Friday, May 31, 2013

Metrish v. Lancaster: Kiss Your Defense Goodbye

Burt Lancaster the actor, no relation to Metrish v. Lancaster
Wrong Burt Lancaster
The United States Supreme Court recently decided Metrish v. Lancaster. The Court reversed the Sixth Circuit and held that Lancaster was not entitled to federal habeas relief where the trial judge retroactively applied a state supreme court decision that eliminated a defense, which he had used at his first trial, at his retrial on the same charges. 

History of the Case

Burt Lancaster (not the movie star) was accused of fatally shooting his girlfriend. At his 1994 murder trial, he raised a diminished capacity defense. Michigan law at that time allowed a defendant who was not legally insane to present evidence of mental illness to negate a crime's specific intent element. The jury found him guilty but the conviction was later vacated on appeal for an unrelated issue.

Lancaster was retried in 2005, but by that time the Michigan Supreme Court had decided People v. Carpenter. That 2001 case interpreted Michigan's 1975 mental health defense statute to have eliminated the diminished capacity defense. Carpenter thus overruled a line of cases recognizing the diminished defense both before and after the 1975 law. Lancaster's crime was committed years before Carpenter yet the second trial judge applied its rule retroactively and refused to allow the diminished capacity evidence. Lancaster was convicted and appealed claiming a due process violation. The Michigan courts affirmed the conviction and Lancaster again raised the due process issue in a federal habeas petition. The District Court denied the petition, but the Sixth Circuit reversed holding that the District Court wrongly applied federal law which allowed retroactive judicial expansion of criminal liability only if the change was foreseeable at the time of the criminal conduct. Now the United States Supreme Court has reversed and denied Lancaster relief.

Standard for Habeas Review of State Court Judgment

Since the case involved a habeas petition, the deck was already stacked against Lancaster. In 1996, congress passed the Anti Terrorism and Effective Death Penalty Act or, AEDPA. The law set the bar higher for prisoners (or lower for states?) and drastically limited the Federal Judge's discretion to grant a the petition. As the AEDPA at 28 USC § 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States
As the Supreme Court noted in Lancaster:
This standard, we have explained, is “difficult to meet”: To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on “an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.” Slip p. 4-5, Quoting Harrington v. Richter.

Federal Law on Retroactive Judicial Expansion of Criminal Liability

So what is the federal law on retroactive application of judicial rulings like one that abrogated Michigan's diminished Capacity defense? The Sixth Circuit does a nice job of laying out the standard and the following language appears at p. 744 of that opinion:
"[A] judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'" Rogers, 532 U.S. at 462, 121 S.Ct. 1693 (quoting Bouie, 378 U.S. at 354, 84 S.Ct. 1697). Put another way, "[w]hen a state court overrules a consistent line" of decisions interpreting a criminal statute or common law and applies that decision "retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law." Bouie, 378 U.S. at 354-55, 84 S.Ct. 1697. This tenet of due process is the judicial counterpart to the Ex Post Facto Clause found in Article I of the U.S. Constitution, which applies only to legislatures. Rogers, 532 U.S. at 456, 121 S.Ct. 1693 ("[L]imitations on ex post facto judicial decision making are inherent in the notion of due process."). "Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, s[.] 10, of the Constitution forbids." Bouie,378 U.S. at 353, 84 S.Ct. 1697...
Lancaster must show that the Court's abolition of the defense was unforeseeable in order to succeed on his due process claim. See Bouie, 378 U.S. at 353-54, 84 S.Ct. 1697. That is, he must demonstrate that Carpenter unexpectedly abrogated a consistent line of decisions recognizing the defense.

