Crime and Consequences

Capital Defense Weekly contends,

In an opinion out Wednesday, the Tennessee Attorney General has held that it is inappropriate to kill animals by the same lethal injection protocols used to kill people.

Nope. The opinion in question deals with intracardial injection, a method never used for execution of murderers in the United States, or anywhere else that I know of.
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Update: CDW has this bizarre follow-up supposedly responding to the above yet making no mention of the holding of the AG opinion or intracardial injection and challenging me to retract a statement I didn't make. I decline.
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Misuse of the American Veterinary Medical Association's Guidelines on Euthanasia by the anti crowd has been so rampant that the AVMA now has a red-type disclaimer on the cover noting how the guidelines are not pertinent to the debate. The text of the disclaimer is after the jump.

Caution - The AVMA Guidelines on Euthanasia (formerly the 2000 Report of the AVMA Panel on Euthanasia) have been widely misinterpreted. Please note the following:

• The guidelines are in no way intended to be used for human lethal injection.

• The application of a barbiturate, paralyzing agent, and potassium chloride delivered in separate syringes or stages (the common method used for human lethal injection) is not cited in the report.

• The report never mentions pancuronium bromide or Pavulon, the paralyzing agent used in human lethal injection.

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (3) | TrackBacks (0)

We previously noted here that in Crater v. Galaza, the Ninth Circuit had rejected again the argument that the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), is unconstitutional. Today, the Ninth denied rehearing en banc. Judge Reinhardt dissents, saying pretty much the same stuff he has been saying. He is joined by Judges Pregerson, Gould, Paez, and Berzon. It is disappointing to see Judge Gould join this over-the-top opinion. Judge Reinhardt cites the Liebman and Ryan article in Columbia Law Review but not my refutation which immediately follows it. See 98 Colum. L. Rev. 888. I'm crushed.

Posted by Kent Scheidegger at 04:12 PM | Permalink | Comments (0) | TrackBacks (0)

We previously noted here the case of Arave v. Hoffman, in which the Supreme Court granted certiorari and added its own question, "What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?" My op-ed in the LA Daily Journal on the case is here.

The odd thing about the case was that Hoffman had already obtained relief from his penalty judgment in district court, and the state had abandoned its cross-appeal of that decision. The question was whether the state could retry the penalty phase if it chose to do so. After almost six years of litigating whether the district court erroneously denied him the remedy of precluding a retrial, Hoffman has now decided he doesn't want that remedy after all. Oh, never mind. He has asked the Supreme Court to vacate the decision of the Ninth Circuit as dismiss the case as moot. SCOTUSblog has the motion here. The Idaho AG naturally concurs, given that Hoffman is now asking for the same result they have been saying was correct the whole time.

The purported reason for Hoffman's change of heart is the prison conditions that he remains under until the district court's judgment becomes final. I don't buy it. I strongly suspect that counsel for Hoffman was under intense pressure from the defense bar, who saw a whopping defeat looming. The case would have required the Supreme Court to confront the "prejudice" element of Strickland v. Washington, 466 U.S. 668 (1984) in a context where an attorney error might have affected outcome but does not affect the reliability of the verdict. That is, is the failure of an attorney to obtain an undeserved windfall for the defendant a reason to set aside a reliable judgment?

In Kimmelman v. Morrison, 477 U.S. 365 (1986), Justice Powell strongly hinted that the answer was "no" in a context much more common than the quirky facts of Hoffman. That case involved a lawyer's failure to get evidence suppressed under the Fourth Amendment exclusionary rule. However, the question had not been squarely presented in Kimmelman, see id., at 397-398, so it was not resolved then and has not been resolved since.

The Court will probably dump Hoffman, as requested. However, the grant of certiorari in this case indicates that the Court is interested in the issue. If any AG or DA offices have an appropriate vehicle to raise the issue, bring it on.

Posted by Kent Scheidegger at 11:19 AM | Permalink | Comments (0) | TrackBacks (0)

The transcript of oral argument in Boumediene v. Bush is available here. Audio is on CSPAN. CJLF's brief is noted by the SG on page 71 of the transcript. The Schiever discussion noted is on pages 14-15 of the printed brief, beginning at page 22 of the PDF file.

Posted by CJLF Staff at 12:09 PM | Permalink | Comments (0) | TrackBacks (0)

Gitmo: Marcia Coyle of National Law Journal previews tomorrow's argument in Boumediene v. Bush, the case on a constitutional right to habeas review for the detainees in Guantanamo Bay. CJLF's brief is here. The Federalist Society has an online debate here.

Felony murder rule: Adam Liptak has this article on the controversial rule in the New York Times. The article profiles a case from Florida, and the misleading headline says that Ryan Holle is doing life merely for loaning his car. If the jury had believed that, or even had a reasonable doubt, he would not have been convicted of a crime at all. To find him guilty, they had to find he was a party to the underlying robbery. In this case, actual violence was part of the robbery plan from the beginning.

The Kevin Cooper case has finally been decided by the Ninth Circuit panel. This is the case where the convicted murderer's lawyers keep asking for tests, insisting each time that the test will show their client's innocence, and each time the test reinforces the finding of guilt. Let's see how long they take deciding the rehearing en banc petition. Standard practice in the Ninth is that when the state loses any rehearing petition is disposed of quickly, but when the petitioner loses it takes many months, sometimes years.

Posted by CJLF Staff at 02:53 PM | Permalink | Comments (2) | TrackBacks (0)

The U. S. Supreme Court's orders list from last week's conference is here. Conspicuously absent is Berry v. Epps, No. 07-7348. On October 30, the Court granted a stay of execution in that case but provided that the stay terminated automatically if certiorari were denied. The certiorari petition was on the conference list for Friday, but apparently it has been delayed to a future conference. Our previous post is here.

If the Court has simply decided to hold all cases until it resolves Baze v. Rees, one can only wonder why they put it on the conference list at all.

Posted by Kent Scheidegger at 08:29 AM | Permalink | Comments (1) | TrackBacks (0)

Detainee Case: Mark Sherman of AP has this preview of the detainee case to be argued in the U.S. Supreme Court on Wednesday.

Pretrial Blog Publicity: In a twist on the usual motion for change of venue, a defendant charged as accessory after the fact in a murder asked for the change based in part on coverage of his case by "conservative bloggers," according to this AP story. The motion was denied.

Public Interest Law may not be an option for law school graduates with high debts. This WashPost story by Ian Shapira looks at the problem of graduates who would rather do public service but are financially required to go for the bucks.

Posted by CJLF Staff at 08:25 AM | Permalink | Comments (0) | TrackBacks (0)