SCOTUS Evaluates Judicial Presumptions in AEDPA Case

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By Jessica DaSilva

Jan. 12 — U.S. Supreme Court justices pressed both parties during oral argument Jan. 12 in a case that should determine what exactly constitutes clearly established precedent under the Antiterrorism and Effective Death Penalty Act.

Although the question presented focused on what constitutes clearly established federal law, the justices' questions predominantly focused on the application of harmless error analysis and whether the defendant suffered a due process violation.

At the center of the case is a statement from a trial court judge during a bench trial, indicating that although eye witness testimony may have “skirted the real issue,” the judge believed motive existed and the state sufficiently proved it. While the Illinois appellate court presumed the trial court made the statements in light of trial evidence, the U.S. Court of Appeals for the Seventh Circuit found that the trial court made that statement as a substitute for trial evidence.

Materiality of Motive

Justices Sonia Sotomayor and Elena Kagan peppered the government with questions on whether it was appropriate for a trial judge to seemingly base a conviction on evidence of motive not introduced at trial.

The tag team almost immediately began posing hypothetical questions to the government, asking at what point the judge's language would have violated due process when he indicated he solely decided the defendant's guilt based on extraneous evidence. Illinois Solicitor General Carolyn E. Shapiro responded by saying that a fact finder could believe a narrative unsupported by the evidence and not violate due process.

“Oh, I see,” Kagan said. “So you think that it doesn't matter if the judge thought that the evidence was insufficient as long as the evidence was, in fact, sufficient.”

Shapiro clarified that it depended on the appellate court's interpretation of the record and whether they believe the judge is explaining the evidence in a way that he can understand versus substituting evidence not introduced at trial when making that decision.

However, Shapiro said, it doesn't need to be obvious as judges enjoy a presumption that they know and follow the law—especially on habeas review.

Kagan pushed back saying her interpretation was that the judge didn't find sufficient evidence at trial and entered his guilty verdict based on his own, unsupported theory.

Shapiro argued that such a reading wasn't clearly established by the record.

Sotomayor, the only sitting justice who served as a trial court judge, jumped in to point out that problems existed with both witnesses. One didn't correctly identify a photo of the defendant. The remaining witness only had a fleeting look at the defendant at night from eight feet away.

“How can you draw a reasonable inference that the judge wasn't troubled by the witnesses when he says, ‘I think all of the witnesses skirted the real issue'?” she asked.

Shapiro stated that the witness who misidentified the photo managed to correctly identify the defendant in the courtroom.

“It's pretty easy to identify a defendant in court,” Sotomayor stated, drawing laughter from the courtroom. “They sit next to the defense attorney.”

Shapiro and the justices continued the tete-a-tete about what the trial judge intended when Justice Stephen G. Breyer stated that no matter which interpretation is the right one, both appellate courts agreed that an error occurred. He said the difference is that the Illinois court found the error harmless. That harmless error analysis is entitled to deference, Shapiro argued.

“But assume if you think that this judge unconstitutionally convicted somebody on the basis of evidence that had never been introduced at trial—how could that not be harmful?” Kagan asked. “I mean, it's almost tautological. If the error is that he convicted somebody on the basis of evidence that was not proper to think about, well, of course, that's harmful. That's why he convicted him.”

If it wasn't a material factor, then it cannot be a due process violation, Shapiro said.

Determining Deference

On the other side, Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Breyer pressed defendant Lawrence Owens's counsel—Barry Levenstam, Chicago—on why courts would presume a trial court defied basic practice to convict based on extraneous evidence, rather than merely explaining how the evidence fit together to establish the defendant's motives.

Fairly early into the argument, Scalia asked about the judicial presumption that a judge knows and applies the law. If that is so, Scalia said the defendant must have been convicted on the basis of evidence presented in court.

Levenstam argued that while a presumption that the judge knew the law is accurate, it doesn't account for the judge discussing motive when Illinois Supreme Court precedent requires actual knowledge when someone is convicted on a motive theory.

Roberts wrangled the argument back to the AEDPA issue by asking whether a U.S. Supreme Court case exists that clearly established that a judge's speculation about an issue not pertinent to guilt amounts to a due process error. Levenstam admitted there was no case.

“Under AEDPA, isn't it critical that there be a case?” Roberts asked. He then turned his attention to cases the Seventh Circuit cited in their opinion and stated that none of the cases seemed relevant to the case at hand.

“Each of those cases applied what I would call a prophylactic application of due process to avoid a jury coming to a conclusion based on outside-the-record facts or assumptions,” Levenstam answered. “Here, what we have is a trial court judge who has told us, on the record, that that's exactly what he's done.”

Breyer countered that response and asked whether it was clear enough that the judge disregarded the evidence entered at trial.

Scalia followed that lead, pointing out that the judge never states that motive is “necessary to his decision.”

Levenstam said the fact that the judge mentioned it at all shows that it was integral to his decision and speculation cannot be the foundation for a 25-year sentence.

Roberts asked if Levenstam was challenging the sufficiency of the evidence with that argument, but Levenstam said he was instead challenging “the sufficiency of the Illinois Appellate Court's harmless-error analysis, upholding the conviction in light of the fact that it concluded there were no credibility determinations that it could rely upon made below.”

Finding Significance

Kathy Swedlow, professor at Western Michigan University's Thomas M. Cooley Law School, said this case is significant because it combines a limited issue of correcting an error at the trial level but also indicates that AEDPA “is turning into something it wasn't intended to be.”

“There's presuming the judge knows the law and then there's reading tea leaves from an absent record,” Swedlow said.

The case demonstrates the frustration arising in federal courts that are required to grant deference in cases where there are errors, she explained.

Without predicting the outcome of the case, Swedlow said the Supreme Court seemed to acknowledge that frustration for when they “think something is wrong, but not wrong enough to grant relief under AEDPA.”

Swedlow said the justices almost seemed to ask the parties what kind of case law would be necessary to resolve the basic principle at issue in the case. She also maintains that while the trial judge's actions did not seem lawless, the court can maintain the ability to offer deference but still grant relief to a respondent who may have suffered a due process violation.

Ultimately, Swedlow thinks the Supreme Court is leaning more toward error correction, rather than offering a guiding principle on convictions or AEDPA.

To contact the reporter on this story: Jessica DaSilva at

To contact the editor responsible for this story: C. Reilly Larson at

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