Yesterday, the MSSC issued an order in an Atkins proceeding, including this statement:
The trial judge held an evidentiary hearing on this matter on August 16-17, 2010. Following the hearing, the circuit court ordered the State and Chase’s counsel to submit proposed findings of fact and conclusions of law. The State submitted a fifty-seven page Proposed Findings of Fact and conclusions of Law. The trial judge signed the State’s submission verbatim, including leaving the title “Proposed Findings of Fact and Conclusions of Law,” raising concerns in this death-penalty case.
I agree that that should “raise concerns” … in any case. But is that the law?
If we are to adopt and apply a “heightened-scrutiny” standard, simple fairness and justice requires us to publish that standard – in more than name – to the bench and bar. And because that has not been done – and because we decline to do it today – we shall continue to apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact. And should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party – upon proper proof – may seek a new trial.
Bluewater Logistics, LLC v. Williford, 55 So. 3d 148, 157 (Miss. 2011). Of course, the Court applies “heightened scrutiny” in all capital cases. But in Williford, the Court snarkily professed to have no idea what “heightened scrutiny” could possibly even mean, and hence how to apply it. Which would be bad news for capital defendants, I guess, except the same Court somehow managed to figure out how to do it in the present instance.
(Author of Williford? Dickinson, J. Author of the quoted order in Chase? Dickinson, P.J. “Oh, Justice Dickinson — I have Justice Dickinson here on line one. Will you take the call?”)
Now I am experiencing a heightened level of confusion.
Heightened inscrutability? Glad it’s not just me, then.
One way to look at this, if you like the rule in Williford (I’m not sure I do) is that it’s a good working example of “hard cases make bad law.” It’s just hard to choke down a trial judge signing a 50+ page proposed finding, accepting everything down to the word “proposed.” Maybe the honest thing is to say, “OK, we got it. The rule in Williford may need to be revisited.”
That said, the death penalty / post-conviction process is creating the tensions that produced this order in ways that have nothing to do with heightened scrutiny in that area (a concept that, in practice, certainly hasn’t commanded five votes on that court in memory, whatever might be said in the texts of the opinions).
Even an advocate of the death penalty ought to be bothered by this result because of how federal review works: Surely, this would create the prospect that the state court findings of fact were not entitled to the usual deference, particularly given what I know about the briefs usually filed by the attorney general in death penalty cases. I would be startled if they didn’t overstate and oversell facts beyond what the testimony would support (yes, I know your answer then would be “review that”). But I think this creates a real risk the findings would not be respected, particularly in a context in which the A.G.s office never concedes an inch in these cases.
I would hope, also, there is at least some sentiment on the court that they should cease punting federal issues– that the state courts, top to bottom, need to take issues in death penalty cases more seriously than they have taken them.
Fed issues bring out the Phil Bryant in our courts.
I just keep finding the same court, same justices even, writing ops with no apparent clue as to their own precedents. What are they doing up there?