Results matching “thomas”

I have previously noted that some people are so far off to one side ideologically that they lose the ability to see where the center is.  For example, there is Goodwin Liu claiming that Samuel Alito is too far out of the mainstream to be confirmed and then putting himself up for confirmation.

With this thought in mind, we read with interest this Flagpole interview with Dahlia Lithwick, who covers the Supreme Court for Slate.  The interview eliminates any doubt, if indeed any remained.  Ms. Lithwick has absolutely no concept where the middle of the road is.  Regarding judicial nominations, she says (emphasis added):

It goes to [the idea that] the center has moved. I mean, the center has moved so far to the right that anybody who's... marginally to the left of Stephen Breyer is, you know, a radical. You see that in Obama's judicial picks: one person he put up who was moderately liberal was Goodwin Liu in California, who was perfectly analogous to most of the people on the Right that Bush put up. But he's been blocked, and excoriated; his hearing was just a disaster... he's been sort of painted as [being] to the left of Thurgood Marshall: a pot-smoking, hemp-wearing hippie. And, you know, he's a renowned academic... So, I think it's that ability to say, anyone who isn't in the center--even though the center isn't even in the center--is a radical and a socialist who doesn't love this country is just another really effective way of moving the conversation to the right.

But of course the center is the center by definition.  The survey marker of the center is the median American voter, the one who had a hard time choosing between Bush and Gore in 2000.  To be "renowned" in academia when the median academic is at least one standard deviation to the left of the American center, maybe two, is not any kind of indication of mainstreamness. 

While Glenn Beck et al. do get overheated with their rhetoric, it is absurd to suggest that comes exclusively from one side.  (Has anyone on Fox News referred to a female pundit of opposing views as a "bag of meat"?  An MSNBC commentator did.)  It is absurd to suggest that attacks on judicial nominees of the present Administration are worse than the savage attacks on Clarence Thomas, Miguel Estrada, or other Republican nominees.  Indeed, it is absurd to say that attacks on Liu are even as bad as Liu's own attack on Alito, much less to say they are worse.

BTW, I haven't heard anyone call Goodwin Liu "a pot-smoking, hemp-wearing hippie."  I have heard people say he is way out of the mainstream, not moderate, mainly because that is true.  The suggestion that he is no further off center than the typical Bush appointee is preposterous.

But the real howler comes with her discussion of the Supreme Court press corps.

I mean, is it a good thing or a bad thing that we still cover the Court in the voice of Linda Greenhouse? That is, dispassionate and neutral.

Neutral?  Linda Greenhouse? That isn't just funny.  That is laugh until your sides ache with tears rolling down your cheeks funny. That is turning blue because you are laughing so hard you can't inhale funny.

Ms. Lithwick lives in an ideological Bizarro World and doesn't know it.  It is one thing to be out on the fringe and well aware you are on the fringe.  It is quite another to be unaware of your position.

Conservative Justice Clarence Thomas was, as he famously said at his confirmation hearing, the target of a "high tech lynching."  Tagging along with the lynching party was liberal hero Sen. Ted Kennedy, who watched in amusement as his colleagues grilled Thomas about his supposed harrassment of an attractive young woman, Anita Hill.  As I recall, Kennedy himself said little or nothing  --  a wise decision,  given that his own most famous encounter with an attractive young woman was to drown her.

As a recent gathering of progressives has now reminded us, a "high tech" lynching is not the only kind.  After gushing for more than a week about how "civility" is urgently needed in the wake of the grievous wounding of Rep. Giffords and the assassination of Chief Judge Roll, progressives gathered in California to protest a meeting of conservative business leaders.  Civility was not really their thing; shouting obscenities was.  A provocateur from Fox News started asking, among other things, what they would like to see done about Justice Thomas.

The answer, from the "civility" crowd, was "string him up."

Don't believe it?  I don't blame you, but see for yourself. 

Hat tip to John Hinderaker at Powerline. 

Sarah Avery reports for McClatchy Newspapers, "A toddler's inability to exert self-control appears to predict trouble later in life with substance abuse, crime and money mismanagement, reports a team of researchers that include Duke University psychologists."

The psychologists recommend early intervention to improve a child's self-control.

In a simpler age, that was called disciplining your kids.

BTW, the lead researcher is Terrie Moffitt, whose work is cited extensively in CJLF's brief in Graham v. Florida.  Moffitt's work shows that juvenile offenders should not be lumped together in one mass.  Some offend briefly in adolescence and then desist.  Others are life-course offenders.  The Court majority chose to ignore this work, although it is mentioned in Justice Thomas's dissent.

The full article is here.

