…or at least deserve to.
Here is how New York Times columnist David Brooks begins his character evisceration of Ted Cruz:
“In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.
Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.
Some justices were skeptical. “Is there some rule that you can’t confess error in your state?” Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.”
From this, Brooks goes on to conclude…
…Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism: an overzealous application of the letter of the law in a way that violates the spirit of the law, as well as fairness and mercy….Cruz’s speeches are marked by what you might call pagan brutalism. There is not a hint of compassion, gentleness and mercy. Instead, his speeches are marked by a long list of enemies, and vows to crush, shred, destroy, bomb them.
Cruz’s behavior in the Haley case [Dretke v. Haley] does nothing of the sort. The columnist intentionally—I’m assuming that he read the case, now—misrepresented what the case was about, how the court reacted, and what Cruz’s ethical duties were regarding it. As it happens, I share much of Brooks’ dislike of Cruz’s rhetoric. This case, however, tells us nothing about Cruz’s character. It tells us that that as Solicitor General of Texas, Cruz did his job, which was to represent his client’s position.
James Taranto, the pretty damn brilliant Wall Street Journal blogger, wit and conservative pundit, nails Brooks to the wall. He writes in part…
The tell—what led us to think Brooks probably wasn’t shooting straight here—is his unexplained segue from the skepticism of “some justices,” including Kennedy, to Haley’s release thanks to “the court system.” We inferred that Cruz had won the case, and we inferred correctly. The vote was 6-3, with Kennedy among the dissenters. The majority opinion was written by Justice Sandra Day O’Connor and joined by, among others, Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.
If arguing against Haley’s legal position “reveals something interesting about Cruz’s character,” what does deciding against it reveal about the character of O’Connor, Ginsburg, Breyer and the others in the majority? Don’t worry, there won’t be a test. The answer is nada; the question is rhetorical and demonstrates the falsity of Brooks’s premise.
That is not the limit of Brooks’s deception, which begins in the very first paragraph with the assertion that “prosecutors incorrectly applied a habitual offender law.” We naturally read that to mean Haley was doing time for a crime he didn’t commit—that he was harshly sentenced under a “three strikes” law but had been convicted for only one or two prior felonies.
In fact, Haley did have the requisite two prior felony convictions. From the syllabus: “As it turned out, the evidence presented at the penalty phase showed that respondent [Haley] had committed his second offense three days before his first conviction became final, meaning that he was not eligible for the habitual offender enhancement.”
Thus the error here was procedural, not substantive: Haley had been duly convicted of three felonies, but because of an accident of timing, the second one should not have counted under Texas law. He was, in other words, trying to get off on a technicality.
That is not to say he should not have. The law is the law, and there was no dispute that Texas officials erred. They too were pleading a technicality: “that respondent had procedurally defaulted his sufficiency of the evidence claim.” The question before the court was whether “the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders.”
Well, that’s not quite right either, but it’s good enough to expose Brooks. (I have read the decision.) First, though Brooks deceitfully suggested otherwise to make Haley look like Jean Valjean, the respondent had committed three felonies…he just committed #2 so fast that it technically happened before #1 was official, so it shouldn’t have counted. When a felon is committing crimes that close together, the term “habitual offender” couldn’t be more appropriate. The question is whether this was nonetheless a technicality that made application of the third strike law impossible, and it was. But Haley’s defense attorney missed it. He didn’t raise the technicality, so one question became whether it was waived. To appeal in trials, a lawyer has to be able to argue that the court or the prosecution did something wrong, while the defense was doing everything right. (Or that the defense was incompetent, which, we find in the opinion, was tried as an argument and failed.) That was not the case here. From the majority opinion..
If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent’s trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18, 1991, and attempted robbery on September 9, 1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991–three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State’s witness or to put on any evidence.
The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of 16½ years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent’s conviction and sentence; the Texas Court of Criminal Appeals refused respondent’s petition for discretionary review.
Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87-88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent’s related ineffective assistance of counsel claim, saying only that “counsel was not ineffective” for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent’s state habeas application. Id., at 109.
In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118-119; id., at 122, 124, 126-127. The State conceded that respondent was “correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140. Rather than agree to re-sentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal.
Both sides are bound by iron-clad procedural rules so the system can be orderly. Non-lawyers, like Brooks, seem to think that it’s the state’s attorney’s duty to just be judge and jury and fix everything, but that’s not his role. Texas has an interest, and so does society, in making sure that defendants don’t get to change the rules as they go along. I’m not certain, having read all the opinions, that the Court got it right, but Cruz cannot be criticized for being an advocate (too good an advocate, I guess Brooks would say) for the position that if a defendant waives a defense in trial and on direct appeal, that defense is gone.There are many troubling “actual innocence” cases, but not this one. Haley was “actually innocent” of the three strikes law, not because he was actually innocent of any of the three felonies charged, but because a timing technicality made the felony in the middle ineligible. There were no allegations that the prosecutor hid this fact, or that the State wouldn’t have dropped the three strikes charge had it been discovered at trial. Cruz took the position since the technicality wasn’t raised, and since Haley’s conduct didn’t make applying the “habitual offender” label unjust, the jury’s verdict should stand. Of course, the legal form this position took before the Supreme Court is far more complicated than that. A sample, from the opinion..
Contrary to the dissent’s view, see post, at 2 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be “clear” or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals…
The point is that there was were legitimate procedural legal issues in dispute, that needed to be determined, and that needed capable advocates pro and con.. Haley was a repeat felon, and Texas had a legitimate interest in keeping him locked up as long as the jury had decided was appropriate, considering all of his crimes. The procedural rules appeared to allow that, with an unsettled interpretation requiring affirmation or rejection. That Cruz, in his role as solicitor general took the position that the original sentence should stand doesn’t make him brutal, or overzealous. It makes him an ethical lawyer.
“Brooks’s treatment of this case is either deliberately deceptive or recklessly ignorant,” writes Taranto. “It may raise questions of character, but not Ted Cruz’s.”
Let’s look at what Brooks did:
1. He misrepresented the facts, making Haley appear like an innocent man because he performed his second felony so fast his first one hadn’t caught up to it, the little angel.
2. He oversimplified the issues, when it was the complex nature of the issues that made the Supreme Court take the case.
3. He cherry-picked one question in oral argument that perhaps didn’t even represent the questioning justice’s opinion, and made sure it was one of the conservative justices, so Cruz’s advocacy would appear extreme.
4. He didn’t mention that the Court, and not by a slim margin, agreed with Cruz’s position, with liberal justices—you know, the nice ones—siding with him.
That’s cheating. It’s dishonest…sloppy journalism and nasty punditry. Brooks knows that virtually none of his readers will check the case, because they trust him. More importantly, they don’t like Ted Cruz, so confirmation bias takes over. Bravo to Taranto for sniffing out the rot.
Now we know that David Brooks, once the scholarly, mild-mannered, token moderate among the Times’ op-ed stable of angry left attack dogs, has no more objectivity or integrity than the worst of his stable-mates. I don’t support Cruz, whom I regard as dangerous, any more than I support Trump, Hillary, Sanders, or Carson, all unqualified or unfit to be President, or both. When I am making that case, however, I am ethically bound to use real evidence, which with these bozos is just lying around for someone to pick up. Like the corrupt police detective in “Touch of Evil,” who frames those whom he knows are guilty, Brooks and others who manufacture proof for their uncritical fans are worse than those they try to destroy.
If Brooks doesn’t apologize for his column—an ethical newspaper would make him—then he deserves to join Brian Williams, Bill O’Reilly, Rolling Stone and others on the rapidly growing list of liars masquerading as journalists.