According to the new blog, Decision of the Day, in Davis v. Straub, 03-2262, the 6th Circuit holds affirms a denial of habeas corpus to a man that claims that his trial was tainted when the prosecutor talked about how a witness would be violating waiving his fifth amendment rights by testifying. (I bet the prosecutor was really concerned with the witness’ fifth amendment rights.) But, most notably:
In dissent, Judge Merritt argues that the majority decision achieves an unfortunate trifecta: gutting Article III judicial power, suspending the writ of habeas corpus, and stranding a probably innocent man in jail for life. The dissent also raises serious concerns with AEDPA’s constitutionality, in that it gives too much deference to state courts and prevents federal courts from deciding constitutional issues.
I am sure that half the web will say that it is obviously frivolous to assert that someone is being imprisoned unlawfully and that our court system is being unduly burdened with such claims, because a truly innocent man would never have been arrested, and the prosecutor would not have intimidated the witness into asserting his fifth amendment rights had the defendant not been guilty of this crime or lived a life of sin.
The dissent writes:
Likewise, Congress cannot require Article III courts to defer to state courts’ reading of federal law by preventing the federal judiciary from independently interpreting and applying federal law.
On the other hand, since the dissent cites the federalist papers, for the proposition that the judicial power includes the power to interpret the constitution, therefore it can't be critisized for being activist. Right?
Oh, if it turns out that this guy was factually innocent, we can blame the “activist jury” who seduced a vulnerable prosecutor.