The Brooks brutalism

New York Times columnist David Brooks may have hit a new low with his attempted hit job on Ted Cruz in “The brutalism of Ted Cruz.” James Taranto provides a devastating analysis of Brooks’s column in “Brooks borks Cruz” (accessible via Google here, I hope). For those who know the deep meaning of pants in Brooksworld, you might say that Taranto depantses Brooks. Kent Scheidegger also addresses Brooks’s column in “A NYT hatchet job on Ted Cruz.” Reader Neil Peden is a a Quebec attorney who takes this deep dive into legal analysis of the issues raised by Brooks’s column:

In his column on Ted Cruz earlier this week David Brooks leads with the story of Michael Wayne Haley. According to Brooks, “the case reveals something interesting about Cruz’s character,” but the manner in which he uses the case to attack Cruz reveals more about his own.

As Brooks describes it, after Haley was arrested for stealing a calculator from Walmart, “prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years. Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.” If those are the only relevant facts the case demonstrates an almost unfathomable level of vindictiveness so I decided to look up some of the court filings, which are easily available online.

It turns out that the habitual offender law was misapplied, but not because Haley wasn’t a habitual offender in the colloquial sense. From 1989 to 1997, Haley was convicted of six crimes (the relevant ones being #2, #4 and #6):

1. On March 28, 1991, Haley is convicted of theft by check. He is sentenced to 180 days in county jail.

2. On October 18, 1991, Haley is convicted of delivery of amphetamines (a felony), resulting in a 12-year sentence.

3. On December 3, 1991, Haley is convicted of another theft by check. He is sentenced to an additional 90 days in county jail.

4. On September 9, 1992, Haley is convicted of second felony, attempted robbery (in the course of which he threatened a woman with a claw hammer), for which he receives a 10-year sentence.

5. While out of prison on parole in 1995, Haley is convicted of misdemeanor possession of marijuana and sentenced to 150 days in county jail.

6. On October 29, 1997, Haley is convicted of the theft of the calculator.

The theft of the calculator would normally be punishable by a jail term of no more than two years, but the state invoked a “sentencing enhancement” provision—a form of “three strikes, you’re out” law—based on the two prior felony convictions. The reason that the sentencing enhancement was incorrectly applied is that the law requires that the felonies be “sequential”. Haley committed his second felony (crime #4) on October 15, 1991, which was three days before he was convicted of his first felony (crime #2), and so the felonies were not technically sequential to each other.

I would be surprised if Haley did not know that Texas has a three-strikes law. When he committed the second felony he obviously knew that he had been accused of the first felony (he was convicted three days later). More importantly, when Haley stole the calculator five years later he certainly knew that he had two separate prior felony convictions, which would usually be considered “two strikes,” and Haley obviously did not know that the second felony was not technically a second strike because he did not raise it at trial. Nor did he raise this on his appeal of his conviction, which he lost.

The sentencing issue was raised for the first time on a habeas corpus application in state court, which was refused because his argument was not based on any facts that were not known at the time of the trial (the timing of the convictions was obviously in the record, it was just that nobody realized that the two prior felonies were not technically sequential to each other), and Haley had not raised the issue on appeal.

To permit defendants after all their appeals are exhausted to raise arguments that should have been raised at trial is a dubious proposition at best. The discovery of new evidence is one thing, but does a defendant have a perpetual right to suddenly say, “wait, I should have said…”?

After losing in state court Haley filed a habeas corpus petition in federal court. His application was granted because the judge found that Haley qualified under the “actually innocent” doctrine, which was created by the courts in the context of last-ditch appeals of death sentences. Essentially, courts have held that despite all of the reasons not to permit an end-run around the appeal process, they are willing to allow it to prevent the execution by the state of an “actually innocent” person. This seems reasonable enough, but some circuits have expanded the “actually innocent” doctrine to non-capital offenses, while others have not.

To get back to Brooks, he notes that Cruz was solicitor general at the time, and “instead of just letting Hayley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.”

First of all, the state of Texas took the case to the U.S. Supreme Court not to keep Haley in prison 16 years for stealing a calculator, but to oppose the extension of the “actually innocent” doctrine (created out of whole cloth by the courts) to non-capital cases. This does not strike me as unreasonable.

Second, even if one believes that the “actually innocent” doctrine should be expanded to cases not involving the death penalty (where would this stop? all cases of imprisonment? some arbitrary point in between?), Haley is hardly the poster-child for the “actually innocent.” This is not an instance of trying to prevent the execution of a defendant who did not actually commit a capital offense. Hayley is a repeat offender who committed theft despite two previous felonies which he probably thought were two strikes against him, but were in fact only a single strike because of a technicality of which he was unaware.

Third, even if you take the position that Haley in particular should have received leniency, this probably has nothing to do with Cruz. According to the government website, “As the chief appellate lawyer for the State of Texas, the Solicitor General supervises all appellate litigation on behalf of the Office of the Attorney General. The Office of Solicitor General (OSG) approves all civil and criminal appeals in state and federal courts involving the state, its agencies and its officials. OSG also directly handles those appeals determined to be most significant to Texas and to the development of federal and state jurisprudence and appears on occasion in federal and state trial courts on matters implicating the state’s most critical interests.” Cruz’s role was to oppose the extension of the “actually innocent” doctrine to non-capital cases. Commuting Haley’s sentence would presumably be up to the office of the Attorney General or the governor. How would Brooks have wanted Cruz to obtain Haley’s release? By failing to oppose the habeas corpus application, contrary to the state’s interests? By petitioning the attorney general or the governor on Haley’s behalf?

It is always tricky to write about court cases because the devil is often in the details. However, Brooks had a duty to learn those details before asserting that “Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism.” I think that Brooks considered the story too good to check. Considering that it took me less than fifteen minutes to find and read the filings on the Internet, I think that Brooks’s behavior is almost the dictionary definition of incompetent. He owes Cruz a retraction and an apology.

I thought when I read it that Brooks’s treatment was scurrilous, but I was motivated to share what I learned because I know that while the story will no doubt spread, few will know or care about how utterly misleading it is. I note that the Haley non-story has now been picked up by all the usual suspects such as the Huffington Post, Salon (“In all his sadism, Ted Cruz is the true face of the Christian right”), the Daily Kos (“Every voter needs to know this about David Brooks”), and so on. Debunking takes effort and it never spreads as far as the smear does, which is why attacks like these are so pernicious.

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