Thursday, March 24, 2011

U.S. v. Buenrostro (9th Cir. - March 23, 2011)

Let me try my hand at writing a concurrence to this one:

Martin, J., concurring:

I can't fault my colleagues for their holding.  That's what the statute indeed means.

But let's just be clear what we're saying.  As well as what we've come to.

Let me just change the facts a bit.  It's now your son, not Buenrostro.  He's 19 years old, and made a huge error.  He and four friends drove a car with drugs in it from Florida to Virginia.  He was caught and charged with conspiracy.

You bailed him out.  You talked to him.  He knew what he did was wrong.  You thought about cutting him loose, but you ultimately decided that (1) he had indeed changed -- maybe this was the wake-up call he needed -- and (2) he's still your son.  You love him.  You will help him try to diminish -- but not eliminate -- his penalty.  He'll be in trouble, but he'll have a life.  With your help, he'll turn this around.

So you hire him a lawyer.  You're not rich, but you pay the guy some money.  He seems okay.  His suit's a little wrinkled, he's not always on top of things, but he's nice enough , and seems to be experienced in criminal law.  So you go with him.  He says it's a serious charge, but there's a decent chance that your son could avoid serious punishment, and there's good chance he might even be acquitted.  You go to trial, and sit in the front row while your son is judged.

Your fears come true.  He's found guilty.

The lawyer says he'll appeal, and does, but nothing comes of it.  Your son goes to prison.

He writes you.  Tells you stories.  The loneliness.  The isolation.  The abuse.  You visit him.  He's terrible.  He's living a nightmare.

You hire another lawyer to file a habeas claim.  To try to minimize your son's sentence or get him out.  It gets filed.  You read it.  Something about an trial error your wrinkled-suit lawyer allegedly made.  Evidence or something.  Doesn't matter.  Denied.  All the way up.

It's now six months later.  Your hear a knock on your door.  It's the first lawyer you hired.  He comes in.  Hat in hand.  Says he has something to tell you.

He says he's a recovering alcoholic.  Has made a lot of mistakes in life.  Something about a twelve step process and a need to make amends.  He's got a secret that's been burning his soul for years.  The same number of years your son has been in prison.

He says the prosecutor offered your son a deal before trial.  Six months.  A deal you know your son would have taken.  But the lawyer admits that he never told your son about the offer.  He's not sure why.  Whether it was because he was drinking or wanted a big victory or simply forgot, he doesn't know.  But he knows he did it.  He's sorry.  He's willing to say what he's done.  No matter what it costs him.

Did I mention, by the way, that your son was sentenced to life in prison?  For your 19-year old son.  For a drug crime.  That's sixty years longer than the deal he was offered and that you -- and even your lawyer -- knows he'd take.  If only he had ever been given the chance.

So you hire yet another lawyer.  File another habeas petition.  Telling everything you now know.  We'd have taken the deal.  My son has already been in prison for five years.  Ten times longer than if he had an even marginally competent lawyer.  Please stop the nightmare.  Don't let my son rot in prison until he's dead.  Newly discovered evidence that we didn't know about -- and couldn't have known -- until the lawyer came to our door.

My colleages hold that even if everything I've described above is true -- even if the government admits that it's all true -- your son stays in prison for the rest of his life.  Yes, he's been denied his right to counsel.  Yes, the result would have been different -- dramatically different -- if he'd been provided with his rights under the Constitution.  Too bad.  He'll die in the prison infirmary.  You can visit him on Saturdays for the rest of his life.  However long that might be.

That's what the habeas statute says.  Because we just don't care.  It's usually not our son.  It's a 22-year old African-American we've never met.  Or 26-year old Hispanic.  Or a guy named Jose Luis Buenrostro.  Someone we've never met.  Never cared about.  Never lived next door.  It's more efficient not to hear these claims.  To say that no matter how terrible your story, no matter how unjust, we don't want to hear it.  So make procedural rules that don't even let you get in the door.

That's what the statute says.  That's what we've come to.  That's what we let happen.  That's the law.