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Thursday, January 21, 2010

Supreme Court's McDaniel ruling will have minimal impact on habeas corpus practice
3:56 PM ET

Kent Russell [Attorney, Russell and Russell]: "In McDaniel v. Brown, a habeas petitioner unsuccessfully sought to vacate his conviction on the basis of admittedly flawed DNA evidence which grossly overstated the chances that the defendant was the person guilty of a brutal rape of a child. In my judgment, for the reasons stated below, this decision will have very limited effect on habeas corpus jurisprudence.

Most fundamentally, the main thrust of the Supreme Court's decision [PDF file] in McDaniel [PDF file] – that non-record evidence cannot be considered on habeas corpus – only applies to insufficiency of the evidence claims under Jackson v. Virginia. These claims [hereafter "Jackson" claims], which allege that there was insufficient evidence to convict the defendant as a matter of law, require that the habeas petitioner show that no reasonable jury would have convicted the defendant based on the evidence presented at the trial. This was always one of the toughest standards to meet, even in the pre-AEDPA era, in which federal judges were free to substitute their own judgment for that applied by the state court judges who upheld the jury's verdict on direct appeal. In the wake of AEDPA [PDF file] – the 1996 federal habeas corpus law which provides that convictions obtained in state courts can only be overturned where the state court's decision was contrary to, or involved an unreasonable interpretation of US Supreme Court law – it is nearly impossible to win a Jackson-type claim on federal habeas corpus. Knowing this, habeas corpus lawyers rarely even make Jackson claims any more, much less expect to actually win them on habeas corpus.

Hence, for example, rather than bringing a Jackson claim, a contemporary habeas corpus attorney who believes that the defendant was convicted on weak evidence will much more commonly allege that trial counsel was ineffective in failing to bring before the court evidence which would have undermined the evidence introduced at trial. Such a claim has several advantages over a Jackson claim: First, Jackson claims are, by their very nature, based on the evidence that was introduced at trial, which means that they must be brought on direct appeal or are waived. Accordingly, a habeas lawyer making a Jackson claim starts out staring into the teeth of a state court ruling based on the four corners of the record, and there is virtually nothing "new" the habeas lawyer can bring to the table to change the equation. Furthermore, a Jackson claim must be evaluated by viewing the evidence in the light most favorable to the prosecution, which means that only the evidence pointing to conviction need be looked at to sustain the conviction under Jackson's tough test. Conversely, an ineffective assistance of counsel claim is based on evidence not introduced at trial. Hence, habeas counsel is free to bring non-record evidence into the mix on habeas, thereby providing a new playing field that is different from the field on which the jury trial played out. Moreover, the standard of review for ineffective assistance of counsel claims requires a showing that it is reasonably probable that, had the jury heard the evidence that the ineffective trial lawyer failed to introduce, the outcome would have been more favorable to the defendant than it was. Although that is not an easy standard to satisfy, it's a heck of a lot easier than showing, in effect, that it's impossible that a reasonable jury would have convicted the defendant based on the trial evidence most favorable to the prosecution, which is what Jackson requires.

Similarly, rather than making a Jackson claim, a habeas lawyer seeking to show that faulty DNA evidence was responsible for convicting an innocent person (i.e., the situation in McDaniel) could have attacked the flawed DNA evidence head-on as having rendered the trial so fundamentally unfair as to have violated Due Process. There is a legitimate basis for such a claim, namely the Supreme Court decision in Manson v. Braithwaite, which holds that the use of excessively suggestive identification evidence violates Due Process. If such a claim were successful, the habeas court would have to excise the offending evidence and then determine whether, based on the remaining evidence, the admission of the flawed evidence "had a substantial and injurious effect or influence in determining the jury verdict." Again, that is not easy to show, but it's a lot easier to do than showing the trial evidence, viewed in the light most favorable to the prosecution, was so weak that no rational jury would have convicted the defendant.

Coming back now to McDaniel, it's crucial to point out that the Supreme Court did not reject either an ineffective assistance of counsel claim or a Due Process claim on the merits. Rather, the Court declined to consider the Due Process claim because the petitioner's lawyers had waived it by failing to assert it at all in the state proceedings; and sent the case back to the Ninth Circuit to pass on the ineffective assistance of counsel claim, as that claim had been raised by the petitioner in state court but had not been evaluated or ruled upon by the Ninth Circuit, which only considered the flawed Jackson claim. Hence, the petitioner in McDaniel can still win on habeas corpus if the Ninth Circuit grants him relief on his ineffective assistance of counsel claim – a very real possibility since the US District Court did grant relief on this claim as well when the case was still at that level.

In sum, the Supreme Court's decision in McDaniel, which may not even resolve that case, will only have a wider impact by making it clear that habeas claims based solely on Jackson will have to sink or swim based on the evidence introduced at trial and not on the basis of new evidence submitted for the first time in federal court. Yet, that much was pretty clear before McDaniel, and Jackson claims are so rare anyway under AEDPA that McDaniel's overall impact on contemporary habeas corpus practice should be minimal."

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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