The Importance of Humphreys v. Ozmint
Last week’s 10-4 ruling by the Fourth Circuit in Humphreys v. Ozmint gave readers a glimpse of relatively rare but emphatic disagreement between Judges Wilkinson and Luttig, both of whom have been mentioned prominently as potential Supreme Court nominees.
The case involved an appeal of a federal habeas petition that has already meandered its way through the South Carolina state court system twice, first through the trial and appellate process (including a refused petition for cert in the US Supreme Court) and then in state habeas proceedings. Humphreys was convicted of a murder he admitted to committing; the only issue at this stage is the sentence of death ordered by the trial judge in accordance with the jury’s recommendation.
The specific issue on appeal is the question of whether the prosecutor, in introducing and arguing victim-impact evidence in the sentencing phase of the case, overstepped the line established in Payne v. Tennessee prohibiting a comparison of the relative worths of the murderer and victim. Humphreys’ trial lawyer had not objected to the evidence and argument, leading to an ineffective-assistance claim on habeas in the state and federal systems. The US District Court dismissed the petition; a Fourth Circuit panel in 2004 found that the prosecutor’s comments were indeed improper, and remanded the case for resentencing. But after the grant of an en banc rehearing, the full court affirmed the district court, holding that the comments were permissible.
The opinions comprising the court’s action on the case are quite long, spanning 67 pages. The first 31 of those pages comprise the majority opinion, written by Senior Judge Hamilton. This opinion spells out the facts of the case, focusing on the prosecutor’s comments in detail, and applies the precedent set in Payne to hold that “we simply cannot conclude that the South Carolina Supreme Court unreasonably applied the Payne decision.”
Judge Wilkinson’s dissent runs 21 pages, and points out that the principles inherent in the majority’s ruling are, in the barest of paraphrases, wholly un-American. Near the end of his dissent, he writes, “I fully respect the prerogative of lawyers to make an emotional close. The prosecutor’s position as advocate must also afford him wide latitude of tactic. But the objective must at times extend beyond securing the state’s wishes at any cost.” He also compares the practice to that of the totalitarian regimes of the Twentieth Century: “Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country.” It is, by any measure and from any political standpoint, highly stirring prose.
The importance and likely effect of this prose sparked Judge Luttig to write a concurrence that is largely directed to refute some of these overarching philosophical claims. While the majority opinion addresses Judge Wilkinson’s arguments, the concurrence takes pains to refute each point made by the dissent. While Senior Judge Hamilton expresses the majority’s view of the dissent’s points, Judge Luttig takes up a foil and fences with those arguments, with an earnestness equal to Judge Wilkinson’s.
Of course, this is far from the first occasion in which the two have differed. They did so, famously, in the en banc court’s ruling in Hamdi v. Rumsfeld, the Fourth Circuit decision that was ultimately reversed by the Supreme Court last year. That duel of words arose in the remarkable context of written opinions on a denial of an en banc rehearing suggestion — not unprecedented, but rarely a forum for such lively debate. The two judges again took diametrically opposed positions in Hamdi, but with the twist of Judge Luttig’s staking out the more liberal (actually, libertarian) position, in favor of Hamdi. It is this opinion that was, in a sense, vindicated by the Supreme Court’s subsequent action in the case. Now, in Humphreys, Judge Luttig defends the right flank, and Judge Wilkinson raises the voice in favor of civil liberties.
For most people (Humphreys notably excepted), the actual outcome of this case is anticlimax. A confessed murderer remains on death row; death penalty opponents will rage; its proponents will express triumph; Constitutional scholars will dissect the majority opinion for its bearing on future cases involving victim-impact statements; and a number of those with some unease over the death penalty will become even more uneasy with the entire process. The very length of these opinions may diminish the last factor, as few people not passionately attached to one side of the issue or the other will see fit to wade through 67 pages of legal scholarship, albeit of this very high quality.
In fact, the lasting effect of this case may well be in Supreme Court confirmation hearings. In the event Judge Wilkinson or Judge Luttig is considered for an opening on the court in the near future, these two opinions are likely to draw the attention of a Senator interested in the nominee’s position on civil rights or death penalty cases. At that point, the opinions are likely to play at least a small role in shaping the nation’s legal future.