[UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a "Facial Challenge" and here.]
A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moose, in which Judge Motz joined. Judge Diaz dissented.
The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.” In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”
This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.
To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.
The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:
(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.
The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.
As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”
Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.
In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.
There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.
The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.
Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.
In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.
The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.
[...] at least one commentator (and a dissenting judge on the panel) believes that the court was incorrect, at least for its holding that the law was facially unconstitutional [...]
Prof. Walsh,
On your last point, I’d refer you to AmJur:
“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
16 Am. Jur. 2d, Sec. §§ 177, 256.
A similar argument could be made involving Section 256 of the Alabama Constitution, which still requires segregated education. I could be wrong, but I don’t believe that constitutional section’s legitimacy survived Brown v. Board of Education.
This quotation captures some of what is wrong about a legislative conception of constitutional adjudication as having effected some change in the state legal code.
To say that the Virginia “anti-sodomy provision” did not “survive” suggests that the provision was once alive and now is dead, with Lawrence having made the kill. But if one follows the AmJur view, then Virginia’s anti-sodomy provision was never alive (at least never alive after enactment of the Fourteenth Amendment). Moreover, the “general rule” stated by AmJur is not true for all purposes (just as, by analogy, it is sometimes misleading to say that an unjust law is not a law at all).
In any event, this all assumes that a “statute” is unconstitutional, rather than some of its applications (which is what Lawrence‘s due process holding addressed).
Thanks, Joshua – glad it’s not just me puzzled by Walsh on this one.
Prof. Walsh,
Interesting retort. I’m fairly certain that Brown also only addressed one application of the “separate but equal” doctrine of Plessy. In fact, Chief Justice Warren’s famous use of the dolls study was, at the time, meant to show how school segregation inevitably produced unequal effects. Go back and read that opinion, and you’ll see that the Court never explicitly overruled Plessy. Mysteriously, however, everyone knew that Brown sounded the death knell of the Plessy doctrine.
Regardless, Justice Kennedy’s opinion in Lawrence explicitly endorsed Justice Stevens’s dissent in Bowers–which included an attack on the entirety of Georgia’s anti-sodomy statute (“In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by 16-6-2 of the Georgia Criminal Code…. [T]he Georgia statute cannot be enforced as it is written ….”) (Bowers v. Hardwick, Stevens, J., dissenting). This endorsement could plausibly have been read as a green light to treat all anti-sodomy laws as unconstitutional.
Incidentally, it also strikes me that the quotation you are using–where Justice Kennedy is stressing how Lawrence was a case involving adults–was included in what amounts to a conclusion-oriented paragraph. For instance, he also stressed in that same paragraph how Lawrence did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Yet no one has ever argued that this last sentence indicates how Lawrence should be read as foreclosing the equal-protection arguments about same-sex marriage.
Oh, one more thing: Did you clerk for Justice Scalia around this time? Did he write a dissent in Lawrence? I can’t remember.
Thanks for the follow-up comment. I did not intend my prior response as a “retort,” but rather an explanation why the AmJur quotation was consistent with the views I had expressed in the post. In any event, I don’t see anything in your first comment or my response to it that we disagree about.
As to the four new points:
(1) The failure of Brown itself to deal forthrightly with “separate but equal” outside the field of public education is a standard criticism of Chief Justice Warren’s opinion for the Court. And it is why the Supreme Court had to issue summary per curiam opinions extending Brown. In this respect, Brown is highly unusual and does not help figure out the best reading of Lawrence.
(2) The aspects of Justice Stevens’s dissenting opinion in Bowers discussed by Justice Kennedy’s opinion for the Court in Lawrence do not deal with the question of facial vs. as-applied invalidation. We may disagree on this, but I do not think it sound to view the favorable mention part an opinion that dissents from a later-overturned decision as a “green light” to adopt as law every other part of that dissenting opinion.
(3) I agree that Justice Kennedy’s “conclusion-oriented” paragraph contains a number of statements about what the decision in Lawrence was not about, including minors and same-sex marriage.
(4) I clerked for Justice Scalia the Term after the Court decided Lawrence; but yes, of course, he did write a dissent.
