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In my article, "Politics and Prisoners," I touched upon the subject of the case load of federal judges being so burdensome as to indicate that criminal defendants are not receiving a full de novo review of Petitions for a Writ of Habeas Corpus. That article was written for another entire purpose and my discussion of this issue was cursory. In fact, while the preliminary numbers I had compiled up to the date of that article had started showing a statistical impossibility due to the limitations of the human mind, I had not completed extrapolating those numbers at the time I wrote that article. I have now completed my research and finished crunching the numbers involved.
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I can find no error in my calculations, nor in the rather startling conclusions those numbers lead me to assert below. It all comes down to this. The Judicial System in the United States is not only bankrupt of human resources, but is deceiving the American People, and I can prove it statistically.
I challenge any reader to check the numbers below and prove I am wrong. I admit to not wanting to believe what I am exposing here, and that what I have found confirms suspicions I have had for some time now, but did not have the means to prove.
Unless otherwise noted, the Tables and Statistics below appear in the Sourcebook Of Criminal Justice Statistics, 2000, published by the Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, report number NCJ-190251.
In the year 2000 a total of 31,560 prisoner petitions challenging their convictions were filed in the 94 United States District Courts of the U.S.. The breakdown of those petitions is as follows:
6,341 Federal Prisoner
28 U.S.C. §2255 motions to vacate.
3,870 Federal Prisoner 28 U.S.C. §2241
Habeas Corpus Petitions.
21,349 State Prisoner 28 U.S.C. §2254
Habeas Corpus Petitions.
31,560 Total. (See, Table
5.61, p. 467)
In the year 2000, 11,303 prisoners, both state and federal, filed appeals to a United States Court of Appeals from the District Court's decision denying their Motions to Vacate or Habeas petitions. The majority of those appeals were taken by the prisoner after losing the Petition, some were taken by the government after it lost the petition. (See, Table
5.63, p. 469). This is a total of 24.3% of all appeals filed in the
United States Courts of appeals in 2000. (Table
5.63, p. 469, showing a total of 46,487 cases filed in 2000.)
For purposes of this articles, I have decrease the percentage of Habeas Corpus appeals to 20%. This is because the number of Habeas Corpus petitions filed has been steadily increasing since the passing of the 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA). The cases terminated in 2000 by the U.S. Courts of Appeals would have included a slightly lower number of Habeas petitions because the average litigation time-frame is around 2 years for a decision to be entered in the U.S. District Court that can be appealed, and around one year while the Court of Appeals decides the case. Remarkably, reducing the percentage of Habeas cases terminated in 2000 to 20%, from the 24.3% filed in 2000, made no difference in the overall numbers, because more cases were terminated than were filed in 2000 in U.S. Courts of Appeals.
Table
5.62, p. 468 states that 56,512 cases were terminated in the U.S. Courts of Appeals in the year 2000. The average percent of Habeas petitions filed from 1996 to 1999 is 20.37% (Table
5.63, p. 469). Using the 20% reduced number that adjusts for the lower number of Habeas cases filed in 1996-99 still leaves 11,302 of those 56,512 terminated appeal cases as Habeas petitions or motions to vacate, only one number less than the total number of new Habeas appeals filed in the year 2000, which were:
2,671 Federal Prisoner 28 U.S.C. §2255
motions to vacate.
1,398 Federal Prisoner 28 U.S.C.
§2241 Habeas Corpus Petitions.
7,234 State Prisoner 28 U.S.C.
§2254 Habeas Corpus Petitions.
11,303 Total. (See, Table 5.63,
p. 469)
As shown by Table 5.61,
p. 467, only 35.8% of all prisoners filed an appeal from the denial of their Petitions for a Writ of Habeas Corpus, Motions to Vacate, or were granted a Certificate of Appealability, as newly required by the 1996 AEDPA.
For purposes of calculating the numbers of pages of documents involved in these cases below, I am going to use the 11,303 number of new appeals filed in the year 2000. The one case which is the difference in the numbers between those cases filed in 2000, and those appeals terminated in 2000, is statistically insignificant. Further, the numbers below do not include the numbers of pages of the briefs filed in Objections to the Magistrate's R&R, or in the U.S. Courts of Appeals briefs. Those briefs alone exceed 1,300,000 pages of documents in 11,303 cases. I have left out those pages to create a built-in margin of error, and so as to not be accused of overstating the problem. But even with me omitting over 1,300,000 pages from the following calculations, to account for cases such as guilty pleas which have fewer transcripts pages (and which are a small percentage of Habeas Corpus filings), the 11,303 Habeas appeals still evidence a serious problem exists of which the public is unaware. Also, before proceeding to the calculations, it is important I make certain you understand the Standard of Review required in these prisoner Habeas cases. Even those cases held procedurally defaulted at some level of the State court system, and the federal prisoner's petitions, require a review by the court for a manifest miscarriage of justice sufficient to over come the procedural default. This review must be a "de novo" review of all the records of the case.
