Letter From The President Of The New York County Lawyers' Association

2005-09-01 00:00

To The Readers Of The Metropolitan Corporate Counsel:

Recently, at the ABA's annual meeting in Chicago, Supreme Court Justice Stephen G. Breyer, when asked about his experience during his congressional confirmation, retorted that the question was like asking a chicken how it feels about chicken à la king. One bar leader compared Congress's approach to legislation affecting the judicial system to a sausage factory. As Congress returns from its summer recess, we are likely to see palpable evidence of these two analogies. Sadly, with public attention riveted to the confirmation proceedings for Supreme Court nominee John G. Roberts, Congress is inexorably grinding out insidious legislation that strikes at the heart of American liberty: a mindless assault on the writ of habeas corpus.This should be of grave concern to the entire legal profession and all who value access to justice.

In 1996, when Congress enacted the Anti-Terrorism and Effective Death Penalty Act (AEDPA), it vastly limited the availability of federal habeas corpusrelief. That statute imposed a strict statute of limitations for the filing of habeaspetitions by state inmates, mandated that federal courts defer to state court factual determinations in adjudicating federal constitutional claims unless they are found to be "clearly erroneous" and prohibited federal courts from overturning even erroneous state court legal determinations unless they are "contrary to or involved an unreasonable application" of "established Supreme Court precedent."

These restrictions imposed enormous obstacles to obtaining federal relief from unjust convictions.Nevertheless, the writ has remained a viable avenue of last resort for state inmates wrongly convicted and condemned to long prison sentences or death row. Now, fewer than ten years after AEDPA, just as the federal courts have carefully crafted a body of law balancing the congressional goal of limiting habeasrelief with the historic function of the federal courts as guarantors of our core constitutional rights, congressional forces are plotting a legislative initiative that will effectively render the writ a dead letter.

S. 1088, now under consideration by the Senate Judiciary Committee and misleadingly entitled the "Streamlined Procedures Act of 2005," would seriously undercut the availability of habeas corpusrelief for state prisoners whose constitutional rights have been violated and who, in many cases, have been wrongly convicted. The legislation limits the federal judiciary's authority to redress injustice, as well as the constitutional protection for all Americans.

Among the more pernicious aspects of the proposed legislation is an astonishing provision barring relief in any death penalty case, no matter how egregious the constitutional error, if the U.S. Attorney General has certified that the state complied with minimum standards for providing court-appointed counsel. The idea that the nation's chief law enforcement officer, rather than the courts, has the power to determine whether a state's death penalty system passes constitutional muster is ludicrous, particularly in light of that office's history of supporting state capital prosecutions.

The proposed legislation would overrule well-established Supreme Court precedent concerning claims that were arguably raised improperly or in an untimely manner. Thus, if the accused failed to raise the claim because of misconduct by the prosecutor or constitutionally deficient performance by defense counsel, Supreme Court precedent permits federal review of the claims. The author of one of the principal exceptions to the procedural default doctrine(Wainwright v. Sykes, 1977) is the conservative and strict constructionist Chief Justice William H. Rehnquist.

To appreciate just how draconian the consequences of this proposed legislation may be, it is notable that in New York, a state traditionally in the forefront of providing equal access to justice, the state courts' record has been spotty, at best, in redressing post-conviction claims. Trial courts routinely deny post-conviction relief and the Appellate Divisions even less frequently grant leave to appeal from those denials.

Furthermore, in light of two key aspects of New York's post-conviction regime, further restrictions on access to the federal courts are certain to result in manifest injustice. Under New York law, if the Appellate Division declines to grant the defendant leave to appeal a trial court's denial of a collateral attack, i.e., a post-direct appeal application for a new trial, there is no redress available in the state's Court of Appeals. Additionally, except in capital cases (now a moot point in New York since the death penalty statute was struck down), the indigent have no right to appointed counsel in order to pursue collateral relief in state court. Thus, most collateral claims are presented by inmates who are proceeding pro se and, consequently, there is an overwhelming likelihood that they will commit the kind of default that can jeopardize federal review of their claim.

The proposed legislation would insure that such claims, no matter how worthy, can never be adjudicated on the merits. In recent years, there have been innumerable revelations of unjust convictions and to squelch the one remaining avenue to correct injustice is simply wrong. Moreover, to strip the federal courts of their historic jurisdiction to enforce the Constitution is nothing less than a direct assault on the independence of the judiciary.

Rather than shaking our heads in dismay, all lawyers should communicate their views about this congressional sausage machine to Congress and the public. I am pleased that on July 26, NYCLA's Executive Committee voted unanimously to oppose S.1088 and promptly expressed the Association's grave concerns to the Senate. We are eager to work with other groups to oppose this ill-conceived effort to limit the power of the judiciary to safeguard the fundamental rights embodied in our Constitution and Bill of Rights. Please contact NYCLA at info@nycla.org.

Sincerely,

Norman Reimer