“This endorsement could plausibly have been read as a green light to treat all anti-sodomy laws as unconstitutional.”
Josh, your statement really highlights the problem with this embarrassing opinion. For the 4cir to be correct here–although you’d never glean this from the opinion, because they never recite the relevant standards–their position on the merits of the statute’s constitutionality doesn’t just have to be plausible, it has to be *so absolutely correct* that no fairminded person could conceivably disagree.
Maybe if the Supreme Court repeats this, say, 40 more times, in simpler language, the 9th/6th/4th will start to catch on. Surely they’re as exasperated as I am… http://www2.bloomberglaw.com/desktop/public/document/Harrington_v_Richter_131_S_Ct_770_178_L_Ed_2d_624_2011_Court_Opin
Joe,
I’m well aware of AEDPA’s high standard–and I’m sure the Fourth Circuit’s judges are, as well. But it seems that when the Supreme Court says that anti-sodomy laws are unconstitutional, and the Virginia Court of Appeals later on says, “yes, but…” that fits within AEDPA’s language of being “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 USC Sec. 2254(d). Their “but” is the problem, because the statute at issue doesn’t include the caveats that would fit the facts of this case…so they needed to add something to that statute in order for it to fit within Prof. Walsh’s exception to Lawrence’s general rule.
I think the fundamental problem people have with the opinion here is its mix of realism and formalism. Formally, Texas’s (and Georgia’s old) anti-sodomy laws became nullities when Lawrence was handed down. If you don’t believe rejecting the holding in Bowers meant that, this strikes me as trying to hold onto whatever vestiges of a bygone era that can be had and is, in fact, “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id.
Look, Lawrence was either a due process case or an equal protection case. When people try to make it both, things get confused because Justice Kennedy’s purple prose sometimes supports either. But it is unlikely that the justices would go further than necessary to resolve the case and I therefore think the due process reading is the only one that makes sense. Nevertheless, supporters of gay rights like to read it more as an equal protection decision.
If that is true, that would mean that legislating against sodomy–without anything more–violates Lawrence and that statute is therefore unconstitutional. Prof. Walsh’s point is that Moose fits into a different case because it involves a 17-year old minor. That’s fair, but the predicate felony in this case didn’t actually include such a relevant caveat. It was basically just a general anti-sodomy statute, and thereore void. The Virginia legislature, like other states, didn’t want to acknowledge that Lawrence should have any impact, and therefore didn’t amend their statute to fit Lawrence’s exceptions. Too bad for them, because if they had simply acknowledged reality, Mr. MacDonald’s conduct would have easily fit within the caveats Justice Kennedy discussed in his conslusion as Prof. Walsh notes.
The answer to this problem is better legislators who actually care about their constitutional boundaries. Saying Lawrence didn’t really invalidate anti-sodomy statutes, but just Texas’s, is unreasonable.
Also, I’ve never seen anyone lump the Fourth Circuit with the Sixth and Ninth Circuits regarding habeas reviews.
If the Judges on the panel are aware of AEDPA and Harrington, is there a charitable theory about why they ignore the analysis dictated by SCOTUS precedent? Unless I’m missing something, this panel doesn’t even tell us whether they’re basing their holding on the “unreasonable application of” or the “contrary to” exception. They don’t even allege that the case meets either standard laid out by the Supreme Court. Like the Ninth Circuit in Harrington, they jump straight from “wrong” to “gets past 2254(d).” Under your “unreasonable application” theory, the court is implicitly holding that the VA courts (and Prof. Walsh) aren’t “fairminded,” but they never bother to tell us that.
“I’ve never seen anyone lump the Fourth Circuit with the Sixth and Ninth Circuits regarding habeas reviews.” I wouldn’t have until now, either, but if I read this opinion without identifying information, I would’ve guessed the Sixth or Ninth. It’s a shame.
If fn. 21 is supposed to suggest that, unlike you, they’re employing the “contrary to” exception, they get there by skipping the analysis. That prong only goes for rulings which are directly contrary to holdings of the Court. The court didn’t directly hold that antisodomy statutes were facially unconstitutional. 4cir only gets to that implied “holding” through its analysis of dicta, which it is absolutely not permitted to take into account in a 2254(d) analysis.
