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Can you imagine a case in which Justices Antonin Scalia and Clarence Thomas would both rule for a condemned state prisoner, overturning a federal appeals court that was prepared to send him to his death without further ado? The case, that of Michael Wayne Williams, materialized on April 18. It was one of the two habeas corpus cases that the U.S. Supreme Court overturned that day, each of which arose from the 4th U.S. Circuit Court of Appeals, each involving an inmate on Virginia’s death row. The cases signaled, as the media reported, that the Supreme Court still plans to exercise meaningful scrutiny in habeas appeals, notwithstanding the limits placed on their power to do so by the Antiterrorism and Effective Death Penalty Act of 1996. On the most important abstract legal issue decided that day — the standard of review in death cases after the 1996 act — the 4th Circuit had actually ruled the same way as every other circuit court had, and the same way the Supreme Court ultimately did. The high court only reversed the 4th Circuit over the manner in which it applied that standard of review. Yet when you examine the details of Michael Williams’s case, which the Court decided by a 9-to-0 vote, you begin to appreciate the story within the story here. That story is this: When it comes to death penalty jurisprudence, the Fourth Circuit has quietly seceded from the Union. Having overturned Miranda v. Arizona in February 1999, the 4th Circuit is well known, of course, to be a conservative court. (The Supreme Court heard arguments in that Miranda-related case on April 19.) But in the realm of death penalty review, the adjective “conservative” does not account for what has been happening. While condemned inmates’ rates of at least partial success in federal habeas corpus actions run at close to 40 percent nationally, the rate in the 4th Circuit since October 1995 has been a cool 0 percent, with more than 80 consecutive convictions having been upheld, according to statistics kept by Cornell Law School professor John Blume. How has this court maintained this perfect record, notwithstanding the inevitable instances of outrageous prosecutorial misconduct that are periodically brought to its attention? In part, it has done so by always assuming a clairvoyance on the part of the appointed defense counsel that could have negated the impact of the misconduct. Lest the reader dismiss me as just another liberal journalist off on a rant, let’s focus on the facts of Michael Williams’s case. In 1994 he was convicted of a horrible double homicide. His conviction was upheld, his state habeas corpus petition was denied, and he then filed his last-chance federal habeas petition. At his appointed counsel’s request, the federal district judge appointed an investigator — a request that had been denied during his state habeas. The investigator interviewed the original jurors and discovered something odd. Unbeknownst to Williams or his trial lawyer, the jury forelady, Bonnie Stinnett, had formerly been married to the lead detective on Williams’s case, deputy sheriff Claude Meinhard, who had also been the state’s first witness against Williams. Prior to their 1979 divorce, Stinnett and Meinhard had been married 17 years, and had had four children. But that’s not all. Stinnett’s divorce from Meinhard had been handled by Robert Woodson, Jr., who was Williams’s prosecutor. During jury selection, when the panelists had been routinely asked if they were “related” to deputy sheriff Meinhard, both forelady Stinnett and prosecutor Woodson had stood silent. Similarly, when the panelists were asked whether they had ever been represented by prosecutor Woodson, both Stinnett and Woodson had again remained mute. (In affidavits filed in the federal district court, Stinnett and Woodson maintained that, after the divorce, neither of them had considered Stinnett to be “related” to Meinhard any longer. In addition, Stinnett said that she did not think Woodson had “represented” her, since the divorce was uncontested, and Woodson only “drew up the papers.” Woodson said that, while he knew Stinnett had been divorced from Meinhard, he had not remembered handling their divorce.) Though the district court ordered a hearing to investigate further, the 4th Circuit intervened and, ultimately, decided that there was no need. Chief Judge J. Harvie Wilkinson III ruled that the whole issue had been waived. Williams’s appointed lawyer should have raised these claims at the state habeas, and could have done so had he only exercised more “diligence,” Wilkinson ruled. Well, statutes and precedents do require that the lawyer use “due diligence” — the 4th Circuit didn’t make that up. But in what sense had Williams’s lawyers failed to act with due diligence? Williams’s state