Table
5.62, p. 468 shows there are a total of 167 Judgeships that are authorized by Congress in the 12 United States Courts of Appeals (excluding the Federal Circuit Court not relevant to the issue addressed), and that those Courts operate exclusively as 3-Judge Panels, for a total of 55 panels available on any one day to hear cases. All three judges on the panel must review any Habeas Corpus petition de novo. The phrase
"de novo" means:
"De Novo.
Anew; afresh; a second time."
"Hearing de novo. Generally, a new hearing or a
hearing for the second time, contemplating an entire trial in the same
manner in which matter was originally heard and a review of previous
hearing. Trying matter anew the same as if it had not been heard
before and as if no decision had been previously rendered. On hearing
"de novo" court hears matter as court of original and not
appellate jurisdiction." Black's Law Dictionary, 1991, at pages 300 & 498.
The judges reviewing a State prisoner's Habeas Corpus, or a Federal prisoner's Motion to Vacate, are required to read every part of the record of the conviction. This includes the pretrial briefs, the pretrial hearing transcripts, the trial transcripts, the Appeal briefs, the Appeals Court decision, the State Supreme Court briefs and decision, the Habeas Corpus Petition, the Magistrate's Report and Recommendation, the Objections to the Magistrate's Report and Recommendation, the U.S. District Court Judge's Opinion and briefs and rulings on the Certificate of Appealability. Each judge on the panel of the Court of Appeals must review every page of the entire proceedings below their court, and render a decision, "de novo," as if no other court has ever heard the issues raised and ruled upon them before.
Further, the Judge cannot delegate this to a law clerk. Every United states citizen is entitled to a de novo review of his or her case on Petition for Habeas Corpus by an Article III Judge –i.e., a Judge appointed by the President of the United States, and approved by Congress, to sit for life upon a United states Court. This is mandated by law.
There were 28,560 appeals filed in
the United states Courts of Appeals in 1985. There were 46,487 appeals
filed in 2000 (Table
5.63, pa.469). This is an increase of 62.7% in the number of cases.
Yet in the same time, the number of Judges has only increased from 156 Judges to
present day 167 Judges, or an increase of 7% in the number of Judges sitting on
the U.S. Courts of Appeals (Table
5.62, p.468).
If, as stated at Table
5.62, p. 468, there were 167 Judges, sitting as 55 three-Judge panels on any
given day during the year 2000, and they decided on and terminated a total of
56,512 appeals, then each panel averaged a total of 1027 cases per year, or 4
(3.95) cases per day in a 260 day working year. Further, 20% or 11,303 of
those cases were prisoner's (either State or Federal) Habeas Corpus petitions.
As stated above, these petitions require a full de novo review of
all the lower court transcripts and documents.
The number of documents each case involves can be calculated based on the length of the trial. But how many of the 11,303 cases involved what length of a trial? Statistics again give us the answer.
Whether in State or Federal Court,
criminal trials take about the same length of time for the prosecution to call
witnesses and present and argue the case. All other aspects of the trial
are also very similar because most States have based their Criminal Rules of
Procedure, Rules of Evidence and Jury Instructions on their counterparts in the
federal system. Of a total of 6,746 criminal trials in Federal Courts in
2000, the following cases lasted for the described periods of time. I have
calculated and added the percentage each category comprises of the total number
of trials (See, Table
5.38, p. 452).
Further, based on my personal 13 years of experience as a criminal appellate paralegal, I have assigned the approximate number of transcript pages each trial of varying length will generate, and placed those numbers to the right of the chart. These transcript pages totals include the average number of pre-trial hearing transcripts held on Discovery Motions and Motions to Suppress, which appear to some extent in every case, but not the briefing.
