Bench Memos

Law & the Courts

Another Summary Reversal of Sixth Circuit Coming Soon?

The Sixth Circuit has compiled an extraordinary record of having its grants of federal habeas relief—typically by liberal panels—overturned by the Supreme Court, often in summary rulings (that is, the Court has seen the error to be so clear that it has dispensed with merits briefing and oral argument). But some Sixth Circuit judges seem unwilling to learn their lesson. Take today’s divided panel opinion in Stermer v. Warren, where the panel majority (Judge Eric Clay, joined by Judge Karen Nelson Moore) ruled that a woman convicted of felony murder was entitled to relief on her claims of prosecutorial misconduct and ineffective assistance of counsel.

I can’t possibly summarize concisely the competing accounts in the 45-page majority opinion and in Judge Jeffrey Sutton’s 10-page dissent, so I will have to encourage interested readers to dive in themselves. I will instead provide here some excerpts from Sutton’s dissent:

With all respect to my colleagues, I do not see a plausible path for overturning Linda Stermer’s murder conviction. The evidence introduced in the state court trial left no doubt that she tried to burn her husband alive and ran him over with a car in the front yard of their house when that did not work. All that was missing was a film of the mariticide. None of the constitutional claims raised in her defense ever comes to grips with the reams of evidence against her. The path gets steeper and longer when one accounts for the strictures of the Antiterrorism and Effective Death Penalty Act. Today’s case, sad to say, explains why Congress felt compelled to tie the hands of federal judges in reviewing habeas claims in 1996 and why the U.S. Supreme Court should ensure that we adhere to it.…

Let’s review the bidding. One of three things happened that day: Todd killed himself; Todd died accidentally; or Linda murdered him. No one tries to pin the death on a third person.

The idea that Todd killed himself is a non-starter. Aside from the oddity of attempting suicide by lighting oneself on fire in a house that had plenty of firearms in it, that account does not explain the lacerations on Todd’s head or how he managed to make Linda’s car drive over him.

The possibility of an accident suspends belief. Two remarkably unlikely events would have to happen: Todd accidentally would have to set the house (and himself) on fire, and his wife accidentally would have to drive over him in the front yard. That is a lot of bad luck, all within 24 hours of another piece of misfortune: the disclosure that Linda was having an affair.

That leaves the last possibility, the only realistic one of the three—that Linda killed Todd after he discovered her affair and told her to leave the home (and her teenage sons). Nothing in the evidence answers any of the questions that point to Linda as the murderer. Why did Linda fill a can of gasoline on the morning of Todd’s death? Why did authorities find gasoline on Todd’s body and on towels in the washing machine? Why did Todd suffer head wounds from a blunt instrument? Why did Linda run him over nearly fifty feet away from the home and nowhere near the driveway in broad daylight? Why, after running him over, did she park the car behind the home rather than going to fetch help? Why didn’t she call the fire department or police? Why did she tell so many inconsistent stories to investigators? Why did she want to sneak back into her home to hide evidence from police? And why do so many witnesses have so many incriminating things to say?

Sutton eviscerates Stermer’s claims of prosecutorial misconduct (pp. 49-53) and of ineffective assistance of counsel (pp. 53-55).

Disclosure: Sutton and I clerked together for Justice Scalia, are friends, and are co-editors of the forthcoming The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, a collection of Scalia’s legal writings (along with a great foreword by Justice Kagan).

Most Popular

Immigration

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More
Immigration

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More
U.S.

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More
U.S.

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More

The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More

The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More
World

‘Professor Lockdown’ Modeler Resigns in Disgrace

Neil Ferguson is the British academic who created the infamous Imperial College model that warned Boris Johnson that, without an immediate lockdown, the coronavirus would cause 500,000 deaths and swamp the National Health Service. Johnson’s government promptly abandoned its Sweden-like “social ... Read More
World

‘Professor Lockdown’ Modeler Resigns in Disgrace

Neil Ferguson is the British academic who created the infamous Imperial College model that warned Boris Johnson that, without an immediate lockdown, the coronavirus would cause 500,000 deaths and swamp the National Health Service. Johnson’s government promptly abandoned its Sweden-like “social ... Read More

John Wayne: The Hero We Need Now

America fits into John Wayne's filmography, and this does not make America small. It makes John Wayne huge. The coronavirus has brought us back to the Wild West. Lonely lives, deserted streets, looks of distrust, and whiskey for throat disinfection; the scientific community has not made an official statement as ... Read More

John Wayne: The Hero We Need Now

America fits into John Wayne's filmography, and this does not make America small. It makes John Wayne huge. The coronavirus has brought us back to the Wild West. Lonely lives, deserted streets, looks of distrust, and whiskey for throat disinfection; the scientific community has not made an official statement as ... Read More