habeas counsel had actually requested appointment of an investigator — in order to look into an entirely different allegation of juror misconduct — and the request had been denied. Only after the federal court appointed an investigator for that purpose did Williams inadvertently stumble upon the information that had been improperly withheld from him by the forelady and the prosecutor throughout his trial. You won’t believe me if I paraphrase Wilkinson’s reasoning, so I’ll quote verbatim: “The documents supporting Williams’s … claims have been a matter of public record since Stinnett’s divorce became final in 1979. Indeed, because Williams’s federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well.” Wilkinson was evidently saying that Williams’s appointed counsel in the state habeas, in addition to poring over the record and compiling all the legal arguments for a capital appeal within the 120-day period allotted under Virginia law, should also have been combing through 20 years’ worth of court records on the off chance that they might reveal that one of the 12 jurors had failed to mention during jury selection that she had been married to a witness. (Wilkinson declines to comment on his ruling or on the Supreme Court’s unanimous reversal.) Before his appointment to the appellate bench, Wilkinson had been a law professor at the University of Virginia and a deputy assistant attorney general in the Reagan Justice Department, where he was, among other things, a judge-picker. Accordingly, like many appellate judges, Wilkinson does not appear to have ever tried a criminal case as an attorney, nor has he ever presided over one as a trial judge. So it’s at least conceivable that his ruling reflected mere ignorance, rather than intellectual dishonesty. On the other hand, the Williams decision did not come out of the blue. In an unsigned ruling in the case of Tommy David Strickler in 1998, the 4th Circuit employed a very similar maneuver. There, it imagined an improbable series of actions that an appointed counsel could have taken whereby he might have unearthed exculpatory evidence that prosecutors had indisputably failed to provide in violation of their constitutional obligations under the Supreme Court’s landmark 1963 opinion in Brady v. Maryland. Though the Supreme Court affirmed Strickler’s conviction for other reasons, eight justices joined the portion of the opinion that rejected the 4th Circuit’s attempt to excuse the Brady violation by faulting Strickler’s counsel. (Justice Clarence Thomas did not express an opinion on that aspect of the ruling.) The 4th Circuit’s penchant for excusing Brady violations by positing that a clairvoyant appointed counsel could have discovered the concealed evidence himself — an approach with no parallel in any other circuit — evolved gradually. It is, therefore, hard to credit the doctrine to a single author. But one important practitioner has been Judge J. Michael Luttig, who served on the panel that issued the unsigned ruling in Strickler and who also wrote the 1996 ruling in the case of Ronald Lee Hoke, Sr. — one of the most dramatic early applications of what I’ll call the “due clairvoyance” doctrine. A former law clerk to then-circuit judge Antonin Scalia and then-chief justice Warren Burger, Luttig, 45, is often mentioned as a potential Republican Supreme Court nominee. Before assuming the appellate bench, Luttig was an assistant counsel in the Reagan White House, and a high-level Justice Department official and judge-picker under President George Bush. Like Wilkinson, he has never tried anything resembling a capital case, nor has he ever presided over any criminal case as a trial judge. Shortly after Hoke’s release from a mental hospital, Hoke murdered Virginia Stell in Petersburg, Virginia. About ten days later he flagged down a police cruiser and confessed. He said he had met Stell at a bar called the European Restaurant. They had gone to her place, according to Hoke’s confession, had had vaginal sex, and then, at Stell’s suggestion, anal sex as well. After Stell slapped him over some transgression, he flew into a rage, tied her up, and stabbed her to death. As horrible as that confession was, such a crime would probably not have been punishable by death under Virginia law because it did not seem to implicate any of the requisite statutory triggers. Indeed, the first prosecutor did not charge the case as a capital crime. But after an election, a new prosecutor was assigned to the case. He did demand the death penalty. Indeed, he refused to plea-bargain for anything less, explaining to Hoke’s trial lawyer that “he wanted to be the first black man to put a white man in the electric chair,” according to testimony later credited by the federal district judge. (The prosecutor, Joseph Preston, was black; Hoke and Stell were