There are dissents, and then there are dissents.  But never have I read a dissent like this, from Tucker v. Palmer, out of the 6th Circuit.  This was an appeal from the district court’s  grant of habeas under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), which allows de novo review of the district court decision.

Tucker was convicted of a home invasion (what we used to call a burglary) based upon the homeowners observation of the Tucker climbing over a fence and running away from the house.  He was convicted after a jury trial, and lost his appeal due to delay, but the appellate court held that there was no issue worthy of excusing the delay.  Tucker sought a writ in federal court, which was granted based upon the magistrate’s report concluding that the evidence was insufficient, which was approved by the district court judge.

The 6th Circuit, showing the curious application of the AEDPA, applied the doubly-deferential standard to the case.  What this means is that, while the Circuit gives no deference to the decision of its own magistrate or district court judge, it does show deference to the decision of the jury and the Michigan appeals court.

At the end of the day, the 6th Circuit by 2-1 reversed the grant of habeas corpus.  And then the sparks flew.  From the dissent of Judge Damon J. Keith:

The majority’s opinion flagrantly violates the Fourteenth Amendment. I therefore vehemently DISSENT. It is “[b]etter that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries at 358. This powerful and wise axiom reveals that a court commits the ultimate injustice by convicting and imprisoning a person based on insufficient evidence. Such a judicial transgression contravenes the most important right our Constitution affords the accused: “the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); U.S. Const. Amend. XIV, § 1. Apparently neither the state trial judge nor the majority ever read or understood the Constitution, for in the instant matter, they recklessly disregarded this fundamental requirement of proof beyond a reasonable doubt by convicting Defendant Raymond Tucker of home invasion without any evidence sufficient to prove his guilt.

Holy guacamole!  Did he just accuse his brethren on the Circuit bench of having never read or understood the Constitution?  Why, I believe he did! 

The entire dissent is like this (and definitely worth a read), and Judge Keith reiterates that he “vehemently and vigorously dissents,” which I take to be akin to “strenuously objects” since he’s in the dissent.  But the judge clearly has been pushed over the top by this conviction of Tucker on the theory of “when there’s smoke, there’s fire” evidence.

One of the most offensive parts of the AEDPA is its deference, intended to shut most defendants out of habeas relief, whether procedurally or substantively.  In this case, where the magistrate, district court judge and one of three circuit judges believed that there was insufficient evidence, more specifically no evidence that the defendant ever entered the home he was convicted of invading, the absurdity of the double-deference as an excuse to ignore the lack of proof of guilty becomes clear.

Judges, like lawprofs, tend to show great courtesy to one another, even in disagreement as a matter of collegiality.  It appears that collegiality wasn’t the first thing on Judge Keith’s mind here.  I can’t say for certain that this is the strongest, perhaps even the wildest, dissent ever, but it is definitely up there.

Nice to see that some judges actually care about convicting innocent people, to the extent that they will go to the mats over it.

H/T  Orin at Volokh.