The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting. The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences. Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.
The facts of Jae Lee are not in dispute. In 1982, Mr. Lee legally immigrated to the United States from South Korea. Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur. As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws. If convicted, Mr. Lee would immediately become deportable. Unfortunately for Mr. Lee and his family, the case against him was also very strong.
After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence. Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported. On the basis of that advice, Mr. Lee decided to plead guilty.
Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong. Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result. Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.
Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel. Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail. First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms. Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance. Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.
Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice. Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3] Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants. Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still. Specifically:
“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’ What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway. Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]
The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7] After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.” Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.
The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily. As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8] Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:
By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.
This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:
when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].
Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).
Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.
[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).
[7]ComparePilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).
[8]DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).
Across the world, whether people who have been accused of committing crimes should have the right to an attorney is something of a disputed question. Certainly, North Korean “Supreme Leader” Kim Jong-un, Turkish dictator Recep Erdogan, and any number of other modern fascists hold strong views on the matter. In America, however, the answer to this question has long been settled by the Sixth Amendment to the United States Constitution, which declares with unmistakable clarity that: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.”
Case Update: On August 30, 2016, the U.S. Supreme Court ordered the State of Tennessee to file a response to the petition for writ of certiorari filed in this case by defendant Terry Norris. The State’s response was filed on September 29th, and it is accessible here. Mr. Norris’s petition for writ of certiorari was also featured as the “petition of the day” on SCOTUSblog last Friday.
Statistically speaking, the Supreme Court’s request for a response from the Tennessee Attorney General raises the likelihood that the court will accept this case for review from approximately 1% to roughly 10%-20%. If granted, Norris v. Lester will be one of the most significant cases to reach the U.S. Supreme Court out of Tennessee in recent history.
In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy. The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1] Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.
Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2] As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours. If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it. If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.
The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures. In the 1991 case County of Riverside v. McLaughlin,500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional. Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place. However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:
“First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]“
This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring. There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted. Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).
[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).
[3]The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.
[4] Horwitz, supra, at 522–23 (citations omitted).
This Sunday evening, veteran Wisconsin defense attorneys Dean Strang and Jerry Buting – the trial lawyers who became overnight sensations following the release of the award-winning Netflix documentary “Making a Murderer” – arrived in Nashville to talk criminal justice reform. The wide-ranging discussion – billed as “A Conversation on Justice” – touched upon several aspects of America’s poorly-functioning criminal justice system from juvenile interrogation to legal ethics. Most prominently featured, however, was a plea to improve the sorry state of indigent defense in the United States.
“If we are going to keep putting as many people in prison as we do now,” Strang told the sold-out TPAC auditorium, “then we are at least entitled to a reliable determination of guilt.” (The United States has roughly 5% of the world’s population, but nearly a quarter of the world’s prisoners.) Buting concurred. Compensated at just $40 per hour, “Wisconsin’s appointed criminal defense attorneys are the lowest-paid lawyers in the entire country,” he claimed. For context, Strang added that “it costs me eighty dollars per hour to keep my law firm’s lights on.”
As moderator Stacey Barchenger – who covers the courts and criminal justice beat for The Tennessean – intimated in response, the state of indigent defense in Tennessee is not much better. In fact, for several reasons, it’s considerably worse. And the consequences for society – wrongful convictions and a two-track justice system for the rich and poor – are deplorable.
As any casual observer of American crime drama knows, (almost) everyone in the United States who is accused of committing a crime has the right to an attorney.[1] Additionally, if a person cannot afford an attorney (and more than 80% of defendants fall into this category), then an attorney will be provided at taxpayer expense. Whether a defendant receives a public defender (a lawyer who is employed full time by the government to represent poor defendants) or an appointed attorney (who is typically, but not always, a solo practitioner) depends on a variety of factors including geography, prior criminal history, and whether there is more than one defendant involved in a particular case. Although different in several important ways, the pressures facing public defenders and appointed counsel due to inadequate funding – as well as the consequences of those pressures on poor defendants – frequently overlap.
The right to counsel in state criminal cases – guaranteed by the Sixth Amendment to the United States Constitution and incorporated against the states via the Fourteenth – traces back to the Supreme Court’s landmark 1963 decision in Gideon v. Wainright.[2] Subsequently, the Supreme Court further established that the right to counsel was not merely intended to provide criminal defendants with the euphemistic “warm body with a law degree”; instead, the Sixth Amendment is supposed to guarantee the accused a right to “the effective assistance” of counsel as well.[3]
“In practice,” however, “for a variety of reasons, the impact of Gideon has never come anywhere close to reaching its aspirational goals.” See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harvard Latino L. Rev. __, n. 41 (forthcoming 2016), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757799. Although multifaceted, the main reason why the right to competent counsel has remained so illusory for indigent defendants more than fifty years after Gideon is simple: the American public just isn’t willing to pay for it. Dollar for dollar, taxpayers would prefer to spend their money on virtually anything in the world before paying for free attorneys for poor people who have been accused of committing crimes. Accordingly, the funding that has been appropriated for indigent defense has never even approached the amount that is actually necessary to afford poor people a meaningful opportunity to defend themselves.
The solutions to this problem, however, are somewhat more complex. Given the profound unpopularity of criminal defendants – and given that poor people cannot afford to hire lobbyists and generally do not have a receptive audience in most (if any) state legislatures – adequate funding for indigent defense is never likely to come voluntarily. Instead, courts must embrace their role as enforcers of constitutional rights and either order legislatures to appropriate sufficient funding for indigent defense or refuse to allow prosecutions to go forward until such funding has been provided. Public Defenders – many of whom handle hundreds of cases at a time – must also begin pushing back against courts that tolerate inadequate funding by refusing to take on caseloads that exceed ethical standards. And when both legislatures and courts fail to meet their obligations, advocates need to sue them. Frustratingly, although reformers do achieve the occasional victory in this regard, successes are usually short-lived, and they are always a long time coming.
For its part, though, Tennessee’s nearly wholesale abdication of its responsibility to ensure that poor defendants receive effective representation provides a fantastic case study on how to run an indigent defense system in a way that virtually guarantees it will fail. Although funded by the General Assembly, the compensation rate for appointed counsel in Tennessee is set by the Tennessee Supreme Court. Specifically, Tennessee Supreme Court Rule 13 provides that “[t]he hourly rate for appointed counsel in non-capital cases shall not exceed forty dollars ($40) per hour for time reasonably spent in trial preparation and fifty dollars ($50) per hour for time reasonably spent in court.” This rate has also been unchanged since 1994, meaning that appointed lawyers for poor defendants are typically the lowest paid professionals in the courtroom. (In contrast, Tennessee’s judges are paid rather handsomely; based on a just-published survey of judicial salaries conducted by the National Center on State Courts, salaries of Tennessee Supreme Court Justices currently rank twelfth-best in the nation, while salaries for judges who sit on lower appellate courts and in trial courts rank ninth.)