white.) Preston theorized that Hoke had actually raped and sodomized Stell while she was tied up, which would clearly elevate the murder to the capital level under Virginia law. Indeed, Stell’s body was found in a position consistent with having been sodomized. On the other hand, almost no medical evidence of rape or forcible sodomy was presented at trial. (Later, at the federal habeas corpus proceeding, each side called a pathologist who offered conflicting opinions on the issue of consent.) At trial the prosecutor argued to the jury that Stell was a “kind” lady who “opened up her heart” to Hoke, and who had, therefore, welcomed him into her “sacred home.” The implication was that the 56-year-old Stell would never have consented to have sex with Hoke, let alone asked for anal sex. Suspecting that Stell was less prudish than the prosecution maintained, Hoke’s lawyer had visited the European Restaurant two to four times before the trial, and had interviewed five to seven witnesses. But he obtained little cooperation and, indeed, met with outright hostility, including at least one physical threat. Hoke was convicted, his conviction was affirmed, and his state habeas was denied. At a federal habeas corpus proceeding, examining, among other things, the prosecutor’s alleged racial remark about why he wouldn’t plea-bargain, the prosecutor continued to describe Stell as “one of the nicest little ladies in the community.” But then, at the federal district judge’s order, the state turned over its police files in the case. Among them were numerous witness statements that had never been provided to Hoke’s trial counsel. One witness had commented that Stell took lots of men home where she “fucked them and let them have a bath.” Three other witnesses, when pressed by police, had admitted that they themselves had had sex with Stell — one of them on 15-20 occasions. This last witness said that he had had oral, vaginal, and anal sex with Stell; Stell had suggested the anal sex, he said, and had brought along a jar of Vaseline for the purpose. Finally, yet another witness said she had actually seen Stell and Hoke “hugging and kissing” as they left the bar a day or two before Stell’s body was discovered. The district judge ordered a new trial for Hoke, due to the concealment of these textbook examples of Brady material, but the 4th Circuit, by a 2-to-1 vote, reversed. Judge Luttig found that the state’s failure to provide those statements didn’t matter, because the evidence had always been “available” to Hoke in the sense that “Hoke likely would have discovered [it] if he had undertaken a reasonable and diligent investigation.” Luttig also expressed the view that the withheld information was of doubtful relevance in any event, noting that the only witness who claimed to have had anal sex with Stell had used Vaseline as a lubricant, whereas Hoke and Stell had used margarine. Hoke was executed in 1996. Like Wilkinson, Luttig declines to discuss particular cases. Luttig protests, however, the notion that he or any other 4th Circuit judge might have any sort of hidden agenda in capital cases generally. “This is all governed by Supreme Court precedent and federal statute,” he said in an interview. “You may have a difference of opinion over the particular resolution of a particular case, but for the most part the standards are in place.” Luttig also emphasizes that appellate judges know that capital cases are frequently reviewed by the Supreme Court, which is “a huge deal to a federal judge.” Nevertheless, Luttig professes no memory of the Court’s 8-to-0 rebuke regarding his reasoning in the Strickler case. “Strickler was affirmed,” he says, “by a 7-to-2 vote, wasn’t it?” Strickler’s lawyers had actually asked Luttig to recuse himself from Strickler’s case, arguing that Luttig may have been biased because of his own tragic personal experiences. In 1994 Luttig’s father was shot to death in his own driveway in Tyler, Texas, during a carjacking. (The Strickler case also involved a carjacking.) Luttig rebuffed the request and, I think, properly so. Luttig’s personal appreciation of the full horrors of murder should not disqualify him from hearing capital cases any more than it should have disqualified Chief Justice Earl Warren, who was among those who established the Brady precedent in 1963. In 1938, when Warren was the Alameda County district attorney in Oakland, Calif., a burglar stole into his father’s kitchen and crushed his skull with a lead pipe. The murderer was never caught. The incident does not appear ever to have clouded Warren’s judgment. No, what should disqualify Luttig and Wilkinson from capital cases is that they have a proven track record for intellectual dishonesty in such cases — whatever the cause. Enough is enough.

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