The spirit of the '90s is alive in criminal justice

Marshall v. Sec’y, Fla. Dep’t of Corr., No. 13-13775 (11th Cir. July 12, 2016).

In the aftermath of the Oklahoma City bombing and in the midst of a reelection campaign, Bill Clinton signed AEDPA into law. Sponsored by the very man seeking to replace Clinton in office, AEDPA restricted the federal courts’ power to grant writs of habeas corpus. Prisoners convicted in state court can now be granted the writ only if their conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or if the conviction was “based on an unreasonable determination of the facts.” Under this law, an unconstitutionally convicted prisoner can’t get relief from the federal courts if he can’t point to a specific Supreme Court precedent that the state courts misapplied beyond all dispute. 

Two years after President Clinton put his signature on AEDPA, somebody robbed a Pizza Hut in Winter Haven, Florida, taking $261 dollars. An employee identified the robber as a black man in his young twenties, about 5’4”, 115 pounds, dark-skinned. Later that night, the police came across Johnny Marshall, a 32-year-old black man, about 5’8”, 180 pounds, light-skinned. Despite no evidence that Marshall was connected to the robbery, police took Marshall to the Pizza Hut employee, who quickly identified him as the robber. Based on the employee’s identification, Marshall was convicted of robbery and sentenced to life imprisonment because he was on prison release. 

In this habeas proceeding, Marshall argues that his trial lawyer provided him with ineffective assistance of counsel. That lawyer, Marshall says, should have moved to suppress the Pizza Hut employee’s identification on the ground that it was obtained as a result of the police’s unconstitutional seizure of Marshall. But the Eleventh Circuit holds that the lawyer’s failure to move to suppress cannot get Marshall a writ of habeas corpus, because this failure was just not quite incompetent enough. 

Judge Rosenbaum concurs separately. While Marshall’s lawyer was unconstitutionally ineffective, that is not enough under AEDPA. Judge Rosenbaum is not happy about this result: “Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there.” Marshall’s only hope is clemency from Governor Rick Scott—which is to say, not much hope at all.