Habeas leaps from the pan and into the fire: Jacobs v. Scott and the Antiterrorism and Effective Penalty Act of 1996.-

AuthorBlumberg, David

The recent development of reliable scientific evidentiary

methods has made it possible to establish conclusively that a

disturbing number of persons who had been sentenced to

death were actually innocent.1

  1. INTRODUCTION

    As Justice Stevens indicated in the above comment, the need to protect those sentenced to death, but actually innocent of the crime, has grown more apparent. At the same time, recent developments in Congress and the Supreme Court have placed limits on habeas corpus review for all prisoners, but especially for those sentenced to death. The Rehnquist Court, in a series of cases, has limited the scope of habeas review to the point where it is a mere shadow of a protection. In addition, Congress recently enacted the Antiterrorism and Effective Death Penalty Act of 1996,(2) which narrows the Court's jurisdiction over death row petitions. It was adopted, in part, as a reaction to acts of domestic terrorism and, in part, due to political pressure exerted by Chief Justice Rehnquist and others on the Court. These steps have limited the only available remedy for state court prisoners sentenced to death to seek correction of constitutional errors in their convictions.

    This Note argues that the country is taking a wrong turn. Jacobs v. Scott(3) exemplifies the need for significant habeas corpus review. In addition, recent studies refute the articulated reasons for the political decision to limit review.(4) These studies show that habeas petitions neither undermine judicial efficiency nor contribute to a backlog on court calendars. In spite of these facts, recent developments deprive those accused of capital crimes of effective habeas review, thereby placing all prisoners, even those who are actually innocent, without recourse to correct convictions based on constitutional errors.

    Part II addresses the state of habeas corpus at the time of Jacobs.(5) It focuses on the procedural requirements petitioners must satisfy and demonstrates that habeas is not a system without bounds. Part III discusses the factual and procedural history of Jacobs up to, and including, the Fifth Circuit opinion.(6) Here, Jacobs demonstrates the continuing need for habeas review in capital cases. Part III also looks at the Supreme Court's treatment of Jacobs.(7) It attempts to explain Justice Stevens's dissent within the framework of the Court's habeas jurisprudence. Part IV summarizes recent studies of habeas.(8) These studies defeat the commonly held perceptions that death row habeas petitions result in unnecessary delay, excessive cost, and a heavy burden on the federal court system. Part V describes changes to habeas review as a result of the Antiterrorism and Effective Death Penalty Act of 1996.(9) The legislation is motivated by erroneous assumptions and will thwart attempts by future habeas petitioners to achieve justice. Part V also examines what would happen to Jacobs if his case arose after the enactment of the new law.(10) Finally, concluding remarks comment on the dismal future for habeas review as a result of congressional action and the philosophical stance of the current Court.

  2. Habeas Corpus(11)

    The Constitution provides for habeas corpus but does not define it. It only states that 'the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."(12) It provides for federal court review of a state or federal prisoner's claim that he or she is being held in violation of the Constitution.(13) Statutes and Supreme Court cases have established the Court's jurisdiction over habeas and defined its scope.(14) "This Court has repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence."(15)

    The difference in treatment of habeas under the Warren and Rehnquist Courts shows the Court's ability to define habeas through equitable considerations without great concern for statutory language.(16) Habeas was part of an overall expansion of defendants' rights under the Warren Court. (17) As one commentator noted, "the Warren Court chose the indirection of habeas review to enforce state compliance with the new criminal process requirements."(18) The Warren Court used habeas "as its enforcement arm for the provisions of the Bill of Rights, which it incorporated through the Fourteenth Amendment."(19)

    The Burger and Rehnquist Courts, like their predecessors, have promoted their own habeas agendas.(20) Their decisions, in sum, have blocked prisoner attempts to gain access to federal court.(21) The Court's stated goal is to improve judicial efficiency, conserve judicial resources, place greater weight on state court decisions, and bring finality to capital cases.(22) The Court has received criticism for failing to achieve its goals.(23) Further, it has violated its own philosophy by engaging in judicial activism24 and showing disrespect for precedent.(25)

