Comments on "The Need for Comity"

Carrie Bowden's superb student Note1 on dual sovereignty and federal court review of suppression issues epitomizes the best of what student law review work can bring to those of us in the non-academic legal community. In the first place, it gives a balanced and accurate view of the background and context of an important area of law. I often rely on student work of this nature for a better understanding of complex legal issues presented in the cases that come before me. Even more important, however, the Note proposes a novel solution for a troubling dilemma. Whether one accepts the proposed solution or not, one cannot help but be influenced by this fresh look at an issue that is often resolved by simple rote recitation of old precedent.I know from my experience on the bench that the problem illuminated by the Note has intense practical application. In a recent case tried before me,2 I was faced with a successive federal prosecution of a twelve-year-old triple homicide, initiated after state authorities had failed to obtain a conviction of the defendant at a trial in state court in 1992. State authorities charged the defendant with the murders, but prior to trial, the state judge suppressed the evidence from the defendant's automobile on the ground that the local police had unconstitutionally carried out the search, and the suppression was upheld on an appeal by the prosecutor.3 Perhaps because there was no other physical evidence linking the defendant to the crime, the state jury acquitted him. The defendant testified in his own behalf and claimed that he had not been at the crime scene. Because of the earlier suppression, the state jury never knew of the evidence relating to the defendant's car.After additional investigation, the federal government reopened the case and indicted the defendant for committing the murders in furtherance of a continuing criminal enterprise-a federal offense.4 The defendant's counsel again filed a motion to suppress.5 I heard evidence similar to that previously presented to the state judge and reached a different conclusion as to the legality of the search and thus denied the motion to suppress.6 Different views of the facts largely formed the basis for the conflicting decisions. The state judge had disbelieved the police officers who testified as to their method of entering the garage where they found the car,7 while I found their testimony credible.8 This time, with the evidence of the car not suppressed, a federal jury convicted the defendant of the murders.9The American system of dual sovereignty has been a mystery, even to lawyers, since it was first introduced in our Constitution. James Madison, widely considered the father of the Constitution, if there is one, felt that his most important suggestion, and one that eventually failed, was to give Congress the express and unlimited power to invalidate any state law.10 Although the Supremacy Clause11 does give federal law preeminence within its jurisdiction, judges have struggled ever since the adoption of the Constitution with the relationship between the courts of our dual sovereigns. The balance in this relationship has tilted one way or the other, largely depending upon the dominant judicial or political ideology of the time.12It is entirely logical, as suggested in the Note, that federal deference to state court decisions in habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)13 ought to be balanced by such deference to other types of state court criminal determinations. The difficulty, as I see it, is that congressional mandate imposed the deference in habeas corpus. As a federal judge, I would have preferred that Congress not limit my ability to find the facts anew when a state prisoner asserts a constitutional claim. I see it as an appropriate part of my job to decide on my own whether continued imprisonment violates a state prisoner's federal constitutional rights. I have the highest respect for the state judiciary, particularly in Virginia, but the fact remains that the United States Constitution affords the federal judiciary an independence not typically present in most state judicial systems. …