Autistic Son Killer’s Suicide Leaves Habeas Issue Unresolved

Welcome back to Opening Argument, a reported column where I dig into interesting legal controversies and questions that have divided circuit courts. Today: a look at the standard for habeas claims.

Gigi Jordan committed suicide a week before the US Supreme Court was scheduled to consider hearing her last appeal.

The multimillionaire pharmaceutical executive, who was convicted of first degree manslaughter in 2014 for killing her autistic son, had sought a new trial.

She asked the justices to settle a question in habeas cases that has divided appellate courts and made it harder for state prisoners in some parts of the country to get relief from federal courts. Jordan asked if state prisoners have to point to a Supreme Court ruling in a case that’s factually identical to theirs in order to prove their constitutional rights were violated and they’re being unfairly imprisoned as a result.

It’s a question attorneys and legal scholars say will for sure come back to the court, even though her death means the end of her case.

“The Supreme Court at some point is going to have to weigh in,” said Jordan’s attorney, McDermott Will & Emery partner Michael Kimberly.

In Jordan’s case, it was a courtroom closure that gave rise to her federal habeas appeal. During her trial, the state court judge had cleared the courtroom to discuss a website that had been created to criticize the court for conducting an unfair trial. Jordan argued the judge made this decision without the required justification, violating her Sixth Amendment right to a public trial.

The US District Court for the Southern District of New York agreed it was a violation of clearly established federal law, but the US Court of Appeals for Second Circuit reversed. The appeals court said it couldn’t grant Jordan relief because the Supreme Court had not ruled there’s a public trial right for the type of ancillary hearing that took place during her courtroom closure.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, habeas relief is allowed when state court proceedings result in a decision that was “contrary to,” or involved an “unreasonable application of” clearly established federal law.

Madeline Cohen, a capital appellate attorney in Colorado, said the Second Circuit is conflating the two standards for habeas relief under that law.

The “contrary to” clause says you have to apply this rule when you see the same set of facts, while the “unreasonable application of” clause says this is the law and you’ve applied it incorrectly to this set of facts, Cohen explained.

“What the Second Circuit is saying is you can only unreasonably apply the law to the exact same facts on the magical chance they should reappear,” she said. “It’s completely absurd.”

Jordan was found dead Dec. 30 in her Brooklyn apartment, a day after Justice Sonia Sotomayor denied her emergency request to remain out of prison while the court considered her appeal.

“It was an unreasoned order, so it’s hard to say exactly what motivated Justice Sotomayor’s decision,” Kimberly said, adding that they didn’t take it as a hopeful sign the court would agree to hear Jordan’s case, which is now moot.

In the petition, Kimberly and Jordan’s co-counsel had pointed to habeas decisions from the First, Sixth, and Eleventh Circuits in which those courts essentially ruled it wasn’t necessary to have a factually identical case to find that a courtroom closure was unlawful.

Eric M. Freedman, a professor of constitutional rights at Hofstra University’s Maurice A. Deane School of Law, pointed out there’s only a small set of cases the Supreme Court takes each term.

“If you’re going to go search for US Supreme Court precedent on point, you are going to be denying a huge number of entirely meritorious habeas corpus claims,” he said.

But had Jordan lived, there’s no guarantee the court would have taken her case or ruled in her favor.

As UC Berkeley School of Law Dean Erwin Chemerinsky noted in the American Bar Association Journal article in June, the court has significantly restricted the availability of habeas corpus in recent years by creating numerous restrictions.

“The only pressure for them to fix this is that it’s structurally correct in terms of the justice system, it’s legally right in terms of their own precedents about qualified immunity, and it’s in the interest of justice because it enables the lower courts to do the right thing without someone having to win the lottery of a cert. grant and a case directly on point,” Freedman said.

But political pragmatism, he said, tends to favor the status quo.

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