LENGTHS OF CRIMINAL TRIALS COMPLETED IN U.S. COURTS IN 2000
|
Length
|
# Trials
|
% of Total
|
Average
Transcript Pages
|
|
1 Day
|
3,260
|
(.4832)
|
300 pages
|
|
2 Days
|
1,135
|
(.1682)
|
550 pages
|
| 3 Days |
832
|
(.1233)
|
800 pages
|
| 4 to 9 Days |
1,227
|
(.1818)
|
1,550 Avg. pages
|
| 10 to 19 Days |
222
|
(.0329)
|
2,800 Avg. pages
|
| 20+ Days |
70
|
(.0103)
|
4,000 Avg. pages
|
|
|
|
|
| Totals |
6,746
|
(.9997)
(rounded)
(Table 5.38,
p. 452)
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Applying these percentages to the 11,303 Habeas cases, the total average number of only trial transcript pages in the cases requiring a de novo review and dismissed in 2000 by the U.S. Courts of Appeals are as follow:
TOTAL TRANSCRIPT PAGES IN 11,297 HABEAS CASES
| Length |
Percent
|
# Trials
|
x |
Pages Each
|
= |
Total For Subset
|
| 1 Day |
(.4832)
|
5,461
|
|
300
|
|
1,638,300
|
| 2 Days |
(.1682)
|
1,901
|
|
550
|
|
1,045,550
|
| 3 Days |
(.1233)
|
1,393
|
|
800
|
|
1,114,400
|
| 4 to 9 Days |
(.1818)
|
2,054
|
|
1,550
|
|
3,183,700
|
| 10 to 19 Days |
(.0329)
|
372
|
|
2,800
|
|
1,041,600
|
| 20+ Days |
(.0103)
|
116
|
|
4,000
|
|
464,000
|
|
|
|
|
|
|
|
|
|
Total
Rounded Trials |
11,297
|
|
Total
Transcripts
|
|
8,487,550
pages
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Unfortunately, the 8½ million pages of transcripts the 11,303 Habeas cases terminated in the year 2000 by the United States Courts of Appeals generated are not the end of it. When dealing with over 11,000 cases, even a few pages can add up quickly. In addition to the transcripts, the Judges are also required to review:
| Pre-Trial Briefs |
|
|
| Average 40 pages x 11,303 = |
|
452,120 pages
|
| Direct Appeal Briefs |
|
|
| Defendant's Brief |
35 pages
|
|
|
Government's Brief
|
35 pages
|
|
|
Defendant's Reply Brief
|
15 pages
|
|
|
Government's Reply Brief
|
15 pages
|
|
|
|
|
| Total |
100 pages x 11,303 =
|
1,130,300
pages
|
| Appeals Court Opinion
(Avg.) |
|
|
| 10 pages x 11,303 = |
|
113,030 pages
|
Supreme Court
Briefs
(State or Federal) |
|
|
| Defendant's Brief |
20 pages
|
|
|
Government's Brief
|
20 pages
|
|
|
|
|
|
|
Total*
|
40 pages x 11,303 =
|
452,120 pages
|
*Jurisdictional Memoranda to State and Federal Courts vary in
allowed page length from 15 pages to 50 pages. I set this number on the
low side.
Supreme Court Opinion
(State or Federal) (Avg.) |
|
|
| Opinion* |
2 pages x 11,303 = |
22,606 pages
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*Most cases are declined jurisdiction by both
the State and Federal Supreme Courts. Death Penalty cases, and cases where
jurisdiction is accepted and the case heard on the merits, can sometimes receive
Opinions that are from 50 to 100 pages in length. Others receive a
one-page denial. I adjusted the page number to "2" to correctly
reflect those cases that do receive a lengthy opinion, since they are few in
number.
Average Post-Conviction
Filings for State Prisoners |
Post-Conviction
& Appeals* |
50 pages x 7,234 = |
361,700 pages
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*This applies only to State prisoner Habeas actions. The
number of State Habeas Corpus appeals are lower than total of Federal and State
prisoner Habeas appeals as is reflected in the 7,234 number. (See,
Table 5.63, p.
469)
Habeas Corpus
Required Forms & Traverse |
|
|
| Forms and Motions |
16 pages |
|
| Traverse to Response |
20 pages |
|
|
|
|
| Total |
36 pages x 11,303 = |
406,908 pages
|
| U.S. District Court Proceedings |
|
|
Magistrate's Report &
Recommendation |
20 pages x 11,303 =
|
226,060 pages
|
| U.S. District Judge's Opinion |
|
|
| Opinion |
10 pages x 11,303 = |
113,030 pages
|
Certificate of
Appealability Proceedings |
|
|
| Appellant's Brief |
30 pages |
|
| Government's Brief |
20 pages |
|
| Dist. Ct. Order |
5 pages |
|
|
|
|
| Total |
55 pages x 11,303 = |
621,665 pages
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The total number of pages generated by
11,303 State or Federal Habeas actions:
| Transcripts (11,297 cases) |
8,487,550
|
| Pre-Trial Briefs |
452,120
|
| Appeal Court Briefs |
1,130,300
|
| Appeal Court Opinion |
113,030
|
| Supreme Court Briefs |
452,120
|
| Supreme Court Opinions |
22,606
|
| State Post-Convictions & Appeals (7,234) |
361,700
|
| Habeas Corpus Forms & Traverse |
406,908
|
| U.S. District Court-Magistrate's R&R |
226,060
|
| U.S. District Court Judge Opinion (minimum) |
113.030
|
| Certificate of Appealability Proceedings |
621,665
|
|
|
| Total Pages Required De Novo
review. |
12,387,089
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In the year 2000, according to the statistics above, in order to render a complete de novo review of the 11,303 prisoner Habeas Corpus cases that were a part of the 56,512 cases terminated by the United States Courts of Appeals, bearing in mind this is only 20% of the total case load disposed of by the Courts in 2000, the 167 Judges, operating as 55 three-judge panels, would have had to read 615 pages each day, for the total 366 days of the year 2000. (2000 was a leap year, so they had one extra day to read. I would have to assume they needed it).
