04 November 2009

Are You Smarter Than A Supreme Court Justice?

You know that the law of federal habeas corpus is broken when U.S. Supreme Court justices are deeply confused by it, and the lawyers arguing before them are having trouble explaining it, yet the only way a convicted state prisoner has a right to raise issues on federal habeas corpus appeal is without a lawyer.

Recall, that in Colorado, 99% of convicted criminal defendants have no education beyond a high school diploma, and that a large share are high school dropouts who do not even have a GED. Many don't speak English as their native language. Many, like the defendant in the case before the U.S. Supreme Court (a capital case, so he does have a pro bono lawyer), are mentally retarded.

Is it any wonder that federal habeas corpus reversals are common in capital cases, where criminal defendants typically secure pro bono lawyers at every stage of the process, while criminal defendants lose in 99% of non-capital cases where they are not represented by counsel?

Would it be any less fair to require inmates to solve calculus problems on their own to get relief, with calculus textbooks made available to the? Some inmates will get the right answer by dumb luck or with the help of a jailhouse lawyer, but the system unreasonably denies a fair hearing to the vast majority of people who have had their rights violated.

An intricate legal standard could make sense in the kind of case that only sophisticated parties engage in, the application of consolidated tax return regulations to multiple related corporate entities, for example. But, it makes no sense for sorting out the saved from the damned in a system where marginally literate prison inmates are representing themselves in federal court.

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