Gagne v. Booker, an en banc case published yesterday, has a lot going on. The 70-page decision includes a plurality opinion, two concurrences, two opinions concurring in the judgment only, and two dissents. The case is instructive on not only the legal issues it addresses – among them, federal habeas review, the admissibility of evidence, and the confrontation clause – but also on the motivations and allegiances of the judges that comprise our Circuit.
A Michigan jury convicted Lewis Gagne of two counts of first-degree criminal sexual misconduct. The victim, P.C., was Gagne’s ex-girlfriend. She claimed that on July 3, 2000, Gagne and his friend Donald Swathwood had forcibly raped and sodomized her. Gagne claimed that the three of them had had consensual group sex.
As part of his defense, Gagne wanted to put on evidence that (1) Gagne, P.C. and another man (not Swathwood) had on a prior occasion engaged in group sex; and (2) that P.C. had on a prior occasion offered to engage in group sex with Gagne and Gagne’s father. The court denied admission of the evidence under Michigan’s Rape Shield Law. Michigan’s Rape Shield Law, like that of many states, bars most evidence of specific instances of a victim’s past sexual conduct. There is an exception for evidence of the victim’s past sexual conduct with the accused, but that exception applies “unless and only to the extent that the judge finds that the  proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.”
Like the Sixth Circuit many years later, Michigan appellate judges struggled to apply the Rape Shield Law to this fact pattern. The material fact at issue was whether P.C. consented. Part of the proffered evidence concerned P.C.’s past sexual conduct with Gagne, but part of it also concerned non-defendants. Michigan judges conceded that the Rape Shield Law did not appear to have contemplated the complications arising from group sex. Ultimately, Michigan decided that the Rape Shield’s protection of P.C. outweighed Gagne’s right to put forth a complete defense, and affirmed Gagne’s conviction.
On federal habeas review, the district court granted a writ of habeas corpus, finding that the exclusion of the testimony regarding the group sex and the offer of group sex with his father had violated Gagne’s Sixth Amendment rights to a fair trial, to confront witnesses against him, and to present a complete defense. The Sixth Circuit affirmed and later granted rehearing en banc.
The en banc panel that heard Gagne’s case consisted of sixteen Sixth Circuit Judges. Every active judge except Donald, the most recent appointee, participated, as well as Senior Judge Norris, who had been part of the original three-judge panel to hear the case.
The decision of the court was penned by Judge Batchelder and joined by six members of the well-established conservative bloc of the Sixth Circuit: Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin. Judge Kethledge was conspicuously absent.
Judge Batchelder’s opinion reversing the granting of the writ of habeas corpus is grounded in the “objectively unreasonable” requirement of AEDPA. The analysis concludes:
The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal, and anal) in various positions with both men concurrently, spankings, and repeated vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle, resulting in vaginal bleeding and bruising. To be sure, jurors might find this behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and, therefore, find it incredible or inherently unbelievable that P.C. would have consented to it. And it is not unreasonable to surmise that those jurors would be more likely to find consent if they were told that she had engaged in – and offered to engage in – group sex at least two other times in the past. But, again, that is not the question. The question is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting this argument. Considering the general antipathy for propensity evidence, that State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument, we cannot say that the decision in this case was “beyond any possibility for fair-minded disagreement.”
The primary dissenting opinion was authored – surprisingly some might say – by Judge Kethledge. Ordinarily no fonder of habeas relief than Judge Batchelder, Judge Kethledge wrote a forceful and meticulous opinion. Not only did Judge Kethledge painstakingly detail why the evidence of past group sex might have been crucial to Gagne’s defense, he also took AEDPA by the horns in a way that would make any federal defender proud. Judge Kethledge went to great lengths to find clearly established Supreme Court precedent and to connect the dots from that precedent to this case. From Chambers and Crane, Judge Kethledge distilled the principle that a court cannot use a “flimsy” evidentiary rationale to exclude evidence that is critical to resolving a credibility dispute. In Olden, Judge Kethledge found a right to confrontation in a rape case “that boiled down to a credibility contest in which the sole issue was consent.” In light of this precedent, Kethledge argued that no reasonable jurist could have excluded the proffered evidence. He was joined by Judges Martin, Norris, Rogers, and Stranch.
Judge Griffin joined the plurality and also concurred to express deep concerned about the dissent’s treatment of “propensity” evidence. What concerned Judge Griffin the most was the right of the victim not to have her past sexual actions used against her.
Sutton also joined the plurality. He concurred expressing his agreement with the other concurrences, and also, somewhat curiously, added: “the combination of AEDPA and [Michigan v.] Lucas precludes me from joining Judge Kethledge’s otherwise-forceful dissenting opinion.”