If the Judges worked a standard 260 day work year, each one would have had to read 866 pages of documents per day in order to give the prisoners Habeas Corpus actions a complete de novo review.
After the Judges completed reading these 866 pages of documents, they then had to complete the other 80% of their work for that work day.
Do the math.
55 panels x 260 work days = 14,300 work days.
12,387,089 total pages of documents divided by 14,300 = 866 pages a day.
55 panels times 366 working days = 20,130 working days.
12,387,089 pages of documents divided by 20,130 working days = 615 pages a day.
And that is for only 20% of the total cases the U.S. Courts of Appeals decided, terminated, disposed of in some manner, in the year 2000.
Even if you had 1320 Judges, instead of 167 Judges, operating in 440 three-Judge panels, they would still have to read 108 pages a day each just to decide the Habeas Corpus cases terminated in the year 2000, and again, that would only be 20% of the cases they did decide that year!
Based on the above numbers, the average Habeas Corpus Appeal consists of a total of 1,096 pages. That's not a ridiculous number of pages for a trial and several years of litigation. The Appendix in my personal appeal from the denial of my Petition for a Writ of Habeas Corpus was 2096 pages in length, not counting over 100 pages of briefing by the State Attorney General and me in the U.S. Court of Appeals, which as stated above, I have omitted from my calculations in all the above terminated cases.
As staffed and structured, our court system is inadequate to deal with the numbers of cases now being appealed.
It is not rational to conclude Judges are reading 866 pages a day, every day, and still doing another 80% of their work. The truth is simple and self-evident from the numbers above. The Judges are not reading these documents. Instead, some first-year attorney hired out of Harvard or Yale is skimming through this massive amount of documents and placing a short summary on the Judge's desk. The twenty or thirty page opinions issued in these cases are being written by these same law clerks and merely edited by the Judge, without the Judge ever viewing the facts or evidence underlying the claimed constitutional errors presented.
We, as citizens of the United States, are being denied our birthright –the review of our convictions by the Government for Constitutional error, by an Article III Federal Judge, who is appointed for life to guarantee impartiality by raising him above politics and public censure that could influence his decisions on heinous crimes.
Prisoners have been complaining their cases are not being decided fairly by the Federal Courts of Appeals for several years now. No one listens to them. The present 12 Circuit Courts of Appeals were set up over 100 years ago, when hundreds, not tens of thousands, of cases were being heard. The Ninth Circuit Court of Appeals hears and decides cases from eleven states.
It is time for a a complete overhaul of the Judicial System in the United States, the creation of more U.S. Courts of Appeals, and the tripling or quadrupling of the number of Federal Judgeships on those Courts of Appeals.
In every HabeasCorpus Appeal decided in the United States Courts of Appeals in this nation, the Judges of the three-Judge panel hearing the case affirmatively state they have "performed a de novo review of the issues." Since this has now been proven to be impossible, I suggest the entire Federal Appellate Judiciary is in Breach of their Oath of Office in a manner warranting Impeachment by the United States Senate, or a call for a mass resignation of the entire U.S. Federal Appellate Judiciary.
Until next time this is Jim Love reporting From the Front Line.
*The formula used in this study can be applied to any State Court Appellate system because Direct Appeals from criminal trials require a complete review of the trial court record. No previous study has approached the problem of appeals not being read by Judges from the standpoint of the total work load verses the numbers of work days available.
See the METHODOLOGY for this article.
James was convicted in a manufactured rape with no evidence whatsoever and a solid
alibi. After waiting eight years, the complaining witness alleged the felony took place while he was out of the country, and before they met!
SEE - PROOF OF INNOCENCE
More About
JAMES LOVE
Permission for reprint of this essay can be obtained from Jim Love at:
JAMES LOVE
#329-475
P.O. Box 56
Lebanon, OH 45036
JimLove@PrisonerLife.com
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