An earlier preview of the case is available here. Check the Beard v. Kindler (08-992) SCOTUSwiki page for additional updates.

It became clear during the Beard v. Kindler oral argument on Monday, November 2, that the question presented in the petition for certiorari "“ whether a state procedural default rule is inadequate solely because it is discretionary "“ was not actually in dispute.  Everyone "“ including the respondent and the Court "“ agreed that discretionary rules can be adequate.  Justice Kennedy summed it up in his blunt statement to the Commonwealth's lawyer, Ronald Eisenberg: "I don't think the question you presented is really that squarely before us."

The Justices used most of the Commonwealth's time trying to pin down the rationale behind the Third Circuit's opinion.  In particular, Justices Sotomayor, Kennedy, and Ginsburg seemed skeptical of the Commonwealth's assertion that the court of appeals had rejected its fugitive-forfeiture rule merely because the rule was discretionary.  By the end of his first half-hour, Eisenberg had all but conceded that the Third Circuit's ruling had not clearly analyzed how the fugitive-forfeiture rule was improperly applied and thus only effectively held discretionary rules inadequate.

Although the question whether discretionary rules are per se inadequate was settled, an overarching standard for determining when discretionary rules are inadequate remained elusive throughout the argument.  From the Commonwealth, the Court heard a narrow range of examples: when rules are applied discriminatorily, as they once were against blacks in the South; or when a different rule is applied at the end of a defendant's appeal than at the beginning.

By contrast, Matthew Lawry "“ the advocate for respondent Joseph Kindler "“ argued that discretionary rules are inadequate if they are "inconsistently applied."  Justice Breyer was eager to nail down just how much variation among courts Kindler would allow.  After all, he quipped, "A supreme court in a state is supervising lots of trial courts, and you will have different human beings sitting there as judges, and they will inevitably be inconsistent with each other to some degree.  Haven't you noticed that?"  Lawry responded by offering as a metric for consistent application whether or not the court clearly explained itself.  At other points, he characterized consistent application as treating similarly situated defendants alike "“ for example, he reiterated, the trial court considered the claims of Reginald Lewis, another fugitive, but dismissed Kindler's without explaining the relevant differences between the two cases.  During his rebuttal, Eisenberg sought to distinguish Lewis' case on the ground that he was recaptured within two weeks, while Kindler was at large for seven years.

At least three Justices appeared utterly unconvinced by Lawry's argument that courts should apply the law as it existed at the time of a former fugitive's escape, rather than the law that exists when his appeal is decided.  Indeed, Justice Kennedy even raised this question as a softball for the Commonwealth.  As he explained, the usual reason for such a retrospective approach is to change the incentives of rational actors, either defendants or their lawyers.  But when pressed by Justice Kennedy, Lawry wisely conceded that Kindler would have escaped even if he knew he would thereby forfeit his right to appeal.

Beyond his dramatic opening statement that if it were up to the Commonwealth, Kindler would be executed without any "review by any court of his meritorious claim that his death sentence was unconstitutional," Lawry surprisingly did not focus on the uniqueness of capital cases in habeas law, a major contention in his client's brief.  Justice Stevens, however, raised the issue with the Commonwealth's attorney, who conceded that no Pennsylvania court had ever applied the fugitive-forfeiture rule to a capital case.

The argument ended with another telling question by Justice Stevens that seemed to render the foregoing hour of questioning a mere academic exercise: could the Court simply answer the question presented with an emphatic "no" and return it to the Third Circuit?  Although the Commonwealth's briefs had argued that the Court should answer the question in the negative, Eisenberg now insisted that such a bare-bones ruling would provide inadequate guidance to the states.

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