In a telling opinion, Judge Moore concurred in the judgment only. Judge Moore agreed with the result of the plurality, but not its method of analysis. In fact, Judge Moore believed that “the dissent by Judge Kethledge has the better exposition of the general constitutional principles at issue in this case and how they should be considered on habeas.” In short, Judge Moore thought that the plurality gave the state more deference than it was due. She agreed with the quantum of deference afforded by the dissent, but disagreed with its conclusion. In many ways, Judge Moore’s opinion is most emblematic of the Court as a whole, representing the most balanced view of all its opinions. Judge Cole joined Moore’s concurrence.
Judge Clay also concurred in the judgment only. Like Judge Griffin, Clay was most concerned with the probative value of the evidence, which he noted was likely hearsay. Like Judge Griffin, Judge Clay bucked at the inference that a woman who consents once to group sex is more likely to consent to it again in the future.
Judge White also concurred in the judgment only. Like Judge Moore, Judge White did not like the plurality’s approach and preferred the dissent’s “legal analysis” and “application of clearly established federal law.” Judge White, however, did not read the record the way the dissent did, and so disagreed with its conclusions.
Judge Martin joined Judge Kethledge’s dissent and also wrote a separate dissent. Judge Martin expressed that he was “disappointed in the majority’s decision to frame this evidentiary issue as a protection of Michigan’s rape shield statute.” Judge Martin wanted to refocus the question as one of evidence.
So, what is to be taken away from this case? First, there is no majority opinion even though the overall tally was 11 to 5 in favor of reversal. In terms of the merits of the claim, it was not a particularly close case, and arguably not a very important decision in terms of precedential value. A majority of the Judges seemed to agree that it was not unreasonable to use the Rape Shield Law to exclude the proposed evidence.
But in terms of the politics of the court, especially with respect to AEDPA, this case is fascinating. Attorneys who practice in the Sixth Circuit are always happy to see an en banc decision that does not break down strictly according to the liberal/conservative dichotomy. Several judges arguably “broke ranks” in this decision and it is revealing to consider why. Judge Kethledge, most obviously, broke ranks from the conservative bloc (and from his tendency to deny habeas petitions) and exerted great effort attempting to clear the AEDPA hurdle. His effort earned him the praise of a number of his colleagues even if they did not join him. Attorneys drafting habeas petitions in the future would do well to pay close attention to the way in which he marshaled Supreme Court precedent (although beware of the plurality’s Footnote 19 and Judge Kethledge’s response in Footnote 2 – more on this below).
Judges Moore, Clay, White, and Cole did not vote with their usual “liberal” allies. But they did not join the plurality either. Their concurrences – especially Judge Moore’s – betray a tension between their view of the merits of the case and their view of AEDPA. Judge Moore does not believe the merits of this case warrant the granting of a writ, but she will not join the plurality’s extreme view of AEDPA deference. Judge Moore wants to protect her ability to grant a writ of habeas corpus in the future if she found herself feeling as strongly about the merits as Judge Kethledge did in this case. Judge White’s somewhat enigmatic concurrence can be read similarly.
For those who practice habeas corpus law, there is an important little argument between Judges Batchelder and Kethledge, played out in a couple of footnotes. (Everyone else will be put to sleep and can skip this paragraph.) The fight stems from Judge Kethledge’s (noble) attempt to hang his argument on the “contrary to” hook of 2254(d)(1), rather than on the more common “unreasonable application” hook. Again, federal defenders will understand Judge Kethledge’s bind all-too-well; Michigan never identified any of the cases he wants to apply. Footnote 19 of the plurality opinion rejects Kethledge’s reasoning (although does call it “clever”) and essentially states that the “contrary to” clause has been gutted and only applies when the facts of the instant case are identical (not analagous) to an old Supreme Court case. Judge Kethledge responds in a footnote of his own, espousing a slightly more generous reading of the “contrary to” clause. Since Williams v. Taylor, the contours of the “contrary to” clause continue to evolve in our court, but it is good to know that Judge Kethledge at least believes it still has some teeth.
Overall, the AEDPA analysis of Batchelder and Kethledge reveal, for approximately the infinity-ith time the malleability of the AEDPA standard. There can be no other explanation than that “clever” judges are able to bend AEDPA at their will. If a judge really, really believes in the merits of a claim, he or she can make the state court’s opinion run afoul of AEDPA. And if a judge can live with the state court, he or she will have no problem finding the state court’s decision “not unreasonable”.
But to end on an optimistic note, this case is in some ways refreshing. The plurality and the dissent genuinely engage with each other, rather than devolving into the typical split in habeas cases: one side addresses only AEDPA and the other only the merits. Judges Kethledge and Moore probably deserve the most credit for their independent and courageous opinions. For now, let us hope this case marks the beginning of a less polarized Sixth Circuit.