“Because … the anti-sodomy provision is unconstitutional when applied to any person, the state court of appeals and the district court were incorrect in deeming the anti-sodomy provision to be constitutional as applied to Mac-
Donald…. [T]he state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.” Slip op. at 11.
As for the dicta argument, “The Supreme Court often articulates positions through language that an unsympathetic audience might dismiss as dictum…and it expects these formulations to be followed.” Ryan v. United States, 688 F.3d 845 (7th Cir. 2012).
Sorry about the incorrect Seventh Circuit citation; it should be United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998) (Easterbrook, J.). Still the same court and judge, though.
It seems like you’re confusing the habeas context with general constitutional jurisprudence. Clearly SCOTUS generally expects its dicta to be followed, but it’s explicitly forbidden this in the context of 2254(d). (Terry) Williams v. Taylor , 529 U.S. 362 (2000): “clearly established Federal law, as determined by the Supreme Court of the United States … refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.”
The panel does recite the statute, but they ignore (and would fail) the analysis dictated by the Court. Exactly like 9Cir in Harrington.
You’re right that I missed their (laughable) assertion that this falls under *both* exceptions. So they do hold that the VA courts, Prof. Walsh, and Judge Diaz aren’t fairminded. Heh.
Here’s an illustrative example of what the contrary to prong requires: http://www.law.cornell.edu/supct/html/05-785.ZO.html. Though their “contrary to” holding is less ludicrous than their “unreasonable application” holding.
I guess what I’m saying is that Lawrence’s reasoning explicitly rejected Bowers–and by extension denounced both Texas and Georgia’s (by-then-)defunct anti-sodomy statutes. This means that the parts of the opinion dealing with substantive due process were NOT dicta. The entire argument about how that case was only “as-applied” rather than a facial attack is basically splitting hairs too thin given that the reasoning used by Justice Kennedy was a rather broad application of substantive due process for consensual sexual conduct.
And this is an entirely different sphere of constitutional law than what went on with Harrington. The point the Fourth Circuit is making is that the ENTIRE anti-sodomy section was voided by Lawrence, and it is unreasonable and contrary to Lawrence to believe otherwise. That is quite a different matter from disagreeing about the nuanced application of Strickland–which reasonable jurists disagree on all of the time and involves a highly deferential review in and of itself.
Hey, if you think that state anti-sodomy statutes are still valid laws after Lawrence, go with that. In this case, the Virginia Court of Appeals knew that wasn’t the case and had to basically re-write the statute to fit it into the exception that Prof. Walsh hangs his hat on.
Nevertheless, many people believe that it is unreasonable to not read Lawrence to have voided these statutes because that decision either meant that: (1) consenting adults have a right to do these things sexually between themselves without their conduct being criminalized or (2) same-sex relationships should not be criminalized. Most people I’ve interacted with go with the former rather than the latter. I have heard some people insist on the latter, however, although this has always been associated with arguments surrounding heightened scrutiny for sexual orientation and hasn’t generally been adopted.
This is still joe, it’s just mobile joe!
And I take it that you would also hold that these parties are not fairminded?
The bottom line is that the statute was essentially erased after Lawrence. Anyone who disagrees with that probably has an ax to grind.
We’re probably going in circles now. But that is *not* the bottom line. That’s a starting-point. But the “bottom line” to a court that cared about the law would be:
(1) Re contrary to–whether it’s clearly established *by the holding* of Lawrence, *without reference to dicta* that Lawrence invalidated statutes on a facial instead of as-applied basis. “Essentially” and “probably” don’t get you there.
(2) Re unreasonable application–whether it’s inconceivable that anyone could fair-mindedly believe that Lawrence invalidated statutes as-applied instead of facially.
Maybe the panel thinks this, but (1) if so, the panel is just nuts, and (2) the panel didn’t say it. Maybe you think this, but you haven’t said it either–anytime you need to put in a qualifier like “probably,” you’ve completely eliminated the only ground for relief, and avoided the relevant legal question.
