The eternal question of whether the criminal justice system must favor what's finished -- finality -- over what's right -- curing manifest injustice is central to a recent decision by the Fourth Circuit, Whiteside v. United States, 13-7152 (April 8, 2014),one that provoked the following short concurring opinion by Senior Circuit Judge Andre M. Davis:
The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint. There is much that could be said about the dissenting opinion’s paean to finality, but one can hardly say it more poignantly or more persuasively than has Judge Rovner. See Hawkins v. United States, 724 F.3d 915, 919-25 (7th Cir. 2013) (Rovner, J., dissenting from the denial of rehearing), en banc reh’g denied, 725 F.3d 680 (7th Cir. 2013) (Rovner, J., joined by Wood, Williams, and Hamilton, JJ., dissenting from denial of rehearing en banc).
In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.
The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.
The federal courts and Congress have increasingly lionized efficiency and finality over the course of the last 25 years plus, which covers my career so far. Is it better that a case be done and over even if we all know its wrong? Is faith and public confidence in our courts enhanced or reduced where their emphasis is to get a case over more than to get it right? Does an emphasis on getting a case over favor corporations and government over individuals?
These fundamental questions get a full and spirited discussion in this case. The majority opinion was written by Circuit Judge Roger Gregory and the dissenting opinion by Circuit Judge Harvie Wilkinson, both of whom are distinguished judges but with differing opinions as to how these questions should get resolved.
Professor Doug Berman discusses the Whiteside decision and its remarkable opinions on his blog, Sentencing Law and Policy, Fourth Circuit Deepens (Via Dramatic Split Opinion) Circuit Split Over Fixing Sentencing Problems Via 2255 Motions.