    A mixed standard of reviewing habeas petitions has emerged from this judicial and political process. It includes a series of prerequisites to filing a petition.(26) A state prisoner must exhaust all remedies available in state courts before seeking review in federal Courts.27 Successive petitions, those that add issues to a previously submitted petition or a previously dismissed issue submitted in a second petition, are barred,(28) unless the petitioner can "establish `cause and prejudice' sufficient to excuse his failure to present his evidence in support of his first federal petition."(29) New claims, those not raised previously in state court, may not be raised if the court determines that the petitioner is somehow taking advantage of the system -- i.e., if the petition constitutes an "abuse of the writ."(30) If any of these conditions occurs, then the case may not be heard unless the court determines that "failure to hear the claims would constitute a `miscarriage of justice."'(31) This standard allows the court an escape to grant relief where appropriate, but it is infrequently exercised and unpredictably applied. In sum, these multiple prerequisites show that habeas is a system, for good or bad, with its limits.

    This Note focuses on habeas when used by state prisoners(32) attempting post-conviction review of their sentences by claiming that their convictions involved a constitutional violation.(33) In this context, a habeas petition provides state prisoners collateral review of state court decisions. In other words, this is where habeas empowers "federal court[s] to relitigate federal issues that were fully and fairly litigated in state court."(34)

    A successful habeas petition does not necessarily result in a reversed conviction. Instead, the case is remanded to the state courts for re-examination of the error that formed the basis for the court to grant habeas relief.(35) The case will likely result in either re-trial or re-sentencing.(36) Yet, as Jacobs discovered, it is a long road to a successful petition.

  3. Jacobs v. Scott: The Case Against Finality

    1. The Facts

      In February 1986, Etta Urdiales was murdered.(37) The police arrested Jesse Dewayne Jacobs seven months later and questioned him concerning her disappearance.38 He told the police that he would "tell them what they wanted to know' if in return they would promise to sentence him to death39 and grant him a visit with his girlfriend.(40) The District Attorney arranged the visit, and even before taking Jacobs's confession, promised him that the state would seek the death penalty if it matched the crime.(41) Jacobs waived his right to counsel and then confessed to the murder.(42)

      The confession contained the first of two versions of the events. According to the confession, Jacobs went to Urdiales's apartment, hit her on the head, and abducted her.(43) He took her to a wooded area before she regained consciousness, set her on a sleeping bag and shot her in the head.(44) Then he buried her in the same area.(45)

      More evidence pointed toward Jacobs after the confession. He took police to the grave site described in the confession where the police found Urdiales's body.(46) The position of the corpse and the bullet wound to the temple were just as Jacobs had described them.(47) In addition Jacobs admitted the murder to his girlfriend, both when she visited him in custody,(48) and in a letter he wrote to her from jail.(49) Throughout these admissions, Jacobs claimed he killed Urdiales to protect his sister, Bobbie Hogan,(50) who was involved in a relationship with Urdiales's estranged husband.(51)

      Jacobs changed his story at trial where he plead not guilty.(52) He recanted his confession, which was the foundation of the state's case against him.(53) Now Jacobs proclaimed a different chain of events; one that he insisted upon until his death.(54) In this version, Jacobs's aim was to help Hogan scare the victim, Urdiales, so she would leave Hogan alone.(55) Jacobs brought Urdiales to speak with Hogan inside an abandoned house.(56) He left the two women in the house and sat on the porch until he heard a gunshot.(57) He entered the house, saw Urdiales dead, and told his sister to leave and that "he would take care of things."(58) Then he buried the corpse.(59)

      On May 21, 1987 a jury convicted Jacobs of capital murder.(60) It is unclear whether Jacobs was convicted as the triggerman or as a conspirator.(61) The verdict alone does not answer the question because under the Texas statute the jury could convict him of murder for either role.(62) The prosecutor told the jury that Jacobs killed the victim, and a videotaped copy of the now renounced confession was shown to the jury.(63) Thus, the state's assertion that Jacobs committed the murder formed the basis of the conviction.(64) This same jury sentenced Jacobs to death.(65)

      During the sentencing phase of the trial, his court-appointed attorney neither called a witness, nor presented a closing argument, just as...

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