There are several obvious problems with Tennessee’s appointed counsel compensation arrangement that are worth highlighting.
First, there is no justifiable basis for compensating “time reasonably spent in trial preparation” less than “time reasonably spent in court.”[4] Trial preparation – including meeting with defendants, interviewing witnesses, preparing pre-trial motions, conducting legal research, investigating mitigating circumstances, filing discovery requests, and any number of other activities that are essential to effective trial advocacy – are every bit as important as time physically spent in court.[5] Longstanding U.S. Supreme Court precedent also supports this reality. As far back as 1932, for example, the Supreme Court observed that a criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him” – not merely at trial – and that “[w]ithout it, though he be not guilty, [a defendant] faces the danger of conviction because he does not know how to establish his innocence.”[6]
Even so, Tennessee remains one of six states in the United States to pay a reduced hourly rate for trial preparation.[7] And because lawyers respond to financial incentives much like other humans, that disparity creates an economic incentive to maximize time spent in court and minimize time spent out of court. For example, when New York’s disparate compensation scheme – $40 per hour for in-court work and $25 per hour for out-of-court work – was struck down as unconstitutional back in 2003, the reviewing court did so in part on the basis that “[t]he lower rate paid for out-of-court time, in particular, operates as a substantial disincentive to perform” many of the pre-trial tasks that are essential to a defendant’s representation.[8]
A second problem is that Tennessee’s appointed counsel compensation rate – a maximum of $50 per hour – is far too low. To the minimum wage worker or the service employee making just a fraction of that per hour, that assertion likely strikes a nerve. But factoring in the fact that the “rate of compensation does not take into account the various overhead costs associated with the practice of law, which include the costs of reference materials, office equipment, rent, travel, malpractice insurance and, for most young attorneys, student loans” – not to mention payroll expenses for office staff – the picture becomes a great deal less rosy.[9] For example, a 2008 survey found that the average annual overhead cost of running a small law firm was $160,000 per lawyer, which roughly translates to overhead expenses of $80 per hour assuming 2,000 billed hours per year.[10] Accordingly, as Strang himself lamented: “I’m subsidizing the State of Wisconsin’s prosecution of my own clients to the tune of forty dollars an hour every time I take an appointed case.”
Compared with private counsel – whose standard hourly rates (summarized here by the Laffey Matrix) are often 10 to 20 times higher than Tennessee’s appointed compensation rates – this disparity becomes especially pronounced. But even confined to the universe of appointed criminal defense work, Tennessee’s compensation rate lags substantially behind other jurisdictions. For example, Alabama pays its appointed criminal defense attorneys $70 per hour. Arkansas pays them $50-$90 per hour. South Dakota musters $84. And compensation rates for non-capital federal cases – which are funded separately by the Federal Criminal Justice Act – currently stand at $129 per hour. In fact, on a national scale, Tennessee’s appointed attorneys are arguably paid the second-lowest effective rate in the entire country.[11] Add in the fact that non-attorney staff members in the Administrative Office of the Courts occasionally deduct appointed attorneys’ bills on the basis that they spent too long on a given task, it’s no wonder that Tennessee’s appointed compensation scheme is held in such universal disregard by those involved in it.
Third, and most egregiously, Tennessee’s compensation rates are capped at set maximums. With few exceptions, attorney compensation is limited to $1,000 for misdemeanors and $1,500 for felonies. The result of such caps is that after attorneys have spent approximately twenty to thirty hours on a given case, they immediately begin losing money. Thus, if an attorney is to make a decent living taking appointed cases, then the only feasible way to do so is to maximize the number of cases cleared before a case’s compensation limit has been reached—a strategy that is not-so-fondly referred to as “meet ‘em and plead ‘em.” It also goes without saying that given the seriousness and complexity of criminal cases – not to mention the severity of their potential consequences – many clients’ cases cannot reasonably be concluded in thirty hours. Especially under circumstances when a client is innocent and wants to go to trial, criminal cases can and often do take years to complete.
Predictably, this capped compensation arrangement can introduce deeply troubling and profoundly perverse incentives into an indigent defendant’s representation. By placing enormous financial pressure on attorneys to conclude cases immediately once they have reached the maximum compensation limit (usually via a plea bargain), the caps create a serious conflict of interest between attorneys and their clients that probably violates Rule of Professional Responsibility 1.7(2) (“a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer.”). As a consequence, indigent defendants all-too-often do not get the zealous advocacy and effective representation to which they are supposed to be constitutionally entitled.
The results of such idiosyncrasies – (1) disparate pay between in-court and out-of-court work; (2) low compensation rates; and (3) per-case caps on compensation – are measurably terrible for criminal defendants. The rate of wrongful convictions even in death penalty cases is conservatively estimated to be about 4.1%. This estimate is even more horrifying given that multiple exceptions (such as higher compensation rates, lifted compensation caps, and dual appointments of attorneys who are required to have significant trial experience) are routinely permitted when the death penalty is at stake. Accordingly, one might reasonably expect that the wrongful conviction rate for less serious criminal cases is significantly higher.
On a broad scale, extensive evidence also indicates that “those with publicly funded counsel are [both] more likely to be convicted than those with privately paid attorneys” and more likely to receive longer sentences.[12] Clients represented by salaried public defenders (who – although similarly underfunded – at least have “steady salaries, financial and institutional independence”) also enjoy measurably better outcomes than clients represented by appointed attorneys, who regularly experience the perverse incentives described above.[13] Accordingly, like the rest of the country, Tennessee boasts a two-track justice system that is definitely not based exclusively on determining guilt versus innocence. Instead, it has one justice system for the rich, and another for the poor.
Happily (potentially), the Tennessee Supreme Court has recently launched an Indigent Representation Task Force with the supposed goal of fixing these problems. It is not clear, however, what this task force expects to discover. When the results are ultimately announced, nobody will be surprised to learn that Tennessee’s decision to fund indigent defense at very nearly the lowest rate in the nation results in terrible outcomes for poor people. Even if the task force decides to recommend changes to Tennessee’s compensation system, the recommendations are most likely to track those that were previously advanced by the Tennessee Bar Association and other interested organizations back in 2004. The notion that any of the problems being considered during the Task Force’s “listening tour” are new or unknown, however, is farcical. The topic of indigent defense is well understood, and it has been studied extensively both locally and nationally on too many occasions to count.
