. Like the Supreme Court, we must recognize that ‘in its finality,’ death ‘differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.’ For this reason, the death penalty presents different and far more serious concerns than any other sanction.“ (Rouse I. id., at 707) (Internal citations omitted). . . .

“Like the Supreme Court, we acknowledge the special demands of cases in which a defendant stands sentenced to death. Given that this case, in which Rouse faces execution, involves the shortest possible delay in filing the habeas petition, a total lack of prejudice to the State, a petitioner who was diligent in all other regards, and habeas claims, including at least one apparently compelling constitutional claim, that will receive no federal habeas review and no hearing in any court if the limitations period is not tolled, we conclude that the district court's refusal to toll the limitations period was indeed ‘unconscionable.’ If ever a case was suitable for an exercise of a court's discretion -- the most minor exercise imaginable, a one-day tolling of a limitations period -- surely, this is that case.” (Rouse I, id., at 708) (Internal citations omitted) (Emphasis added). . . .

“Rouse faces his death with reason to believe that one of the twelve citizens entrusted with doing impartial justice in his case sought so eagerly to condemn him that the juror deliberately misled the court by hiding basic facts as to his particular bias against Rouse and his contempt for all African-Americans. In Rouse's interest and in the interest of justice, we will not allow one day's delay to rob a man on death row of all federal habeas review of such a serious and troubling claim. Although tolling will remain extremely infrequent even in capital cases, we must recognize the rare circumstance in which equity demands tolling.” (Rouse I, id., at 710) (Emphasis added).

A majority of the active judges from the Fourth Circuit strongly disagreed with Judge Motz’ show of compassion. By a vote of 7 to 4, the en banc court reversed the ruling in Rouse I and affirmed the dismissal of Rouse’s habeas petition because it had been filed late by a single day.

Without ever addressing the merits of Rouse’s claim, the majority concluded that he was not entitled to equitable tolling “because he has not shown any extraordinary circumstances beyond his control that prevented him from complying with the statute of limitations.” (Id., at 241). In fact, the majority determined that Rouse had offered nothing more than “garden variety claims of excusable neglect.” (Id., at 246). The majority then intoned that “[t]he delay involved in this petition may seem small but the principles at issue are large.” (Id., at 256).

The important principles at stake were that any “[f]ailure to adhere to the AEDPA's precise filing deadlines, however, even ‘by only a few days,’ ‘would make navigating [the] AEDPA's timetable impossible. Such laxity would reduce predictability and would prevent us from treating the similarly situated equally’.” (Id., at 253).

The majority also rejected the “death is different” arguments raised in Rouse I and by the dissent in the instant case. It wrote: “While it is undeniable that the Supreme Court has treated death differently, any distinctions between the procedures required in capital and noncapital cases ‘are primarily relevant to trial,’ and the Supreme Court ‘has generally rejected attempts to expand any [such] distinctions further’.” (Id., at 255) (Internal citations omitted).

Judge Motz’ dissent, in which she was joined by three other judges, is both powerful and compelling. She observed that “Rouse faces his death, denied all federal habeas review and without ever having received a hearing in any court on his disturbing evidence of juror bias.” (Id., at 257). She rejected the majority’s argument that granting relief in this case would lead to an “unpredictable and indeterminate” assault on the courts by other habeas petitioners - calling such fears “baseless given the extraordinary facts of this case.” (Id., at 266). She concluded by stating that “in the interest of justice, our court should not allow one day’s delay to rob a man on death row of all federal habeas review of such a serious and troubling issue.” (Id.)

Canadian Coalition Against the Death Penalty v. Ryan, 269 F.Supp.2d 1199 (D.Ariz. 2003) (Judge Carroll)

This case makes one wonder if the State of Arizona - or at least its prison system - is still part of the United States of America. The plaintiffs in this case are various prisoner and human rights advocacy groups that maintain websites as an integral part of their advocacy and public education work. Those entities apparently are considered to be enemies of the Arizona prison system because they “publish first-hand accounts from prisoners and often send information to prisoners in the mail.” (Id., at 1201.)

To put an end to such subversive activities, the Arizona Legislature passed a series of laws in 2000 (herein the “Anti-Internet Laws”) pursuant to which all inmates housed by the Arizona Department of Corrections (ADC) “are prohibited from sending mail to or receiving mail from a communication service provider (‘Provider’), or from having access to the Internet through a Provider.” (Id.). If an inmate is suspected of violating the Anti-Internet Laws, disciplinary sanctions are administered. In addition, the Court specifically noted that criminal sanctions might result if an inmate fails, within three weeks from discovery, to expunge any and all information about himself or herself that appears on any websites.

Acting under the Anti-Internet Laws, the ADC imposed disciplinary sanctions on at least five inmates because, as the Court explained,”their names appeared on Internet websites.” (Emphasis added). When ordered by ADC to have their names removed from those websites, each inmate “stated either (1) he had requested his information be placed on the website before such requests constituted ADC policy violations; (2) he had no role in posting his information on the website; or (3) he had been unsuccessful in having his information removed from the website.” (Id.). Nonetheless, sanctions were imposed on each of the recalcitrant inmates.

