Hey, Making a Murderer fans, Marquette alumnus (and prolific author) Michael Cicchini has a provocative new book out on the Steven Avery case: Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer. I look forward to reading it. I expect more of Cicchini’s customarily trenchant criticism of the criminal justice system.
As jury selection began for the trial of Sharon Sellhausen, it turned out that one of the prospective jurors was the daughter-in-law of the trial judge. Although the judge could have, and should have, excused such a close relative from service on the jury, he did not do so. Nor did the prosecution or defense seek the daughter-in-law’s removal for cause. Perhaps that seemed a perilous course of action after the judge had gone to some effort to create a record that the daughter-in-law would be impartial. In any event, defense counsel chose to remove the daughter-in-law through the less confrontational method of the peremptory strike, which saved the judge from having to rule on the suitability of his daughter-in-law serving on the jury.
But, of course, the defendant was thereby out a peremptory. Thus, she could with some reason complain on appeal about the trial judge’s failure to remove the daughter-in-law sua sponte.
Earlier this month, the Wisconsin Supreme Court agreed in State v. Sellhausen, 2012 WI 5, that sua sponte removal would have been preferable, but declined nonetheless to grant the defendant a new trial. Since the daughter-in-law was eventually struck and did not serve on the jury, the court held that any error was harmless.
The case seems to embrace the broad principle that erroneous failures to excuse a prospective juror for cause will always be regarded as harmless where the prospective juror is later struck.
I posted yesterday on Winston v. Boatwright, in which the Seventh Circuit had to resolve a conflict between the “structural error” analysis used when peremptory strikes are exercised in a discriminatory manner and the Strickland prejudice test used when a defendant’s lawyer provides unreasonably poor representation. The case beautifully highlights the wide range of approaches to prejudice that the law uses when deciding whether to grant a convicted defendant a new trial based on procedural error.
Reversal is sometimes automatic, without any case-specific determination of whether the procedural error actually worked to the defendant’s disadvantage. This happens, for instance, when a defendant who is entitled to appointment of counsel is not given one, as well as in the discriminatory peremptory strike scenario. On the opposite end of the spectrum, defendants must sometimes demonstrate a “reasonable probability” of a different outcome if there is a retrial. This happens, for instance, when the state withholds exculpatory evidence from the defendant, as well as in the ineffective assistance of counsel scenario. In between are a variety of other options, including the classic “harmless error” test, in which the government bears the burden of proving harmlessness beyond a reasonable doubt. This test itself can mean a range of different things, as my Post-Conviction Remedies students discover when we read and compare State v. Harvey, 254 Wis.2d 442; State v. Carlson, 261 Wis.2d 97; and State v. Vanmanivong, 261 Wis.2d 202 — cases that exemplify quite different approaches to harmless error without any apparent recognition or justification of the differences.
Courts do sometimes try to justify the different tests based on purported differences in the underlying error, but these efforts usually strike me as pretty unconvincing. Continue reading “Unifying the Harmless Error Analysis”
As regular readers of this blog — yeah, both you — probably realize, my pet peave about habeas law is that there are so many unnecessary, arcane procedural requirements. Yes, I understand that things are different after the regular criminal process has played itself out, and it should be harder for a defendant to overturn a conviction than to avoid a conviction in the first place. But we can accomplish that simply by placing all evidentiary burdens on the defendant. I’m even open to the idea that the defendant should in all cases be required to make a substantial showing of actual innocence in order to win a new trial. But why layer on one additional procedural requirement after another? These requirements just spawn more layers of collateral litigation that lead reviewing courts further and further away from the questions of substantive justice that ought to be the focus.
The Supreme Court of Wisconsin may have added to the procedural complexity and uncertainty of Wisconsin postconviction law with its decision last week in State v. Balliette, 2011 WI 79. It’s a bit hard to say what the significance of the decision is, but the court’s emphasis on the pleading requirements that must be satisfied before a § 974.06 movant can get an evidentiary hearing does not bode well.
Here is the relevant language:
“Second-look sentencing” is a topic of growing interest to sentencing scholars and policymakers. Particularly in light of the elimination or scaling back of parole in most states in the past generation, as well as the reality that executive clemency is extremely unlikely in most cases except perhaps in the final days of a lame-duck administration, there is a real need for alternative mechanisms to reconsider sentences based on facts not known to (or perhaps inadequately considered by) the sentencing judge.