If Tennessee is serious about fixing its indigent defense system – and for now, there is no real indication that it is – then the solutions are simple but politically unpopular. At a minimum, Tennessee’s compensation rates need to double, the compensation caps need to be lifted, and the disparity between in-court and out-of-court work needs to be done away with for good. Public Defenders’ offices also need to be funded at a rate that permits attorneys to keep their caseloads below defined national standards. Whether any of these reforms will actually be put into effect, however, only time will tell. Until then, poor defendants in Tennessee will continue to serve as data points in a human trial aimed at determining how to provide the least effective criminal representation possible, and sadly, almost nobody will care.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Contrary to popular belief, everyone accused of a crime does not actually have the right to an attorney. Instead, the right to counsel attaches only when a defendant is charged with a felony, see Gideon v. Wainwright, 372 U.S. 335 (1963), or when actual incarceration is imposed. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); Scott v. Illinois, 440 U.S. 367, 373–74 (1979) (“the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”) (emphasis added). Thus, accused misdemeanants can and often do go unrepresented, resulting in significant collateral consequences that the justice system has never adequately addressed.
[3]United States v. DeCoster, 624 F.2d 196, 290 n. 129 (D.C.Cir.) (en banc) (Bazelon, J., dissenting); Strickland v. Washington, 466 U.S. 668, 687 (1984) (“the proper standard for attorney performance is that of reasonably effective assistance.”).
[4]See generally, John P. Gross, Gideon at 50: A Three-Part Examination of Indigent Defense in America, Part I 12-13, Indigent Defense Counsel of the National Association of Criminal Defense Lawyers (March 2013), https://www.nacdl.org/reports/gideonat50/rationingjustice/.
[10]Id. at 16 (citing Altman Weil, Survey of Law Firm Economics: Trend Comparison of Overhead Expenses (2003)).
[11] Wisconsin and Oregon respectively compensate their attorneys at $40 per hour and $45 per hour independent of what work is being performed, but unlike Tennessee, neither state imposes maximum compensation limits, which have the consequence of reducing the effective compensation rate realized. See Gross, supra, at 29 & 32. However, attorneys in Cook County, Illinois receive $40 per hour in court and $30 per hour out of court, with maximum compensation caps even lower than Tennessee. Id. at 22. Some jurisdictions have flat fee rates or higher hourly rates but lower compensation caps, however, making cross-jurisdictional comparisons somewhat difficult. Id. at 20-32.
[12] Erwin Chemerinsky, The Case Against the Supreme Court 147 (2014).
[13] James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes, 122 Yale L.J. 154, 188 (2012).
In a recent petition for writ of certiorari filed with the United States Supreme Court, a Tennessee defendant represented by Kirkland & Ellis – a white shoe law firm based in Washington, D.C. – has presented a direct challenge to the Memphis Police Department’s once-pervasive “48-hour hold” policy. The defendant’s cert. petition draws heavily on legal scholarship published by this author and by University of Memphis Law Professor Steven Mulroy in 2015 and 2013, respectively.[1] Both law review articles condemn as unconstitutional the practice of arresting suspects without a warrant and intentionally delaying their right to a hearing before a judge so that law enforcement can use the delay to gather additional incriminating evidence.
Until recently, such 48-hour investigative holds were utilized regularly throughout Shelby County, with some estimates indicating that they were carried out approximately 1,000 times per year.[2] As a general rule, suspects who were subjected to the Memphis Police Department’s “hold” policy would be arrested without a warrant on suspicion of having committed a crime, and they would then be interrogated by law enforcement for the next 48 hours. If additional incriminating evidence was discovered in the interim, then the individual would be brought in front of a magistrate for a “Gerstein hearing”: a constitutionally required proceeding in which a judge or magistrate reviews the legitimacy of a warrantless arrest to ensure that the arresting officers had probable cause to make it. If additional incriminating evidence was not discovered, however, then the officers would typically let the suspect go.
The primary problem with such a practice, however, is that it violates the Fourth Amendment’s prohibition against unreasonable seizures. In the 1991 case County of Riverside v. McLaughlin,500 U.S. 44, 56 (1991), the U.S. Supreme Court made clear beyond any doubt that intentionally delaying a suspect’s Gerstein hearing “for the purpose of gathering additional evidence to justify the arrest” is unconstitutional. Notwithstanding this unambiguous declaration, however, some courts – including the Tennessee Supreme Court – have repeatedly turned a blind eye toward law enforcement’s illicit use of “investigative holds” so long as it was ultimately determined that the arresting officers had probable cause to make the arrest in the first place. However, as this author details in his (award-winning!)[3] 2015 Memphis Law Review article: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, this holding is in error for five separate reasons:
“First, this conclusion confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a probable cause determination made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement initially established by the Supreme Court in Gerstein and subsequently reaffirmed in McLaughlin, which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, such a holding renders McLaughlin‘s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests that are unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to evade judicial review of any kind, this holding substantially diminishes the value of the check on law enforcement that Gerstein was meant to provide.[4]“
This is the second year in a row that investigative holds have reached the steps of the Supreme Court, with a similar petition for writ of certiorari having been filed by two veteran Supreme Court litigators last Spring. There is also an existing (and growing) Circuit split on the issue, which significantly raises the likelihood that the pending petition will be granted. Given the vanishingly small number of cases accepted by the Supreme Court each term, however, and given that the Court is currently short-staffed as a consequence of the U.S. Senate’s unprecedented refusal to hold confirmation hearings for Supreme Court nominee Merrick Garland, the likelihood of any individual cert. petition being accepted for review remains minuscule.
Questions about this article? Email Daniel Horwitz at [email protected].
[1] Daniel A. Horwitz, The First 48: Ending the, Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin, 45 U. Mem. L. Rev. 519 (2015), available at https://works.bepress.com/daniel_horwitz/3/; Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815 (2013).
[2] Horwitz, supra at 529 (citing Mulroy, supra, at 846).
[3]The First 48 was selected as a “must-read” publication by the National Association of Criminal Defense Lawyers’ “Getting Scholarship into Court Project” and featured in the June 2015 edition of The Champion magazine.
[4] Horwitz, supra, at 522–23 (citations omitted).
In a 3-1 decision, the Tennessee Supreme Court has ruled that petitions for writ of error coram nobis filed pursuant to Tenn. Code Ann. § 40-26-105 can no longer be used to challenge guilty pleas. The Court’s decision in Frazier v. State formally overturns its prior decision in Wlodarz v. State,[1] which the Court decided on precisely the same issue just four years ago.
