"A Hole in the Law?"

November 12, 2008

Earlier today, the Supreme Court heard oral arguments in Bell v. Kellya Virginia case that has important implications for death penalty litigation.

The issue in the case is complex.  Under federal law, federal courts are required to give great deference to state court rulings on claims raised in a federal  habeas petition that have already been adjudicated in state courts.  So, a federal court will NOT consider whether the state court’s decision was right or wrong, but only whether it was “unreasonable”. 

But what if the petitioner brings new evidence on a claim to the federal court, evidence the state court never considered?  Does the federal court still have to be deferential, despite the fact that it has more information at its disposal?  Or can it proceed as if the claim is new, and rule on its merits, not just on the reasonableness of the state court’s judgment?

Bell is claiming that a federal court wrongly deferred to a state court’s ruling on his claim of ineffectiveness of counsel.  Bell argues that although his claim was heard by a state court – which denied him relief – the ineffectiveness of counsel claim he raised in the Court of Appeals for the Fourth Circuit was based on new evidence and thus should have decided on the merits.  Instead, the Fourth Circuit – erroneously, Bell contends – deferred to the state court’s original ruling.  Essentially, the new evidence was never a factor.

So, in a somewhat spirited debate, the Supreme Court today faced an important question: 

If the Court rules in favor of Bell, there is a risk, as Justice Alito noted today, that prisoners’ attorneys will simply need to “find some additonal mitigation evidence” to get a review on the mertis.  Yet, if the Court finds this risk to be too great, and rules that the Fourth Circuit was right to defer to the state court’s judgment, there is a risk that legitimate new evidence will never be heard by a federal court.  This, as Justice Souter suggested today, would be “a very clear hole in the law.”  If the Court accepts that this hole exists, it will be more difficult in future cases to have new evidence heard, or to overturn state court judgments that are not clearly unreasonable (even if they might be wrong).