Wisconsin law has long recognized that circuit courts have the inherent authority to modify sentences based on new factors, but judicial interpretations of this authority have hardly been generous. However, this week’s Wisconsin Supreme Court decision in State v. Harbor, 2011 WI 28, offers a clarification and modest loosening of the requirements for modification.
Here is what the court had to say about the requirements:
I continue to enjoy Michael Cicchini’s wry posts at The Legal Watchdog. His latest entry details in typically engaging fashion two extraordinary cases in which the Wisconsin Court of Appeals overturned convictions that were based on only the flimsiest of evidence. He asks:
Why are some juries and some judges so eager to convict and incarcerate people? Without any evidence, is it based on race or some other physical characteristic that can’t be seen when reading the trial transcript? Or is it just our love of punishment, even in cases where a crime was committed, if at all, by someone else?
Meanwhile, Amelia Bizzaro has a helpful post at her blog on the recent SCOTUS cert. grants on ineffective assistance in plea bargaining.
As reported in today’s Milwaukee Journal Sentinel, Wisconsin Gov. Jim Doyle is considering two commutation requests from robbers serving 80-year prison terms. As discussed in this post, Doyle has been granting clemency at an unusually high rate relative to his recent predecessors, but he has not yet commuted the sentence of anyone actually still in prison.
The Journal Sentinel articles conveys the views of a couple of commentators that the clemency power should simply not be used in this manner. For example, a district attorney said of one of the robbers:
Mr. Norton may have made strides in his behavior while in the Department of Corrections. . . . He may have addressed certain issues, which may make him less of a risk. However, that is not a reason for the Pardon Advisory Board nor the Governor’s Office to upset the sentence of the court and sit as a Super-Appellate Court on the questioning of sentencing in this or almost any other matter.
I think this position is misguided in a couple of respects.
A few weeks ago, I blogged about Wisconsin Governor Jim Doyle’s unusually high number of pardons. Now, I read in this morning’s Journal Sentinel that his Pardon Advisory Board is planning to make recommendations on a set of clemency applicants without following the longstanding tradition of interviewing them first. The judgments of the criminal justice system are certainly not infallible, and I welcome the role of executive clemency in a broader system of robust post-conviction review to correct mistakes, either as to the conviction or as to the sentence. At the same time, the clemency process requires transparency and accountability. I am troubled, then, by the acceleration of the clemency process near the end of the term of a lame-duck executive. Whether justified or not, the Advisory Board’s change in procedures is apt to be regarded as a further effort to expedite clemency, which may further erode the perceived legitimacy of clemency. It would be nice if public confidence in clemency were strong enough that it could actually be used in a serious way by executives who are still politically accountable.
That said, apart from the immediate political context, I think it is an interesting and uncertain question whether applicants ought to be interviewed as a matter of course before clemency is granted. Continue reading “Should It Be Necessary to Interview Clemency Applicants?”
In order to prepare for an upcoming talk on the past term in the Wisconsin Supreme Court, I just read State v. Allen, 2010 WI 89 (2010), a new case elaborating on State v. Escalona-Naranjo, 185 Wis. 2d 168 (1994). I teach E-N in my post-conviction remedies class, and I’ve never found its reasoning persuasive. The E-N court held that a direct appeal raises a procedural bar to any subsequent attempt to gain post-conviction relief based on issues that could have been, but were not, litigated in the direct appeal. It seems to me that the court gave too much weight to the state’s interest in avoiding a second round of post-conviction litigation, particularly in light of the woeful underfunding of indigent defense in Wisconsin and the real possibility that important constitutional issues might be missed in the first round. Moreover, despite the court’s desire to reduce the volume of post-conviction litigation, the E-N procedural bar has actually spawned considerable collateral litigation over the questions of what could have been raised on direct appeal and what constitutes good cause to excuse a procedural default. Rather than expending so much energy on the resolution of unnecessary procedural questions, I would much rather see the courts reaching the merits of the underlying constitutional claims.
In any event, Allen, the new case, nicely illustrates the sorts of puzzles the courts have to grapple with under E-N. Continue reading “No-Merit Appeal in WI Triggers Procedural Bar to Post-Conviction Claims”