Similarly, when you say that the state’s approach is “splitting hairs too thin given that the reasoning used by Justice Kennedy was a rather broad application”–that just doesn’t get you anywhere near passing the 2254(d); it sounds more like an explicit rejection of all the 2254(d) jurisprudence.
The underlying legal area is different from Harrington, but the 4cir’s approach to AEDPA precisely mirror’s Harrington’s: conclusion that the state court erred + bald assertion that it violated AEDPA – any analysis of the actual standard for violating AEDPA as laid out by SCOTUS.
What’s most interesting about your response is that you equate my use of the word “essentially” into “probably,” and from there go off onto how AEDPA deference under Harrington should apply because the state court disagreed. Here’s a tip under Harrington: the state court will have ALWAYS disagreed. Otherwise, there wouldn’t be an appeal to the federal courts. That’s the real key to your jurisprudence in your conclusion: the state should always win.
I will freely admit, and agree with you, that this should almost always be the case (that is, a state collateral review and constitutional decisionmaking should be deferred to by the federal courts). But when a state statute has become a nullity (as, for example, Alabama’s constitutional mandate preventing desegregation has), that is not anything that should be respected as “law” under the Federal Constitution. It is completely void–regardless of whether a state court of appeals may have twisted the law into saying something beyond what its text actually says in an attempt to save it.
I honestly believe this argument we’re having isn’t actually about AEDPA. Hell, I’ve clerked at a state court of appeals and understand how difficult post-conviction-relief petitions can be. On the flip side, I’ve clerked at a federal court of appeals and been frustrated when some judges don’t feel inclined to defer at all to the state courts’ review. But in my opinion, the conflict over this decision is actually about minimizing the import of Lawrence–not AEDPA deference.
You said both “essentially” and “probably” and I was trying to quote both. Should’ve been clearer about that.
I assume you, Anonymous, are actually Joe. On the “probably” aspect, I should note that that hedging goes to my last post’s last sentence: people trying to minimize Lawrence’s impact and importance will probably try to limit the case to its specific facts. Normally, those people will be prosecutors or people who fundamentally disagree with the result in that case. It did not in any way relate to the underlying legal premise that the anti-sodomy law (which it looks like relates all the way back to 1778) became a dead letter after Lawrence was handed down.
Since the legal question (and the one I was trying to ask) is whether such people could conceivably be fair minded, I took your “probably have am axe to grind” to mean “probably aren’t fair minded.” If that is the answer, then you don’t get to relief under “unreasonable application.” Maybe you meant something else, in which case my question is still “could any fair minded person conceivably agree with judge Diaz and professor Walsh”?
I’d say that anyone who argues that Virginia’s anti-sodomy law is still validly enforceable after the decision in Lawrence is not fair-minded. Hell, Texas’s anti-sodomy statute is still on the books in that state and I’m sure analogous fact scenarios continue to pop up there, as well.
But bending over backwards to say that the facts here are slightly different and that should be sufficient is not a reasonable position to take because it is based on narrowing Justice Kennedy’s entire due-process analysis to one case and one case only. The common-law system doesn’t and has never worked like that. And where, as here (with statutes that are almost word-for-word copies of Texas’s or Georgia’s old one), jurists should recognized that distinguishing away can merely heal the sick–it can’t raise the dead. Straight anti-sodomy laws (pun intended) can’t be salvaged after Lawrence because they are directly contrary to its reasoning. And this is true regardless of whether the precise facts of MacDonald’s case could have been constitutionally prosecuted under a different statute (i.e., one that would have prohibited sodomy against minors)–which is the entire thrust of the language that Prof. Walsh kept citing from the conclusion of Justice Kennedy’s opinion.
Virginia should either elect new legislators to change its statute, or it should shut up and suffer the consequences–such as bungled prosecutions and a crap load of man hours and attorney’s fees. Just saying that it’s good enough for government work and MacDonald’s a scumbag who could have been constitutionally prosecuted under a different criminal law isn’t enough if we want to be a nation of law, not men. But I’m betting that those legislators won’t want to do that anytime soon because it’s harder to get re-elected if you admit either that you made a mistake and/or don’t actually care about the Constitution. Good times.
