I see that On Point has posted the latest decision in the Fischer v. Van Hollen saga. This is the case in which a federal magistrate judge in the Eastern District of Wisconsin overturned the Wisconsin Supreme Court’s decision prohibiting the use of preliminary breath test evidence by an OWI defendant. The latest development is a denial of the state’s motion to amend the judgment.
Because the state attempted through its motion to advance various arguments that it did not present in its initial, bare-bones response the petition, Judge Goodstein had an opportunity in his latest opinion to comment critically on the state’s habeas litigation practices in general. As he implies, and as is consistent with my own observations of practice outside Wisconsin, the extraordinary procedural hurdles that have been raised in habeas cases over the past generation seem to have been taken as a license for something short of maximum meticulousness in state responses to habeas petitions. I wonder if there are some subtle costs to this. For instance, I wonder if more rigorous responses on the merits would help states more quickly to recognize when wrongful convictions and other miscarriages of justice occur.
By the way, although I recently observed here that I am uncomfortable with the picture of a single federal judge overturning a state supreme court decision, I should make clear that I still prefer that picture to the alternative of leaving a prejudicial violation of constitutional rights unremedied.