Habeas Corpus - Confusing N.Y. Times Article About Sotomayor

Yesterday, the New York Times had an article about the habeas case of Jeffrey Deskovic in which Sotomayor was on the panel that affirmed the district court's denial of habeas.

Deskovic's story is truly tragic. He was convicted of the murder of one of high school classmates after he falsely confessed to the crime. I know it is hard to believe, but people falsely confess to crimes. According to the Innocence Project, there have been several exonerations in the DNA era even though the defendant confessed to the crime. Deskovic is one of them, as DNA tests on semen found in the victim exonerated him.

However, before the exoneration, Deskovic spent 16 years in prison during which he was unsuccessful in his challenges to his conviction.

One of these unsuccessful challenges was the habeas petition referenced in the article. In that case, the district court dismissed his petition since it was filed 4 days after the conclusion of the one-year time period (See FAQ 6). Deskovic asked that the tardiness be excused because his attorney was told inaccurate information about the time period in which to file the petition. In addition, he asked that the court review the case because he was actually innocent. The district court dismissed the petition as untimely.

In a unpublished summary order, a two-judge panel of the Second Circuit affirmed. One of the judges was Sotomayor, and it was a two-judge panel since one of the judges was sick and did not take part. A two-judge decision is acceptable so long as the two judges agree. In the unpublished order (located in a table at 210 F.3d 354), the court concluded that the petition was time-barred. Following clear precedent, the court stated that attorney negligence is not an "extraordinary circumstance" that would justify a failure to comply with a time-limitations period. The court did not address the innocence claim.

I am not exactly sure what to make of the article itself. It kind of reads like a hit piece on Sotomayor. But that's a little unfair. As I have stated before, she is a legal technocrat -- she strictly adheres to precedent and that's what she did here. It is troubling that she did not have the ability to see that there was a troubling question as to Deskovic's guilt, but of course neither did the other judge, Rosemary Pooler, who is one of the most liberal judges on the Second Circuit. Also, in opinions she authored, Sotomayor has expressed concern about strict adherence to the habeas procedural rules when a compelling showing of actual innocence has been made. See Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004); Alexander v. Keane, 991 F.Supp.2d 329 (SDNY 1998). Of course, the article does not mention this.

One can feel a tremendous amount of empathy for Deskovic, but that is separate from whether Sotomayor should be criticized in this case. Really, the Deskovic case says more about the unfairness of the system and how the law itself is ridiculously slanted against criminal defendants and habeas petitioners than it does about anything Sotomayor did in the case. When a judge has been on the bench as long as Sotomayor, the odds are high that a case such as this would happen: the law does not entitle the defendant to relief, but the defendant later is shown to be innocent. This is particularly true in the DNA era. Really, this case should force people to ask important questions about police conduct and how the system is currently structured that would allow an innocent person to spend 16 years in prison.

As one of my favorite bloggers notes, the Sotomayor nomination places people, such as people who represent habeas petitioners, into a difficult position. They are being forced to defend a judge who has not shown that she will be hospitable to habeas petitioners' claims. They almost have to say -- look how qualified she is, she reflexively rules against habeas petitioners! Isn't she wonderful? I say this since I am not happy with the fact that Sotomayor denied this habeas petition. I wish judges would give actual innocence claims far more weight than they do. I wish the one-year time limitations was not so onerous and the federal courts more generous in allowing untimely petitions to proceed. But in this case Sotomayor did what 99.9999% (if not 100%) of every federal judge would do. It really is not fair to criticize her about this case.

UPDATE: For similar sentiment, read this post at TalkLeft. Her take: don't blame Sotomayor, blame the AEDPA. She recommends getting rid of the AEDPA.