Frazier marks yet another step in the Court’s increasingly activist efforts to overturn past precedent and eschew stare decisis in cases that bolstered the rights of the accused under Tennessee law. Following the recent departure of Justices Gary Wade and Janice Holder, the Tennessee Supreme Court’s new conservative majority has aggressively sought to limit and overturn earlier rulings that established protections for criminal defendants—even, in some instances, when both the government and defendants agreed that certain rights existed.[2] The Court’s recent decisions following this approach have run the gamut from issues involving jury instructions to narrowing the means by which defendants are permitted to prove that they suffer from an intellectual disability. Perhaps most controversially, however – at least for the moment – in May 2016, the Court issued its decision in State v. McCormickon the “community caretaking doctrine,” which created a new exception to the warrant requirement in Tennessee and overturned the Court’s prior decision in State v. Moats on the very same question barely three years earlier.[3]
The specific issue involved in Frazier was Tennessee’s coram nobis statute, which is codified at Tenn. Code Ann. § 40-26-105. Coram nobis is a venerable common law writ dating back to sixteenth century England that has been used throughout the United States to cure injustice when no other procedural mechanism was available. Perhaps the most famous example of the writ’s issuance in recent history is the posthumous exoneration of George Stinney Jr. in 2014– a 14-year-old black child who was executed in South Carolina in 1944 after being convicted of a capital crime that he did not commit. Broadly speaking, however, from a historical perspective, “the common law writ of error coram nobis has served as a ‘gap-filler’ which was invoked ‘to rectify a recognized wrong when all other possible remedies [we]re no longer available.’”[4]
Frazier involved a defendant who pleaded guilty to second degree murder in 2004. In 2011, he sought coram nobis relief from his conviction based on newly discovered evidence. It is not clear from the court’s opinion what the newly discovered evidence was, but suffice it to say that defendants sometimes do plead guilty to crimes that they did not commit or plead guilty for other reasons that are unrelated to their guilt. As a result, most people agree that some type of relief should be available to defendants who can make a credible showing that they are innocent of a crime for which they pleaded guilty, were unlawfully coerced or threatened into pleading guilty, or pleaded guilty as a result of some other constitutional infirmity. Based on a variety of limitations that require defendants to assert such claims quickly after their pleas are accepted or else lose them forever, however, there is often no procedural mechanism available to defendants who seek to prove the illegitimacy of a guilty plea several years after it was entered. Thus, in such situations, it is natural for a defendant to turn to the writ of error coram nobis for relief when no other remedy is available.
The only question at issue in Frazier was “whether a criminal defendant who pleads guilty may later attack that plea by seeking error coram nobis relief.”[5] The uncertainty arose out of Tenn. Code Ann. § 40-26-105’s use of the word “trial” – rather than a more general term like “hearing” or “proceeding” – which at least plausibly lends itself to the conclusion that guilty pleas were intended to be excluded from the statute’s ambit. Specifically, the relevant section of Tennessee’s coram nobis statute provides:
The relief obtainable . . . shall be confined to errors [outside] the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial.[6]
In 2012, however, this uncertainty was resolved by the Tennessee Supreme Court in Wlodarz v. State, which held without equivocation that: “a writ of error coram nobis is available to challenge a guilty plea . . . .”[7] In Wlodarz, the Court explained in a lengthy section entitled “Guilty Plea Proceeding as a Trial” that “[n]umerous authorities interpret the term trial broadly.”[8] The Court’s majority also cited extensive precedent from the United States Supreme Court, the Tennessee Supreme Court, the Tennessee Court of Criminal Appeals, and the legal treatises American Jurisprudence and Corpus Juris Secundum to support that proposition.[9] Consequently, the Wlodarz court concluded that “[i]t is inappropriate, in our view, to trivialize a guilty plea proceeding by holding that it does not constitute a ‘trial.’”[10] The Court further observed that “[i]f this Court were to say that a guilty plea proceeding is not a trial and thus, not subject to the writ of error coram nobis, we would be the first to so hold, brushing aside centuries of tried and tested jurisprudence.”[11]
Importantly, no legislative changes of any kind were made to the coram nobis statute after Wlodarz was decided. At least to this author’s knowledge, the decision was not followed by any other legal or factual developments that might have caused the Tennessee Supreme Court to reconsider it, either. Instead, the only intervening fact of significance was a recent change in the composition of the Tennessee Supreme Court. Thus, without any particular reason for doing so, the current Court decided to grant review in Frazier “to reexamine the availability of the error coram nobis statute as a procedural mechanism to collaterally attack a guilty plea.”[12]
Upon review, a three-Justice majority explained that “[t]he plain and ordinary meaning of the term ‘litigated on [or at] the trial’ in the context of criminal prosecutions refers to a contested proceeding involving the submission of evidence to a fact-finder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal.”[13] The majority then recited that its “oath is to do justice, not to perpetuate error” – a familiar line invoked by courts when overturning established precedent – and further held that the value of stare decisis was limited in this instance because “Wlodarz is only a few years old.”[14] Accordingly, Frazier’s majority decision formally overruled Wlodarz and held that the term “trial,” as used in Tennessee’s coram nobis, must actually be construed narrowly.
In a short but hard-hitting dissent, Chief Justice Sharon Lee lambasted the majority for having dispensed with stare decisis so readily. She noted: “The principle of stare decisis, that the Court should follow precedential decisions, is ‘a foundation stone of the rule of law.’”[15] This foundation, she explained, “promotes consistency in the law and confidence in this Court’s decisions,” and it “gives firmness and stability to principles of law so that people may know their legal rights.”[16] Further, Chief Justice Lee observed:
We previously set out the circumstances when the Court may and should disregard stare decisis, overrule precedent, and overturn a settled rule of law: when there is obvious error or unreasonableness in the precedent; when a change in conditions makes the precedent obsolete; when adherence to precedent would likely cause greater harm to the community than would disregarding stare decisis; or, especially, when prior precedent conflicts with a constitutional provision. The Court should follow precedent unless an error has been committed, and it becomes plain and palpable. The Court may also revisit an earlier decision where experience with its application reveals that it is unworkable or badly reasoned. Here, none of those compelling reasons are posed.[17]
As noted in this article’s introduction, Frazier represents just another star in a constellation of recent judicial activism by the Court’s new conservative majority, which has all but rushed to overturn past precedent that bolstered the rights of criminal defendants. This pattern is also likely to continue. Coming down the pipeline, for example, the Tennessee Supreme Court recently granted review in State v. Tuttle by expressing its “interest[] in briefing and argument of the question whether this Court should revisit the continuing vitality of State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989).” Ten months ago, the Court also heard argument in State v. Reynolds, which may well result in Tennessee’s imminent adoption of its first-ever “good faith” exception to law enforcement misconduct. (Note: In the interest of full disclosure, this author participated in drafting an amicus curiae brief in Reynolds on behalf of the Tennessee Association of Criminal Defense Lawyers that opposed such a result.)
