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SCOTUS Refuses Cert. of Habeas Corpus Case, Scalia Dissents ... Calmly

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By Jonathan R. Tung, Esq. on December 02, 2015 6:56 AM

The nation's highest court refused to intervene in a Confrontation Clause case in which a convicted murder pled for relief. This is the latest in Sixth Circuit Opinions where that court has taken its own path with regards to 'precedent.'

In an atypically calm dissenting opinion, Justice Scalia reasoned that the Sixth Circuit had built up an appetite and "taste for disregarding" the Antiterrorism and Effective Death Penalty Act and that the Supreme Court should have granted review to "discourage" such appetites.

Facts and Procedure

Fred Blackston was convicted in Michigan of murder, retried and convicted again. Five witnesses had testified against Blackston in the first trial. Before the retrial, two of the key witnesses recanted statements that had been used to convict Blackston. On retrial, they refused to answer questions. Prosecutors read their previous statements into evidence during retrial, but the court refused to admit their recantations into the body of evidence.

The lower court judge pronounced the witnesses "unavailable" and under this hearsay exception, Blackston was sentenced to life imprisonment. He sued on numerous theories including violations of his Sixth and Fourteenth Amendment rights as well as habeas under the Antiterrorism & Effective Death Penalty Act (AEDPA). The AEDPA prevents federal courts from granting habeas relief unless a state court unreasonably applied "clearly established" federal law.

Michigan's Supreme Court found no error in excluding the recantations. A federal District Judge however, found that the exclusions violated Blackston's Sixth and Fourteenth Amendment rights. The Sixth Circuit affirmed the District court's opinion. Finally, at the very top, SCOTUS denied cert. leaving the Sixth Circuit's decision standing.

Gone Too Far

Although the majority of Supreme Court Justices felt that the case did not merit review, Justices Scalia, Thomas and Alito felt differently. Scalia, in an uncharacteristically calm manner, wrote that SCOTUS has never held that the language of the Confrontation Clause should ever be equivocated with allowing extrinsic hearsay into the body of evidence. Nevertheless," he wrote "the Sixth Circuit held that ... [Supreme Court precedent] 'clearly established' as much."

Not right, Scalia wrote. In each of the cases that the Sixth Circuit has relied upon, the hearsay exception applied only in factual circumstances where the impeachment was of a testifying witness, not one that is unavailable -- or who outright refuses to talk. Thus, the Sixth Circuit, Scalia opined, took the reading of Nevada v. Jackson too far, violating precedent or simply ignoring it. But the Sixth Circuit shouldn't despair, the Ninth Circuit gave it a go too, and well, it also struck out.

Nevada v. Jackson and the AEDPA

The AEDPA, in the opinion of SCOTUS, was stretched way beyond its ambit by the Sixth Circuit to simply allow recantations of witness testimony as a matter of fact despite wanting of "clearly established" precedent -- the standard under Nevada v. Jackson. It was clear that Scalia was all but ready to settle the issue once and for all.

Scalia and the minority's view on the habeas issues as they relate to AEDPA sets a possible tone for future cases dealing with this legal issue. Circuits -- particularly the Sixth -- can be sure Scalia and company will be waiting in the wings ready to pounce, should they make similar rulings in the future.

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