The Sixth Circuit's Analysis

The district court denied the petition reasoning that the diminished capacity defense "has never enjoyed a solid foothold in Michigan's criminal law." Therefore, its 2001 demise was not unforeseeable at the time of Lancaster's crime. The sixth Circuit rejected this logic finding that the defense was well established. In summary, they raised the following points:
  1. Diminished capacity was first recognized as a defense in 1973 by People v. Lynch, 28 years before Carpenter was decided.
  2. In 1975, the Michigan legislature enacted a statute codifying the insanity defense. The statuary language did not include the term "diminished capacity" but in a 1978 decision, the court pf appeals held, "the defense known as diminished capacity comes within th[e] codified definition of legal insanity"
  3. Michigan Court of appeals decisions as recent as 2000 continued to recognize the defense saying "[t]his court has consistently held that the defense of diminished capacity comes within the codified definition of legal insanity"
  4. The Michigan Supreme Court continued to consider the defense in cases decided in 1985, 1986, 1994, 1999, 2000, always acknowledging it as part of criminal practice. See 6th Cir. op. at 748.
  5. The Michigan State Bar Criminal Jury Instructions included a diminished capacity instruction from 1994 until 2001. The State Supreme Court's administrative order urged judges to use these instructions in all criminal trials.
The Sixth Circuit distinguished Lancaster from Rogers v. Tennessee, a 2001 case where the U.S. Supreme Court allowed retroactive judicial abolition of a defense. Rogers stabbed a man who died some 15 months later. He was convicted of homicide but appealed claiming prosecution was barred by the common law "year and a day rule" which allowed homicide prosecution only when a victim died within 366 days of the injury. On appeal State Supreme Court recognized that the rule had once existed and then formally abolished it. The U.S. Supreme Court found no due process problem in applying the abolition retroactively. The court reasoned that:
  1. The rule was “widely viewed as an outdated relic of the common law” and had been “legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue.” Rogers, 532 U. S., at 462–463.
  2. The rule “had only the most tenuous foothold” in Tennessee, having been mentioned in reported Tennessee decisions “only three times, and each time in dicta.” Id., at 464. (see Lancaster slip p. 7-8)
Diminished Capacity is no legal relic. As discussed above, it was well established in Michigan law. The court reasoned that the Rogers rational does not apply.

The Circuit analogized to Bouie v. Columbia a 1964 Supreme Court case disallowing retroactive application of a South Carolina Supreme Court decision that expanded liability for criminal trespass. There, black defendants were convicted of that crime for refusing to leave the whites-only section of a restaurant. At the time of the conduct, the state criminal trespass statute prohibited a person from entering without permission, but said nothing about people who stayed after they are told to leave. In affirming the convictions, the state supreme court interpreted the statute to include people who remain after receiving notice to leave. The U.S. Supreme Court reversed finding that the reinterpretation was:
  1. At odds with the statutory language and its prior interpretation
  2. Was not supported by prior South Carolina decisions which had only ever recognized criminal liability for entering, not lingering. Bouie, 378 U. S., at 356.
Now that sounds familiar.

The SCOTUS Opinion, Why did Lancaster Loose?

In reversing the sixth circuit, the unanimous majority reasoned that Bouie is distinguishable:
Carpenter thus presents the inverse of the situation this Court confronted in Bouie. Rather than broadening a statute that was narrow on its face, Carpenter disapproved lower court precedent recognizing a defense Michigan’s high court found, on close inspection, to lack statutory grounding. The situation we confronted in Bouie bears scant resemblance to this case, and our resolution of that controversy hardly makes disallowance of Lancaster’s diminished capacity defense an unreasonable reading of this Court’s law. Slip 13.
The Court did recognize that Lancaster's defense was better established than that in Rogers, noting that such authorities as the Model Penal Code and American Bar Association approved of the the diminished capacity defense. Id. p. 14. The problem though was that the Sixth Circuit read Rogers too closely. The rule it announced (though never more broadly articulated there or in the Lancaster opinion) is somehow bigger:
Rogers did not hold that a newly announced judicial rule may be applied retroactively only if the rule it replaces was an “outdated relic” rarely appearing in a jurisdiction’s case law. Id p. 15.
So even established defenses can be retroactively abrogated and Lancaster and Rogers can both loose without offending due process. Besides, even if the lower court was wrong, that's not enough to win on habeas review:
Lancaster’s argument against applying Carpenter retroactively is arguably less weak than the argument opposing retroactivity we rejected in Rogers. Unlike the year and a day rule at issue in Rogers, the diminished-capacity defense is not an “outdated relic of the common law”...These considerations, however, are hardly sufficient to warrant federal habeas relief under [AEDPA's] demanding standard...“[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Id p. 14-15.
The opinion sums up with some definitive sounding language:
This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fair minded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.” Rogers, 532 U. S., at 462 (internal quotation marks omitted). Lancaster therefore is not entitled to federal habeas relief on his due process claim. Id. p. 15.
If you remove the bracketed "[existing law]", the quote from Rogers actually reads: "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." When you say it like that, it almost sounds like the Sixth Circuit got it right.

Lessons Learned?

Lancaster emphasizes that it's really hard to win on the AEDPA habeas standard. What the opinion doesn't do is better articulate a rule to judge cases where a judicial decision is applied retroactively to expand criminal liability. All we know now is that retroactivity was ok in Rogers and Lancaster, but not in Bouie. What we don't know is where exactly the line between Lancaster and Bouie lies, or what it takes to cross it.

The facts of this case are unique, but the basic scenario is not that uncommon. State supreme courts often reinterpret statutory language to limit defenses or otherwise expand criminal liability. Up to now, such decisions are rarely applied retroactively. It will be interesting to see if the holding is constrained to its facts, or if the rationale gains wider acceptance.