Jacumin represents one of Tennessee’s most celebrated state constitutional protections, requiring law enforcement officials in this State to establish a comparatively greater degree of confidence before obtaining search warrants. Based on the Court’s recent jurisprudence, however, Jacumin’s continued survival (and the survival of myriad other precedential decisions) seems unlikely. Regardless of the specific question involved, the Tennessee Supreme Court’s new philosophy is clear: no prior precedent bolstering the rights of the accused under Tennessee law – no matter how recent or long-established – stands on firm footing any longer.
Questions about this article? Email Daniel Horwitz at [email protected].
[2]See, e.g., State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015) (“we are not required to accept the State’s concession and decline to do so in this instance. . . . We are also not persuaded by Mr. Brown’s and the State’s interpretation of Rule 36.1, although we recognize that some panels of the Court of Criminal Appeals have embraced this interpretation of the rule.”).
[4] Daniel A. Horwitz, Revealing Disturbing Gap in Tennessee Law, Tennessee Supreme Court Rules that Allegedly Retarded Death Row Inmate Is Not Entitled to Prove that He’s Retarded, scotblog.org (Apr. 19, 2016), https://scotblog.org/2016/04/revealing-disturbing-gap-in-tennessee-law-tennessee-supreme-court-rules-that-allegedly-retarded-death-row-inmate-is-not-entitled-to-prove-that-hes-retarded/ (quoting Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012)).
[5]Frazier v. State, No. M-2014-02374-SC-R-11-ECN, 2016 WL 3668035, at *1 (Tenn. July 7, 2016).
Pervis Payne is a death row inmate in Tennessee who may well be mentally retarded. Significantly, both the United States and Tennessee Constitutions forbid the Government from executing mentally retarded people. In a unanimous 4-0 opinion, however, the Tennessee Supreme Court has ruled that under Tennessee law, Mr. Payne is not allowed to prove that he is mentally retarded to a court.
Pervis Payne was convicted of murder and sentenced to death in 1988. Thereafter, both the Tennessee Supreme Court and the U.S. Supreme Court ruled that under the Tennessee and U.S. Constitutions, executing mentally retarded people is cruel, unusual, and categorically forbidden. Additionally, in 1990, the Tennessee legislature enacted a law providing that: “Notwithstanding any law to the contrary, no defendant with mental retardation at the time of committing first degree murder shall be sentenced to death.”[1] Following these developments, an individual cannot lawfully be executed if the individual has:
(1) Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;
(2) Deficits in adaptive behavior; and
(3) The [individual’s] intellectual disability . . . manifested during the developmental period, or by eighteen (18) years of age.
Because all of these legal developments came only after Mr. Payne’s conviction, however, Mr. Payne has never had a hearing on the issue of his alleged mental retardation. Nonetheless, there is strong reason to believe that he is indeed mentally retarded. Among other indications, for example, Mr. Payne’s scores from multiple IQ tests administered between 1976 and 2010 all place him within or very near the range of mental retardation. Significantly, one IQ test that was administered when he was nine years old produced a raw IQ score of 69. If accurate, such a score would definitively establish Mr. Payne’s mental retardation so long as Mr. Payne could also prove that he has deficits in adaptive behavior.
After reviewing several of Mr. Payne’s IQ tests and evaluating Mr. Payne personally, Dr. Daniel J. Reschly—a professor of education and psychology at Vanderbilt University—recently stated in a sworn affidavit that Mr. Payne “has significant deficits in adaptive behavior due to substantial limitations in the conceptual skills and practical skills domain.” Based on Mr. Payne’s consistently low IQ scores, his deficits in adaptive behavior, and the fact that Mr. Payne has been intellectually disabled since he was a child, Dr. Reschly also concluded under oath that Mr. Payne satisfies the established constitutional criteria for mental retardation, which would prohibit the Government from executing him.
Armed with this evidence, on April 4, 2012, Mr. Payne’s attorneys attempted to invoke several different procedures under Tennessee law in an effort to win Mr. Payne an evidentiary hearing on his mental retardation claim. However, the trial court summarily denied all of Mr. Payne’s claims without holding a hearing. Ultimately, the case reached the Tennessee Supreme Court.
In adjudicating Mr. Payne’s case, the Tennessee Supreme Court was called upon to decide what procedural mechanism Mr. Payne might use to go about proving that he is mentally retarded. Unfortunately for Mr. Payne, however, the Tennessee Supreme Court ruled that as far as Tennessee law is concerned, no such procedure exists.
a. Standard Post-Conviction Claim
Under Tennessee law, the traditional procedure for challenging a conviction that has become final is to file a “post-conviction petition.” Post-conviction petitions are governed by Tenn. Code Ann. § 40-30-101, which is appropriately called the “Post-Conviction Procedure Act.” Because Tennessee law recognizes what the Tennessee Supreme Court has described as the Government’s “interest[] in preserving the finality of judgments,”[2] however, only certain claims are eligible for consideration. Specifically, in order to obtain post-conviction relief, defendants must prove that either their convictions or their sentences violate a right that is “guaranteed by the Constitution of Tennessee or the Constitution of the United States.”[3]
Notably, the Post-Conviction Procedure Act also imposes a strict one-year statute of limitations for filing post-conviction petitions. Specifically, Tenn. Code Ann. § 40-30-102(a) provides that absent exceptional circumstances, a defendant’s post-conviction petition must be filed “within one (1) year of the date on which the judgment became final, or [else] consideration of the petition shall be barred.” In more cases than not, this one-year statute of limitations operates to foreclose defendants from getting their claims into court at all regardless of their merit. Why, one might wonder? The answer is that most defendants in Tennessee are not aware of the strict one-year requirement, and since convicted defendants generally do not have the right to an attorney until after they have filed a post-conviction petition, they often learn about the one-year limitations period only after it has expired.[4]
With respect to the first requirement—that a conviction or sentence violate either the U.S. or Tennessee Constitutions—Mr. Payne’s claim unquestionably qualified. In December of 2001, the Tennessee Supreme Court held that “the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.”[5] Barely six months later, in June of 2002, the U.S. Supreme Court followed suit, holding that the Eighth Amendment to the U.S. Constitution “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”[6] Thus, because Mr. Payne asserted that his death sentence was unconstitutional in light of his mental retardation, this claim qualified for post-conviction review.
