Sunday, January 6, 2013

Split Noted: Is The Stain Of Conviction A Collateral Consequence

Per Murray v. United States (1st Cir. Jan. 4, 2013)

A petition for the writ of coram nobis, or its lesser known cousin coram vobis, is often the last desperate filing made by a post-jailhouse lawyer.  The writ permits correction of "fundamental" errors in order to "achieve justice" when "no other remedy" is available.

The writ has been abolished in civil actions, superceded by Rule 60.  But it lives on in criminal actions.  In large part, it exists to provide review of convictions after the prisoner has served his sentence.

There is little enough jurisprudence regarding the legal standard applicable to the writ.  Nonetheless, the circuits appear to agree on certain fundamental elements that a petitioner/convict must prove:
  1. a fundamental error in the prior proceedings
  2. reasonableness in not having acted earlier (i.e., though habeas)
  3. collateral consequences from the prior proceedings (standing)
  4. interests of justice require granting the writ (no alternative remedy)
In this case, the First Circuit briefly notes  (11 n.6) an earlier decision (United States v. George, 676 F. 3d 249, 254 (1st Cir. 2012)) which described a circuit split on whether a conviction, standing alone, can satisfy the third element.  The CA1, CA2, CA3, CA5, and CA7 hold a conviction insufficient.  The CA4, CA9, and CA11 hold a conviction sufficient, and the CA6 has, sub silentio, done the same.

For me, the CA4, CA9, and CA11 have the better of the argument.  As the Supreme Court recently reiterated, albeit in the context of declining to extend the presumption:
 In the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality.  As we said in Sibron, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences."
Spencer v. Kemna, 523 U.S. 1, 12 (1997) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).  And in Sibron itself, the Court held:
[I]t is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action.
392 U.S. at 57.  So long as Sibron remains good law, as indeed it is, lower courts should apply a presumption of collateral consequences to criminal convictions.

Moreover, there is a larger point.  Assuming a petitioner proves the other elements for coram nobis, i.e., a fundamental error that was uncorrectable earlier, why should the petitioner (rather than the government) have the burden of proving collateral consequences?  The fundamental error, or the existence of a grave miscarriage of justice, should be sufficient, in itself, to overcome the interests of finality absent proof that the erroneous judgment has no effect.

Take, for example, two people convicted of honest-services fraud under 18 USC 1341 before McNally limited the statute to money or property fraud.  One is convicted in 1976 and sentenced to five years; the other convicted in 1986.  Should the former be deprived of the same remedy afforded the latter (i.e., expungement of his conviction) simply because simply because his appeals were exhausted and his sentence was served?  I think not.  Both did not commit a crime.  Both deserve to have their record and reputation restored, regardless of whether the former can actually prove a detrimental consequence.

Finally, the note on the first page of the First Circuit opinion suggests that Judge Boudin may be ill.  I have always admired Judge Boudin's intelligence and opinions.  I hope that my reading of the note is mistaken, but if it is not, I wish him all the best.

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