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     Criminal Justice, the Death Penalty and Habeas Corpus:
        Statement of Vivian Berger, ACLU General Counsel

For IMMEDIATE RELEASE   
September 27, 1994            

	WASHINGTON -- As in prior years, the pre-October Supreme Court
docket contains a number of criminal matters. Three involve
death-sentenced prisoners; a fourth, which does not, raises a question of
habeas doctrine, as does one of the capital cases. If past history is any
guide, the number of appeals in the capital and habeas categories will
have doubled by the end of the Term. 

	The ACLU and others against the death penalty will be closely
watching our newest Associate Justice, Stephen Breyer. His replacement of
Justice Blackmun -- who had come to oppose this punishment as fiercely as
Justices Brennan and Marshall -- cannot, of course, improve the prospects
of death row litigants. But I predict that Justice Breyer, as new to the
area as Justice Ginsburg a year ago, will, like her, adopt a moderate and
open-minded approach to the issue. 

	Two of the pending capital cases, Schlup v. Delo and Kyles v.
Whitley, present variations on a theme of increasing concern to the Court:
factual innocence. Schlup, who was held to have forfeited a claim of
ineffective assistance of counsel, sought to overcome this barrier by
demonstrating his "actual innocence" to qualify for the "miscarriage of
justice" exception to the rigorous rules barring habeas access to
prisoners with procedurally defaulted, successive or abusive contentions.
Confronted with precedents (Sawyer v. Whitley (1992) and Kuhlmann v.
Wilson (1986)) arguably facing in different directions, the Court must
determine whether the petitioner need only make a "colorable showing of
factual innocence" or whether he has to adduce "clear and convincing
evidence" that, but for constitutional error, no reasonable juror would
have found him guilty. 

	While the issue is technical, the facts of this prison murder case
are extremely compelling. Schlup's proof includes a videotape that places
him far from the scene of the killing at the relevant time, and 18
witnesses -- with no motivation to lie for him -- who swear that he took
no part in the crime. In these circumstances, the Court may have granted
review as much to redress blatant injustice as to clarify legal
principles. 

	That hypothesis plainly supports the decision to hear Kyles's
intensely fact-bound appeal. Urging inadequacy of counsel and the
withholding of exculpatory evidence, Kyles poses no novel questions. yet
Judge King's dissenting statement in the Fifth Circuit ("For the first
time in my fourteen years on this court ... I have serious reservations
whether the State has sentenced to death the right man") surely provided
cause for concern in the minds of at least four of the justices. 

	The non-death penalty habeas case, O'Neal v. McAninch, builds,
like Schlup, on recent precedent. Brecht v. Abrahamson (1993), held that a
federal court should sustain a state conviction despite constitutional
error that could not be proven harmless beyond a reasonable doubt pursuant
to the then-prevailing test. In the habeas setting, a flawed conviction
would be preserved on the lesser showing that the error did not have
"substantial and injurious effect or influence in determining the jury's
verdict." O'Neal presents the question whether the state or the prisoner
bears the burden of proof on prejudice under Brecht's diluted standard.
The ACLU urges that Brecht does not prevent, and general principles of law
compel, placing this onus upon the state -- where it has traditionally
rested. 

	In the general criminal area, Arizona v. Evans is potentially the
most important case on the current docket. The Arizona Supreme Court
affirmed the suppression of marijuana seized from the defendant's car when
an officer took him into custody after a computer check, made during a
traffic stop, disclosed an outstanding misdemeanor warrant for his arrest.
Later, it turned out that the warrant had been quashed. The state contends
that suppression was improper because the officer reasonably relied on the
ostensible warrant, whose continued presence in the computer resulted from
an error by court personnel rather than police. The ACLU argues that the
limited exception to the exclusionary rule, fashioned in United States v.
Leon (1984), cannot salvage this concededly illegal seizure since Leon
applies solely to actions grounded on a defective warrant -- not on a
non-existent one. 

	For many years, the Court has been blatantly hostile to Fourth
Amendment claims. If it upholds the state's position, it will have gone
far toward adopting the global "good faith" exception that the
exclusionary rules's opponents have tried, persistently if unsuccessfully,
to get the Congress to enact. 

	A final cases bears brief mention as an indicator of the Court's
interest in exploring issues regarding the state of mind required for
conviction under various federal criminal statutes. The Ninth Circuit, in
United States v. X-Citement Video Inc., struck down a law barring
distribution of child pornography that failed, according to the panel
majority, to include as an element knowledge of the actor's underage
status. It is likely that the justices, agreeing with the Solicitor
General, will construe the statute to require "scienter," or knowledge, to
avoid constitutional problems. If they do so, this decision (First
Amendment concerns aside), would form part of a series in which the Court
has rejected a strict liability interpretation -- the one usually advanced
by the government. 

                            --endit--
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