...and some bad news

Because of the technical legalities of this, it's not as far-reaching as the decision about sentencing guidelines, but the attitude it displays, even though we've seen it before, is always deeply troubling.

This is from Edward Lazarus' June 10 column at FindLaw.com (thanks to Information Clearinghouse). You have to understand this first part for the rest of it to mean an much as it does.

Everyone involved in Michael Wayne Haley's case - the State of Texas, which prosecuted him; the lower federal court judges who heard his case; and all the U.S. Supreme Court's Justices - recognize that he's been in jail more than six years for a crime carrying a maximum sentence of two years.

But he's still in prison and because of a Supreme Court decision in May, he'll be there even longer.

It started in 1997, when Haley was convicted of stealing a calculator from a Wal-Mart. Because of prior theft convictions, he could have gone to prison for two years. Unsatisfied, Texas prosecutors dropped a bomb on him: Because he had two prior felonies on his record - attempted robbery and delivery of amphetamines - they also charged him as a "habitual felony offender" under a "three strikes" law. He was convicted and sentenced to a total of 16½ years.

There was one small problem: Because of the timing of the prior felonies, under the law he was not a habitual offender.

Unfortunately for Haley, however, his defense lawyer at trial did not notice the problem. And apparently, neither did the prosecutors.

So Haley went to prison, and started serving a sentence at least 14½ years too long.

Eventually, Haley caught on to the mistake. And in August 2000, he filed a petition for habeas corpus in federal court. In his petition, he claimed that he was "innocent" of being a habitual offender and, accordingly, that his sentence was unlawful.

The State of Texas conceded that Haley's criminal record made him ineligible for habitual offender treatment. But the State still wanted Haley to serve the extra 14-plus years on the ground that he had waived the argument he now was making - having failed to raise the objection at trial or on direct appeal from his conviction and sentence. Using one of those lovely obscurities of the law, the State argued that Haley's claim was "procedurally defaulted" - which is another way of sticking your tongue out and screaming "Hah-hah, too late!"

Federal district court, in what would seem to be an entirely rational decision, rejected that argument and ordered Haley released because his case fit the "actual innocence" exception to the prohibition on raising "defaulted" arguments. I mean, how can you argue otherwise? How is being innocent not a defense, no matter when it's raised?

This, however, is where it gets sticky: It seems the district court had broken some new ground. In the past, the exception had only been recognized in death penalty cases. But the court found - again, how can you disagree? - there was no reason to so limit it since the whole idea of the exemption was to achieve a just result. On appeal, the 5th Circuit Court of Appeals agreed.

But some judges don't because of the supposed threat to "doctrinal purity."

In a long line of cases, the Supreme Court had decreed that ordinarily the only way to raise a procedurally defaulted claim was to show "cause and prejudice." That is, a defendant had to show that there was a good cause for having failed to bring up the defaulted claim at the right time, and that the failure to raise the claim was going to cause real harm.

But in effect, the "actual innocence" exception does away with the first, "cause" part of this calculus

on the grounds that if the harm is sufficiently great, there is no need to show a cause because to do otherwise would be manifestly unjust. But, some argue, the "purity" of that doctrine is only maintained in cases of extreme - ultimate, if you will - harm such as a wrongful imposition of the death penalty. "Purity," that is - in cases like this, the word rings in my head like Nazi aspirations to "racial purity" - outweighs justice, procedure trumps truth.

And so Texas, eager for its pound of flesh and to avoid having to admit to a mistake, appealed to the Supreme Court, arguing that the actual innocence exemption did not apply to Haley's case even though the facts of the case could not justify the sentence imposed.

So what did the Supreme Court do when faced with a choice between doctrinal purity and gross injustice? By a 6-3 vote, the justices punted. Specifically, in an opinion written by Justice Sandra Day O'Connor, they decided not to decide whether the actual innocence exception should be interpreted as extending to habitual offender cases.

Instead, they ruled that Haley should go back to the district court and try to get out of jail on one of his other claims of error - claims that the district court had not ruled on in light of the obvious and admitted problem with Haley's sentence.

The upshot of this ruling is to keep Haley in jail for an indefinite period while he litigates his other claims.

And, apparently, if those other claims fail (after a few more years of litigation, while Haley sits in jail for a "crime" of which everyone agrees he's innocent) then he can go back to the district court and refile on the issue of actual innocence, for a third round of years-long litigation (while he sits in jail for a "crime" of which everyone agrees he's innocent). Because, again, procedure trumps truth and "purity" must be maintained if at all possible.

Lazarus' closing paragraph sums up what we face:

Unfortunately for Haley, for this Court, being clearly and uncontrovertibly right - as Haley has been all along - is not enough. For those who bemoan criminal defendants' "getting off on a technicality," isn't keeping Haley in jail on a technicality even worse? Conservatives and liberals alike ought to scorn this shameful ruling.

Fat chance of the former joining the objectors.