The poor blokes were apparently dead in the water until the plaintiffs filed the instant action. The plaintiffs sought (a) a declaration that the Anti-Internet Laws were unconstitutional and (b) a permanent injunction to enjoin the ADC from enforcing the Anti-Internet Laws. The ADC, in turn, argued that such blanket restrictions on communications between inmates and Providers were necessary, in part, because they aided the “goal of deterrence” - i.e., unless those laws were kept in place, “both the inmate and general public may perceive incarceration as ‘less arduous’.” (Id., at 1202).

In this brief order, Judge Carroll had little difficulty concluding that the Anti-Internet Laws were not rationally related to any legitimate penological objectives and thus were unconstitutional. He noted that “prison authorities cannot avoid court scrutiny . . . by reflexive, rote assertions.” (Id., at 1203). Using that rationale, he then rejected, as sheer palaver, the ADC’s assertion that “the goal of deterrence” would somehow be impaired if the statutes in question were not upheld - based on its rote assertion that the public might therefor perceive incarceration as “less arduous.” Based on his findings, he then permanently enjoined the ADC and all of its agents and employees from enforcing, directly or indirectly, the Anti-Internet Laws.

Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003) (En Banc) (Judge Easterbrook)

In this case, Cedric Johnson, an inmate, brought a lawsuit against Dr. George Daley, the medical director of the Wisconsin Department of Corrections, seeking damages under 42 U.S.C. § 1983, for forcing him to wait for three years before certifying that he was eligible for a liver transplant. Johnson claimed that Daley had been deliberately indifferent to his serious medical need and had thereby subjected him to cruel and unusual punishment. Ultimately, a jury awarded Johnson $10,000 in compensatory damages and $30,000 in punitive damages. His court appointed counsel then put in a claim for some $92,000 in legal fees. Prison officials objected, claiming that amount of the fees requested exceeded both the absolute and relative limits for legal fees established under 42 U.S.C. § 1997e(d) of the Prison Litigation Reform Act (PLRA).

In Johnson v. Daley, 117 F.Supp.2d 889 (W.D.Wisc. 2000) (P&J, 10/09/2000), District Judge Crabb held that the fee cap provisions contained in § 1997e(d) were unconstitutional because there was simply no rational relationship between the fee cap and any legitimate governmental interest; and that, as such, the statute denies prisoners their equal protection rights compared with other plaintiffs, whose recoveries under 42 U.S.C. § 1988(b) in constitutional-tort litigation are not subject to any statutory maximum. Accordingly, she rejected the fee cap limits in § 1997e(d) and ordered Daley to pay some $88,578 in legal fees and expenses.

On appeal, a plurality of the en banc court reversed and remanded the case for an award of legal fees in accordance with the provisions of § 1997e(d). The plurality concluded that § 1997e(d) does have a rational basis and does not violate the equal protection component of the Due Process Clause. In so ruling, the Seventh Circuit joined with similar decisions from the First, Sixth, Eighth, Ninth and Eleventh Circuits.

What is particularly noteworthy about this decision was not the outcome (which could be expected in the current anti-prisoner political climate), but rather some of the provocative comments of the dissenting judges. Writing for the dissenting judges, Judge Rovner commented that “the journey from the PLRA fee restrictions to the reduction in trivial or frivolous filings . . . requires so many leaps, many ridiculous, as to destroy any semblance of rationality.” (Id., at 600). She argued that to tie the recoverable legal fees to the amount of damages awarded is unfair because “the reality is that both the deep-seated societal antipathy towards prisoners as a class as well as the absence of lost wages or future earnings damages ensures that damages in prisoner cases will nearly always be minimal.” (Id., at 606).

She also challenged “a host” of other questionable arguments and assumptions made by the plurality, “not the least of which is that all prisoners are liars and that all their cases lost are lost because they lied. It is difficult to imagine any other group of persons for whom such sweeping (and unsupported) generalizations would be tolerated, let alone given credence, in a judicial opinion.” (Id.). In the end, she concluded that the fee restrictions contained in § 1997e(d) will make it more difficult for courts to persuade lawyers to accept appointment. “The inevitable result will be that constitutional violations against prisoners will go unremedied, and that is contrary to the purposes of the civil rights acts and § 1988. Congress has no legitimate governmental interest in deterring the filing of meritorious lawsuits. As such, the classification is not rationally related to the goals and fails Equal Protection scrutiny.” (Id., at 619).

Daubert: U.S. v. Angleton, 269 F.Supp.2d 892 (S.D.Tex. 2003) - Here District Judge Rosenthal denied a defendant’s motion to introduce expert testimony regarding aural spectrographic voice identification evidence (which is used to determine the identity of an unknown recorded speaker). After a detailed review of the science and protocols used, he concluded that the technique had questionable scientific validity and failed to meet the Daubert standards for reliability.

DNA Evidence: U.S. v. Kincade, No. 02-50380 (9th Cir. 10/02/2003) - In what we predict will be a very short lived decision, a divided panel from the Ninth Circuit became the first Circuit Court of Appeals to hold that the forced extraction of blood from parolees pursuant to the DNA Analysis Backlog Elimination Act (42 U.S.C. § 14135a) requires individualized suspicion under the Fourth Amendment, and that the compulsory collection of blood samples under that Act is invalid and does not fall within the "special needs" exception to the Fourth Amendment.

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