Unfortunately for Mr. Payne, however, these constitutional developments came more than a decade after he was convicted. Accordingly, the traditional one-year requirement for filing a post-conviction petition had long expired. As a consequence, Tennessee law prohibited Mr. Payne from having his post-conviction claim heard by a court unless he could “re-open” his post-conviction proceeding by proving that the new rule at issue applies retroactively.
b. “Re-opening” a Post-Conviction Claim Under Retroactivity Exception
The question of whether a new constitutional rule of criminal procedure applies retroactively is one of the most complex inquiries in constitutional law. It has also repeatedly befuddled the Tennessee Supreme Court, which has reversed itself on the issue at least four times in the past twenty years[7] only to arrive—in 2014—at a standard that conspicuously conflicts with the text of the standard that it was attempting to adopt.[8] During the intervening chaos, the Court of Criminal Appeals occasionally applied multiple retroactivity standards to defendants’ claims because it could not parse the Tennessee Supreme Court’s jurisprudence on the matter.[9]
At present, however, the statutory retroactivity standard codified in the Post-Conviction Procedure Act governs retroactivity claims.[10] This statute provides that new rules apply retroactively if they either: (1) “place[] primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “require[] the observance of fairness safeguards that are implicit in the concept of ordered liberty.” Confusingly, however, with respect to the second rule, the Court held in 2014 that the Tennessee legislature actually intended to adopt “the federal standard from Teague v. Lane,” rather than the “implicit in the concept of ordered liberty” standard that actually appears in the statute.[11] Thus, at present, the text of the second portion of Tenn. Code Ann. § 40-30-122 is to be ignored in favor of the second Teague v. Lane exception, which provides that retroactivity attaches to “new procedures without which the likelihood of an accurate conviction is seriously diminished.”[12]
Mercifully, the federal judiciary has held unmistakably that the Eight Amendment’s prohibition on executing mentally retarded people applies retroactively to all cases because it places the Government’s ability to execute a certain class of people beyond the Government’s power.[13] Consequently, there is no doubt that both the Tennessee Supreme Court’s December 2001 decision prohibiting the execution of mentally retarded people and the U.S. Supreme Court’s similar June 2002 decision apply retroactively to Mr. Payne. Accordingly, one might be forgiven for believing that Mr. Payne would be entitled to a hearing on his mental retardation claim.
Unfortunately for Mr. Payne, however, the aforementioned statute that allows defendants to “re-open” their post-conviction petitions when a new rule is retroactive also provides that even “if retrospective application of [a] right is required,” the petition to re-open the case “must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial[.]”[14] Whether it violates fundamental fairness to apply such a strict time limitation—or any time limitation—to mentally retarded people; and whether the Government is even permitted to leverage short, strict statutes of limitations in order to insulate itself from otherwise meritorious claims that the Government is attempting to act in excess of its constitutional authority are serious questions for another day. In this case, however, because Mr. Payne did not file his post-conviction petition until 2012, the court held that his claim was time-barred. Had he filed his claim at any time between December 2001 and June 2003, though, then there is absolutely no question that he would have been granted relief.
Undiscouraged, Mr. Payne’s attorneys also attempted to use the U.S. Supreme Court’s more recent decision in Hall v. Florida as the “hook” to allow him to get back into court. In Hall—which was decided in May 2014—the Supreme Court struck down Florida’s death penalty statute because it failed to account for standard error in a defendant’s IQ scores. According to the Supreme Court, such a rigid requirement “misuse[d] IQ score on its own terms[.]”[15] Thus, following Hall, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”[16]
Consequently, the question for Mr. Payne became whether the rule announced in Hall was retroactive, too. Given its recency, only two courts in the United States had addressed this issue at the time that Mr. Payne’s case was heard, and each reached a bitterly contested, 2-1 decision under the time-pressure of an imminent execution.[17] In both cases, a two-judge majority concluded that Hall was not retroactive because it merely established new procedures for determining whether a defendant was mentally retarded, rather than establishing another substantive restriction on punishment.
There are, however, strong reasons to doubt this claim. Most convincingly, Hall unquestionably restricted the universe of people that the Government is permitted to execute—a result that bears all the hallmarks of a substantive ruling. Specifically, before Hall, individuals with an IQ above 70 were subject to being executed. After Hall, however, some number of individuals with an IQ above 70 are constitutionally prohibited from being executed. Like Atkins, such a result is one of substance in that it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”[18]
Unfortunately, the Tennessee Supreme Court did not engage any of this analysis. Instead, it merely held that because Mr. Payne was unable to identify any “federal appellate decision holding that Hall must be applied retroactively to cases on collateral review,” the court “decline[d] to hold that Hall applies retroactively.” Consequently, Mr. Payne was not permitted to re-open his post-conviction proceeding on the basis of Hall’s retroactivity, either.
c. Writ of Error Coram Nobis
As an alternative to the post-conviction statute, Mr. Payne’s attorneys also filed a petition for writ of error coram nobis. Historically, the common law writ of error coram nobis has served as a “gap-filler” which was invoked “to rectify a recognized wrong when all other possible remedies are no longer available.”[19] In Tennessee, for example, the writ has been used to correct judgments upon the subsequent discovery of a factual error “which, if known at the time of judgment, would have prevented the judgment from being pronounced.”[20]
Subsequently, however, the Tennessee legislature enacted a coram nobis statute that significantly limited the writ’s application. Among other things, the legislature imposed a one-year statute of limitations for coram nobis actions and restricted the relief that it provides to factual errors only (rather than legal errors).[21] It has never been clear whether the statutory writ of coram nobis operated to replace and supersede the common law writ,[22] and indeed, the answer to that question is still not entirely clear even following the Court’s decision in Payne.[23] Given the one-year statute of limitations contained in the writ of error coram nobis statute, however—and after indicating that Mr. Payne’s claim was more appropriately characterized as a legal claim rather than a factual one—the Court denied Mr. Payne coram nobis relief as well.
d. Free-Standing Claim Under Tenn. Code Ann. § 39-13-203
Positing yet another procedural vehicle for his claim, Mr. Payne’s attorneys also argued that he had a free-standing claim under Tenn. Code Ann. § 39-13-203 (the “Intellectually Disabled Defendants/Capital Punishment” statute), which was enacted approximately one year after Mr. Payne was convicted. In pertinent part, this statute provides that: “Notwithstanding any law to the contrary, no defendant [who was mentally retarded] at the time of committing first degree murder shall be sentenced to death.”
Unfortunately for Mr. Payne, however, the Tennessee Supreme Court already ruled on the retroactivity of Tenn. Code Ann. § 39-13-203 back in 2001. In that case, the court concluded that “although the issue as to retroactive application of the statute [wa]s close,”[24] Tenn. Code Ann. § 39-13-203 only applied prospectively. Disappointingly, the court’s analysis on this point completely failed to engage the question of whether Tenn. Code Ann. § 39-13-203 was substantive or procedural, which is traditionally what governs the inquiry under Tennessee law.[25] Notably, the case also serves as a prime example of why the late Justice Scalia railed against the use of legislative history in interpreting statutes—which can frequently be manipulated to arrive at whatever decision a reviewing judge would prefer to reach.