“Discovered by the Germans in 1904, they named it San Diago, which of course in German means a whale’s vagina.”
“No, there’s no way that’s correct.”
“I’m sorry, I was trying to impress you. I don’t know what it means. I’ll be honest, I don’t think anyone knows what it means anymore. Scholars maintain that the translation was lost hundreds of years ago.”
“Doesn’t it mean Saint Diego?”
No. No.”
“No, that’s what it means.”
“Really.”
“Agree to disagree.”
Here are links to the state court decision at issue , and two other cases on which its analysis is based (McDonald & Singson).
Many years ago, as a young soldier, I took an oath to uphold and defend the Constitution of the United States against all enemies foreign AND DOMESTIC (emphasis added) I never imagined the enemy would end up being the very ones I stood in harm’s way to protect. “For those who have never fought for it, freedom has a flavor that the protected will never know.” (on a veterans memorial)
I also took a vow to love (“that scumbag”) my husband on whose behalf I have endured countless weeks and months writing the petitions that got us to this point — at the risk of running afoul of the rules against the unauthorized practice of law.
What I want each of you to take from this post is this: #1 What you think happened (via the opinions because the enemy was the prevailing party) and what REALLY happened are strickingly different, and #2 if any of you have ever enjoyed fellatio or cunnilingus in Virginia — you are felons — you just didn’t know it, and if Bill and Monica had been 4 miles south — yep.
The average person out here on the streets doesn’t know enough law to even know they have a right not to consent to searches, let alone how to understand all the badmitten you just played in your banters (I like you, Josh, you are #1)
If (the scumbag) William was indeed a creep – we wouldn’t be here, because I wouldn’t be here. What we need in the hellish society are more people willing to help fight against tyranny, provide investigations BEFORE trial — stop letting the innocent plea bargain (Alford is somewhat o.k.) but for God’s sake people BE REAL and realize that prosecutors who lie to grand juries by writing an Indictment with elements added that NOWHERE exists, WILL be exposed. The truth will always win out, and trust me, I am NEVER giving up on that day!
May you sleep well, and when you go in and say goodnight to your sleeping children, say a prayer of protection for your sons; that some 280 pound, just shy of 18-year old woman doesn’t stalk, harrass and assault them, too. Because you may just have to change your opinion on this whole mess and actually defend what’s right instead of a stupid, left-over-law that simply stinks of death.
Go about your business.
Staff Sergeant Carolynn E. MacDonald, US Army (Ret.)
The Scumbag;s wife — and proud of it.
Singson was affirmed with a footnote from Bowers v. Hardwick in the Opinion. He was too poor to go to federal court.
I am in the process of searching through every single record of persons who are registered sex offenders in Virginia. So far, I have combed through 23 individual counties/cities, and have now collected 28 people who have been convicted soley under 18.2-361(A) since June of 2003. Many affirmed under McDonald v. Commonwealth (bad law) Should any person lose 5 years of their life to prison to a BJ? Should anyone lose 10 years for asking for one?
Carolynn, I’ve already said I’m glad to see the petitioner released; it sounds like both the verdict and the legal theory are suspect. But that substantive question (“Should any person lose 5 years of their life to prison to a BJ? Should anyone lose 10 years for asking for one?”), to which the answer may well be “no,” is a very different question from the legal question at issue in federal habeas.
I don’t think Joshua was referring to your husband as a scumbag, either. I think he was attributing that statement to hypothetical state actors.
I agree with you, Joe — just felt like complaining a little bit — see, the COA was limited by the 4Cir to the one question of the statute being DOA; however, my habeas petition addressed a 1st Ammendment violation as well as a Sufficiency of the Evidence question, as well as an Equal Protection question, none of which were addressed… just poking at my own futility I guess… I know Joshua didn’t mean “Mac” is a scumbag — that was also toungue in cheek – mainly because around our neighborhood I too wear a big Scarlet Letter… it’s an occupational hazard that comes with the marriage license I suppose.
Props for working and fighting so hard for your husband on this. I really admire and respect that.
I welcome you to visit my story http://carolynnmacdonald.wordpress.com/
[...] In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. In a panel opinion [...]