If You Don't Like the Facts, Change Them

At this week’s Republican National Convention, former New York City Mayor (and U.S. Attorney) Rudolf Gulliani stated that when a trial lawyer doesn’t like the facts, he or she simply changes them.  This week’s Sixth Circuit ruling in Tucker v. Palmer is a wonderful example of this principle.
Tucker was a State appeal of the grant of a habeas corpus.  Mr. Tucker was convicted of home invasion of his former neighbor’s home.  U.S. Magistrate Komives and U.S. District Judge Zatkoff granted a writ of habeas corpus finding no evidence that the Defendant committed the crime.  A sharply divided Sixth Circuit reinstated the convictions.  What is striking about the case is the dueling use of facts between Judge Ackerman (for the majority) and Judge Keith (in the minority) and how AEDPA deference can be used to conceal poor state court workmanship.
On a hot summer day, Nicholas Sutliff was mowing his back lawn.  He had locked his front door, but left the back door unlocked for access to the home.  While he was mowing, Mr. Sutliff saw Raymond Tucker jump over a low fence in his backyard and run by Mr. Sutliff.  Raymond Tucker used to live next to Mr. Sutliff, but had moved out “many years” before; the Tucker family still lived next door. 
Mr. Sutliff checked his back door, saw it was ajar, briefly checked his house and found nothing amiss. Judge Ackerman does not state whether the neighbors were the Tuckers, or whether Raymond was visiting.  He then briefly spoke to his neighbors to see if they had seen Raymond that day and then returned home and checked his house more carefully.  Mr. Stuliff then noticed two rings missing from his dresser. He reported it to the police, Mr. Tucker was arrested, and then convicted. 
Judge Ackerman’s opinion makes a convincing case that this was a routine burglary case and that the only question was whether home invasion could be sustained on circumstantial evidence.  If this was the case, plainly Judge Zatkoff  was wrong granting the writ.
Judge Keith’s dissent, however, describes a significantly different case and points out that this might easily be a case where an innocent might have convicted.  Mr. Sutliff who was painted by the majority as a competent witness with good observation skills and knowledge of the facts, was painted as a very different gentleman in the dissent. 
Mr. Sutliff was an individual with very “poor vision” due to his diabetes, who was not wearing his glasses, that his “eyes fluctuate,” when he identified an individual he had not seen in years.  Mr. Tucker had moved out of his parent’s home a full twenty years earlier.   It had been several years since Mr. Sutliff had seen Mr. Tucker. 
While Judge Ackerman points to the sharpness of Mr. Sutliff’s recall; Judge Keith points to the fact that the dresser was cluttered and that Mr. Sutliff thought he had put his rings there.  Judge Ackerman’s opinion is premised on the fact that the state court judge convicted Mr. Tucker because it thought that Mr. Sutliff stated that he saw Mr. Tucker entering his home.  This was a point that Mr. Sutliff stated the exact opposite.  Even though the state judge based his finding of facts on a critical mistake of facts, the majority ignores the fact that the state judge made such an error (a statutory AEDPA exception to the deference rule) and then “hides behind the AEDPA statute and claims that because its hand are tied, injustice must prevail.”   According to Judge Keith:  “just saying it, does not make it so.” 
The majority placed a great deal of evidence on ambiguous evidence that it characterized as flight and more importantly on Mr. Tucker’s not speaking to Mr. Sutliff.  Reading the opinion, however, it is clear that Mr Sutliff and Mr. Tucker did not get along.  Inferring guilt from silence on an on the street passing is hardly proof of anything. 
In reading this dueling recitation of the facts, it seems like politicians may not be the only ones who need a factcheck.org.