Specifically, when it decided the issue in 2001, the court noted that during the 1990 legislative session, a specific amendment was introduced in the State Senate that would have explicitly provided that Tenn. Code Ann. § 39-13-203 applied only prospectively.[26] The amendment failed and was withdrawn, which one might think would suggest that the legislature disagreed with it and wanted the statute to apply retroactively. Not so, apparently. After hypothesizing that “the legislature’s failure to clearly provide for retroactive operation may have been a product of oversight or may have been based on the assumption that no prisoner then on death row was mentally retarded,” the court concluded that “notwithstanding the presence of some ambiguous language in the statute and in the legislative history, there is no evidence of a clear legislative intent to apply the statute retroactively as required by the general rule.”[27] Accordingly, the court held that Tenn. Code Ann. § 39-13-203 applied only to cases after July 1, 1990.
Revisiting this issue again in Mr. Payne’s case, the Tennessee Supreme Court reaffirmed its 2001 holding in Van Tran that Tenn. Code Ann. § 39-13-203 does not apply retroactively. Yet again, however, the Tennessee Supreme Court failed to ask whether the statute at issue was merely remedial in nature, which this author finds somewhat baffling. Interestingly, the Court’s position that the Intellectually Disabled Defendants/Capital Punishment statute does not apply retroactively also shifted from a “close [call]” to an “inescapable conclusion” in Mr. Payne’s case. Regardless, however, the end result was the same. According to the court: “[Mr. Payne] failed to establish that he has a private cause of action to pursue his claim of [mental retardation] pursuant to the intellectual disability statute.”
e. Additional procedures?
According to a footnote in the court’s opinion, Mr. Payne’s attorneys also claimed that he had a right to an evidentiary hearing on his mental retardation claim under three other procedures available in Tennessee law: a declaratory judgment action; a motion to vacate an illegal sentence; and/or a petition for writ of audita querela. The court declined to rule on any of these potential claims, however, as the record before it did not indicate that Mr. Payne had yet tried to pursue them. Even so, the court implied that these procedures would not allow Mr. Payne to obtain an evidentiary hearing on his claim of mental retardation, either. Accordingly, the court concluded its opinion by “encourag[ing] the General Assembly to consider whether another appropriate procedure should be enacted to enable defendants condemned to death prior to the enactment of the intellectual disability statute to seek a determination of their eligibility to be executed.”
It seems extremely unlikely that the General Assembly will accept this invitation. Accordingly, as far as mentally retarded defendants who received death sentences after 1990 (and who did not have the benefit of effective counsel between 2001 and 2003) are concerned, the constitutional prohibitions against cruel and unusual punishment exist only in theory as a matter of Tennessee law. Notably, however, this very likely does not mean that they will be executed. Instead, it just means that Tennessee’s courts won’t hear the matter, and that federal courts will have to clean up the omission.
Read the Tennessee Supreme Court’s unanimous opinion in Payne v. Tennesseehere.
Questions about this article? Email Daniel Horwitz at [email protected].
[4] Occasionally, defendants also encounter some threshold procedural obstacles to filing post-conviction petitions that prevent them from meeting this deadline (not the least of which is trying to practice law without the assistance of an attorney). For example, although notarization is not required by statute, the standard form for post-conviction petitions inexplicably requires a notary, and prisons are often slow to provide access to them. Additionally, incarcerated defendants generally require a minimum degree of cooperation from prisons in order to file a post-conviction petition by mail, and in some instances, prison staff have been rumored to obstruct inmates from doing so.
[5]Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001)
[6]Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed. 2d 335 (2002) (quotation omitted).
[7]CompareMeadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993) (“we decline to apply the federal standard of retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.”); with Van Tran, 66 S.W.3d at 811 (appearing to hold that Meadows standard applies despite state statute adopting Teague standard); with Keen v. State, 398 S.W.3d 594, 601 (Tenn. 2012) (appearing to equate Meadows standard and Teague standard); with Bush v. State, 428 S.W.3d 1, 15 (Tenn. 2014) (expressly acknowledging difference between Meadows standard and Teague standard, holding that Tenn. Code Ann. § 40-30-122 codifies Teague standard, and holding that statutory standard prevails).
[8]See Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, 10 Tenn. J.L. & Pol’y 215, 232 (2015) (noting that “[r]ather than applying the comparatively broad retroactivity standard that had in fact been included in the Post-Conviction Procedure Act, the Bush court instead held that an even narrower [] standard–which the court summarily concluded that the legislature must have “intended” to enact based upon a pair of confused statements made by the bill’s House sponsor nineteen years earlier–would henceforth govern retroactivity law in Tennessee.”), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2564583.
[9]See, e.g., Bush v. State, No. M2011-02133-CCA-R3PC, 2012 WL 2308280 *6-9 (Tenn. Crim. App. June 15, 2012).
[12]Teague v. Lane, 489 U.S. 288, 313, 109 S. Ct. 1060, 1077, 103 L. Ed. 2d 334 (1989).
[13]See, e.g., In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“there is no question that the new constitutional rule abstractly described in Penry and formally articulated in Atkins is retroactively applicable to cases on collateral review.”); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (“In Atkins, the Supreme Court held at the end of its term that executing a mentally retarded individual violates the Eighth Amendment’s ban on cruel and unusual punishments. This holding applies retroactively; in Penry v. Lynaugh, when the question was last before it, the Court recognized that a constitutional rule barring execution of the retarded would fall outside Teague v. Lane’s ban on retroactive application of new constitutional rules because it placed the ability to execute the retarded ‘beyond the State’s power.’”) (internal citation omitted).
[17]See Goodwin v. Steele, Nos. 14-3739, 14-3743, 2014 WL 11128597, at *2 (8th Cir. Dec. 9, 2014) (per curiam); In re Henry, 757 F.3d 1151, 1159-61 (11th Cir. 2014).
[18]Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016) (internal quotations omitted); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“the Constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.”) (internal quotations omitted).
[19]Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn. 2012).
[20]State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999)
[21]See Tenn. Code Ann. § 40-26-105; Tenn. Code Ann. § 27-7-102 & 103. It is not clear that the criminal coram nobis statute – which mentions neither factual errors nor a statute of limitations period – actually compels this result, but the Tennessee Supreme Court has held as much nonetheless.
