Justice Sotomayor throws a high hard one at borderline retarded death row inmates represented by court-appointed rookie attorneys who ignore the basic rules of defense lawyering.

Overlooked in last week’s hubbub over Citizens United was Obama nominee Sonia Sotomayor’s first majority opinion on a criminal procedure matter.  This is no small deal:  Liberal legal commentators warned Democrats that Sotomayor—a former prosecutor—has an overwhelming appellate record of upholding government action in criminal cases.  So it should come as no surprise that Sotomayor’s opinion in Wood v. Allen upheld the death penalty sentence of a defendant represented by a court-appointed  first year lawyer who, um, chose not to pursue and submit mitigating evidence of the defendant’s borderline retardation. (This is a standard “Just because I had ineffective counsel, that doesn’t mean I should be executed”, Strickland v. Washington case.)   

My problem isn’t with the Court’s ruling (other than the fact that the Supreme Court seems unalarmed by the extraordinary narrowing of Constitutional habeas review, especially when it means that the state is putting more of its citizens to death under auspicious circumstances).  My problem is that Sotomayor missed the whole point of having the Supreme Court decide an issue. 

One of the primary purposes of SCOTUS review is to clarify the law when separate circuit courts interpret statutes differently.  Here, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has two provisions for how to deal with federal habeas review in death penalty cases:  One that calls for action when the state court was unreasonable in its ruling, and one that says the defendant must rebut the presumption that the state was correct by clear and convincing  evidence.  Do you apply both?  Do you get to choose one?  Under what circumstances?  The Eighth and Eleventh Circuits apply both rules to all petitions, and the Third and Ninth Circuits say that the different rules apply to different circumstances. 

So, this is the when the Supreme Courts steps in to say who’s right.  Except when they don’t.  Even though about half the oral argument in the case was spent clarifying and narrowing the case to this question, Sotomayor’s opinion doesn’t answer it.  Her holding, which six other justices signed onto, simply said, hey, the borderline retarded guy doesn’t win either way. 

Well, thanks for that, J-Lo, but you didn’t help us out very much.  The Eighth Circuit is going to keep doing its thing, the Ninth is going to do the other thing, and nothing changes.  See you in another couple years when some other guy gets put on death row because his inexperienced, overworked public defender screws up.