Greetings. They’re back and so are we.
The early days of the new term bring Gassler v. State, a morality tale of sorts, featuring bad scientists, an (as it turns out) even worse defendant and a crummy narrative structure. The holding, you say? Right. Gassler holds that the interests of justice exception to the two year time bar in the postconviction statute has independent vitality — it does not merely rehash the other exceptions; it is not simply residual. The effect of the Court’s holding, theoretically, is to ease the postconviction time restrictions, but it is going to require someone more palpably deserving than Mr. Gassler to take advantage of it.
A Disgraced Technique
Mr. Gassler is serving a life sentence for first degree murder. He was convicted in 1992. At Gassler’s trial, an FBI agent testified that composite (or comparative) bullet lead analysis established that a bullet recovered from the decedent’s body came from a box of ammunition tied to Gassler. The forensic technique used by the FBI agent in Gassler’s case fell into disrepute a decade later. In 2005, the FBI announced that it was discontinuing composite bullet lead analysis, though it “still firmly support[ed] the scientific foundation” of the technique. Following an exposé by CBS’s 60 Minutes and The Washington Post in November 2007, the FBI clarified that it had stopped doing bullet lead analysis because of “the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets made in the course of a bullet lead examination.” The procedure, in other words, was a dud. It could not establish the origin of bullets. In May 2008, the FBI was still maintaining in correspondence with the Minnesota Attorney General that the testimony of the FBI agent in Gassler’s case was sound. In January 2009, however, the FBI disavowed the agent’s evidence, admitting that it was insupportable.
Meanwhile, in prison, Mr. Gassler was watching television — 60 Minutes, as it happens. By March 2008, he had filed a petition for postconviction relief (his second), arguing that he was convicted on the basis of false evidence. The trial court denied Gassler’s petition as untimely under Minnesota Statutes section 590.01, the postconviction statute.
Old Guilt Eats New Evidence for Breakfast
Section 590.01, subdivision 4(a), bans postconviction petitions filed more than two years after the entry of judment of conviction or sentence, if no direct appeal was filed, or more than two years after the disposition of the petitioner’s direct appeal. Subdivision 4(b) sets out five exceptions to the two year time bar. Only two of them come into play in Gassler: the exception for newly discovered evidence, and the exception in the interests of justice.
Justice Page authored the majority opinion. Justices Gildea and Dietzen agreed with the majority’s analysis of the newly discovered evidence exception, but disagreed with the majority’s take on the interests of justice exception and, as to that ground, concurred in the result only. Justice Stras did not participate.
To determine whether exception number two, for newly discovered evidence, of subdivision 4(b)’s five exceptions applies, there is a five part test. (Ain’t it great being a lawyer?) The Court only bothered with one of the five parts, to-wit: the newly discovered evidence must establish clearly and convincingly that the petitioner is innocent. Yup, that little thing. There was plenty of other evidence that hurt Mr. Gassler at trial, including testimony that he had admitted to a friend that he committed the murder. The Court held that, because he could not meet the clear and convincing evidence-of-innocence standard, Gassler could not use the newly discovered evidence exception to get around section 590.01’s time bar.
Picking Up Where They Left Off
The argument between the majority and the concurring justices with respect to the interests of justice exception resumes a debate that polarized the Court last term — what is the meaning of plain meaning? In its construction of the postconviction statute, the trial court declined to independently consider the interests of justice exception, reasoning that where the newly discovered evidence exception is unsatisfied, the interests of justice exception cannot apply. Justice Gildea’s concurrence endorses this view. The majority, writes Justice Gildea,
“thwarts the legislature’s very specific and detailed instructions about the circumstances in which a new trial should be granted [on the basis of the newly discovered evidence exception] when it allows Gassler a second chance to make out his case for a new trial under the more generic interests of justice exception. I would treat the interests of justice exception as a residual exception, intended to cover situations not covered by the other four exceptions of subdivision 4(b), not as a means by which petitioners may circumvent the more specific requirements of the other statutory exceptions.”
But the plain meaning debate takes an unaccustomed twist in Gassler. It is the Page-led majority who make a stand for strict construction. The Court emphasizes that the various exceptions to subdivision 4(b)’s time bar are connected by “or.” “Or” is disjunctive. Disjunctive clauses are all equally capable of application. If a petitioner can satisfy any of the five exceptions, the time bar does not apply.
The juiciest part of the debate takes place in the footnotes. Justice Gildea analogizes to the catch-all provisions in Minnesota Rule of Civil Procedure 60.02 and Federal Rule of Civil Procedure 60(b), arguing that subdivision 4(b)’s interests of justice exception should be treated similarly. Justice Page counters that, since she is resorting to extrinsic texts, Justice Gildea must be making a finding that subdivision 4(b) is ambiguous. Justice Gildea replies that she is doing no such thing. She is, rather, engaging in plain meaning analysis. She is simply using the rules as illustrations. The justices spar some more about the propriety of “illustrations.” This debate, in Gassler, comes off as slightly ridiculous, but it concerns a subject that has become the central fault line for the Court in in recent years: What is plain meaning? How is ambiguity determined? These issues divide the Court more than any others.
Having concluded that Gassler’s claims must be put to a separate, substantive interests of justice analysis, the majority hastens to dispense with them. Gassler’s case, the Court intones, does not present one of the “exceptional situations” for which the interests of justice exception is designed. Yes, says the Court, the trial court admitted scientific evidence linking Gassler to the murder which was later determined to have no scientific value. Yes, the delay in filing the postconviction petition “can only be attributed” to the FBI’s refusal to come clean about its faulty evidence prior to January 2009. “Problematic” as these things are, there was substantial untainted evidence of Gassler’s guilt and his trial was not fundamentally unfair. In fact, the Court concludes, it would be a “miscarriage of justice” to consider Mr. Gassler’s petition in the interests of justice. Take that, you miscreant.
One Legal and One Literary Criticism
1. The majority makes a big noise in defense of an independent interests of justice analysis, but the analysis itself is mostly a re-working of the Court’s earlier evidence-of-innocence discussion. The Court does not formulate any objective or even, really, articulable criteria (“exceptional situation” is a criterion, I suppose, but what in the world does it mean?) to guide a postconviction court’s exercise of judgment.
2. The majority makes a big noise in defense of an independent interests of justice analysis, and expresses plenty of umbrage at the FBI’s capriciousness to boot, before it abruptly skewers Mr. Gassler in the last sentence of its opinion. I read through twenty-two pages of majority opinion, and never saw that coming. Deus ex machina, oh Court. It is not fair to upend the show in the final moment, not even in a judicial opinion.