[22] To the author’s knowledge, the Tennessee Supreme Court also has never opined on whether a legislative effort to limit the application of a common law judicial writ would violate the Tennessee Constitution’s separation of powers doctrine.
[23] The Court suggests that the answer is “yes,” however, holding that an earlier case containing language that suggested considerably broader coram nobis relief than the coram nobis statute provides “d[id] not provide the Petitioner with a common law remedy in coram nobis.”
[25]See, e.g., Shell v. State, 893 S.W.2d 416, 419 (Tenn. 1995) (“statutes affecting only the method or the procedure for prosecuting or defending a cause of action may be applied retroactively. A remedial or procedural statute is one that does not affect the vested rights or liabilities of the parties.”).
Like all capital cases, the circumstances of Starr Harris’s death were horrific. On June 1, 2010, Ms. Harris was brutally murdered in the woods outside her home. The cause of her death was “strangulation associated with blunt force injuries,” and her body exhibited signs of “extensive trauma to [her] neck and [her] upper torso.” Ms. Harris also had a “gaping” laceration on the right side of her head with a skull fracture beneath it. There was blood under two of Ms. Harris’s fingernails, providing evidence of a struggle. Additionally, the front of Ms. Harris’s shirt had been ripped open while her bra had been pulled down to her waist—possibly suggesting evidence of rape. It goes without saying that the senseless brutality of Ms. Harris’s murder defies explanation.
Based on a combination of Ms. Harris’s phone records and the testimony of a FedEx employee who had unsuccessfully attempted to deliver a package to her on the afternoon of her death, the time of Ms. Harris’s murder was pegged sometime between 1:30 p.m. and 2:16 p.m. Unfortunately, there were no witnesses to Ms. Harris’s murder, and no direct evidence indicated who might have committed it. As is common in murder cases, however, Ms. Harris’s husband—Thomas Harris—was immediately investigated as a suspect.
The investigation that followed quickly gave rise to substantial suspicious evidence. First, the special agent investigating Ms. Harris’s murder noticed visible scratches on Mr. Harris’s hand and left forearm that could have been consistent with a struggle. Further, several gray hairs that were collected from Ms. Harris’s left hand were believed to be her husband’s. Mr. Harris’s DNA was also found in samples obtained from Ms. Harris’s rape kit. Even more strangely, phone records reflected that Mr. Harris’s cellphone had been “inactive” from 1:32 p.m. to 2:19 p.m. on June 1, 2010—which was precisely the time period when Ms. Harris was believed to have been killed. Moreover, it soon became clear that Mr. Harris had been having an extramarital affair with another woman at the time of Ms. Harris’s death. In fact, it turned out that Mr. Harris had lied to Ms. Harris on the day that she was killed while simultaneously planning a tryst with his ex-wife that evening. Significantly, Mr. Harris also failed to mention any of this in multiple written statements that he gave to police.
The Supreme Court of Tennessee’s opinion in State v. Knowles presents an undeniably horrifying set of facts involving multiple allegations of rape of a young child. Considered apart from the outrageous crime involved, however, the legal issue presented in Knowles was fairly straightforward. In child sexual abuse cases where the jury has heard proof of more than one alleged instance of sexual misconduct, Tennessee law requires the prosecution to “elect” the particular offense for which it is seeking a conviction. The “election” requirement serves at least five separate purposes, although the majority’s opinion only mentions two of them.
First, the election requirement serves to “allow the State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to identify a specific date on which a particular offense was committed.”[1] Second, it “preserve[s] a criminal defendant’s right under [Article I, Section 6 of] the state constitution to a unanimous jury verdict”[2] by ensuring that the jurors “deliberate over and render a verdict on the same offense.”[3] Additionally, however, as Justice Wade’s dissenting opinion reflects, the election requirement also: [3] “ensures that a defendant is able to prepare for and make a defense for a specific charge,” [4] “protects a defendant against double jeopardy by prohibiting retrial on the same specific charge,” and [5] “enables the trial court and the appellate courts to review the legal sufficiency of the evidence.”[4]
In this case, the prosecution misidentified the factual basis for the charged offense by mistakenly “electing” to submit an allegation to the jury that all parties agree did not occur. Specifically, the prosecution elected to allege that one particular sexual act had taken place, when in fact, the evidence clearly reflected that a different act occurred. Unfortunately, this mistake was perpetuated in the trial court’s instructions to the jury, which read, in pertinent part, that: Continue reading Tennessee Supreme Court Affirms Conviction Despite Prosecutor Submitting Wrong Allegation to Jury→
Each week, the Institute for Justice — a libertarian public interest law firm that specializes in constitutional litigation — issues a fun “short circuit” newsletter summarizing the interesting U.S. Circuit Court opinions of the week (you can subscribe by clicking here). This week’s summary, authored by John K. Ross, is re-posted below:
Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.
To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.
Inmate Liaison Committee member at Fishkill, N.Y. prison files grievance on behalf of prisoners, is sent to solitary confinement for 90 days. Retaliation? Second Circuit: That’s a possibility.
Fifth Circuit: No new trial for a former New Orleans, La. police officer convicted of burning the body of a police-shooting victim to cover up the victim’s death in the aftermath of Hurricane Katrina.
Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”
Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.
A strip club in Winnebago County, Wis., successfully demonstrates that the county’s permitting scheme for adult businesses is an unconstitutional prior restraint. Can the county regulate the club under a new zoning code, or is the club now a preexisting nonconforming use? Seventh Circuit: Now that the First Amendment thing is settled, let the state courts figure out the rest.
DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.
In which the Seventh Circuit expresses concern about the reliability of drug doggies but gives no succor to man sent away for 20 years for cocaine possession.
Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth Circuit: Contra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.
Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.
Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods.Ninth Circuit: Even if you had standing, which you don’t, you would still lose.
A 370 lb. mountain goat with a nasty attitude and no fear of humans menaces visitors and rangers in Olympic National Park for years, then finally kills a hiker. Ninth Circuit holds negligence suit is barred by the Federal Tort Claims Act’s “discretionary function” exception. Dissent: Doing nothing to protect the public from an unruly beast the size of an NFL lineman was not a “policy” choice—it was garden-variety negligence.
After having previously concluded that the First Amendment does not apply to a Florida prohibition on doctors inquiring about their patients’ gun ownership, a panel of the Eleventh Circuit changes its mind: The First Amendment applies, but the prohibition is still constitutional. (Interested in occupational speech? Read IJ’s latest cert. petition to the U.S. Supreme Court.)
And in en banc news, the Third Circuit will reconsider whether the government must file a forfeiture petition if it wants to keep 10 ultra-rare coins given to Treasury officials for authentication and then not returned to the owner.