Lee Ross of FoxNews has this story on the uncertain attendance of the Supreme Court Justices at tomorrow's State of the Union Address.  As of Friday, a court spokeswoman couldn't confirm attendance plans for any of the nine, but several Justices have made clear their feelings on the issue:

Chief Justice Roberts: "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

Justice Alito:  "For many years the more senior members of the Supreme Court, Justice [John Paul] Stevens before he retired, Justice [Antonin] Scalia, stopped the practice of attending State of the Union addresses because they have become very political events and very awkward for the justices. . . We have to sit there like the proverbial potted plant most of the time.  And we're not allowed to applaud--and those of us who are more disciplined refrain from manifesting any emotion or opinion whatsoever."

Justice Thomas:  "I don't go because it has become so partisan. . . And it's very uncomfortable for a judge to sit there.  There's a lot that you don't hear on TV: the catcalls, the whooping and hollering and under-the-breath comments.  One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches.  It's just an example of why I don't go.

Justice Scalia:  "It is a juvenile spectacle, and I resent being called upon to give it dignity. . . It's really not appropriate for the justices to be there."

Justice Breyer:  "I think it's very, very, very important -- very important -- for us to show up at that State of the Union, because people today, as you know, are more and more visual. . . I'd like them to read, but they are visual.  And what they see in front of them in that State of the Union is the federal government, every part -- the president, the Congress, the cabinet, the military, and I would like them to see the judges, too, because federal judges are also part of that government.  And I want to be there."

The US Supreme Court decided a crime-related civil procedure case involving qualified immunity in Ortiz v. Jordan, No. 09-737.  Lawyers for officers need to appeal denial of summary judgment before trial, not after.  After trial, they need to ask for judgment as a matter of law under FRCP 50(b) to take that issue up on appeal.  Opinion by Justice Ginsburg 6-3-0.  Justices Thomas, Scalia, and Kennedy do not think the Rule 50 question is properly presented.

The Court granted certiorari in two criminal cases:

The Michigan SG continues on a roll with Howes v. Fields, No. 10-680 addressing Miranda questions left hanging in Maryland v. Shatzer last term.  When a prisoner is in prison or jail for an unrelated offense, under what circumstances is he in "custody" for Miranda purposes when he is brought out from the general population and questioned by police officers?  When Miranda was still new, Mathis v. United States, 391 U.S. 1 (1968), a characteristically terse Hugo Black opinion, arguably decided that custody is custody.  Justice White thought that was a "cavalier" conclusion.  Subsequent decisions, including Shatzer, cast some doubt on Mathis, but the Sixth Circuit in Fields thought the state court opinion was an unreasonable application of it.

Reynolds v. United States, No. 10-6549, is a challenge to the Sex Offender Registration and Notification Act (SORNA), including a federalism challenge that Congress exceeded the bounds of its enumerated powers.  Third Circuit opinion rejecting the challenge is here.

Philly Abortion Doctor Ran "House of Horrors:  The Philadelphia Inquirer has this disturbing story on this morning's arrest of former Doctor Kermit Gosnell, charged with the murders of a 41-year-old woman and seven babies.  Prosecutors alleged Gosnell ran a late-term abortion clinic out of his Philadelphia medical clinic, permitting untrained and unsupervised workers (including a 15-year-old girl) to administer sedatives to patients.  41-year-old Karnamaya Mongar allegedly died from an anesthetic overdose prescribed by Gosnell.  Prosecutors also allege Gosnell delivered the seven infants live, then severed their spinal cords with scissors.  In what is being described as a "house of horrors," police officers discovered bags and bottles of aborted fetuses scattered throughout Gosnell's office. 

Victim's Family to Sue Over Commuted Sentence:  The family of victim of Luis Dos Santos is expected to file suit against former Governor Schwarzenegger, reports The Sacramento Bee.  The lawsuit stems from the Schwarzenegger's eleventh hour prison sentence commutation of Santos's convicted killer Esteban Nunez, the son of a former Assembly speaker.  (Prior post here.)  Santos's family claims the former governor violated their constitutional rights under "Marsy's Law," a voter-approved constitutional amendment mandating that crime victims and their family members receive advance notice of parole hearings.

New Forensics:  The BBC has this article on a new method to help catch sex offenders by detecting condom lubricant on crime scene fingerprints.  Dr. Simona Francese of Sheffield Hallam University stated: "Offenders are increasingly aware of forensic issues and it is common now for condoms to be used and removed from the scene of a sexual assault. . . If condom lubricant can be detected in fingermarks it would improve the evidence for the prosecution by establishing the assailant's presence at the scene and, crucially, having had contact with a condom."

Trial Starts in Deadly Ohio Arson Case:  Thomas J. Sheeran of the AP reports jury selection began today in the case against Antun Lewis, accused of setting a 2005 house fire that killed nine people, including eight children, at a birthday sleepover.  The case is being heard in federal court, after prosecutors argued the house set ablaze was involved in interstate commerce via a federal rent subsidy.  Lewis faces a life sentence if convicted, but is ineligible for the death penalty as a judge already deemed him mentally disabled.

Staff writer Robert Barnes has this piece in The Washington Post, discussing a recent study on laughter in the U.S. Supreme Court.  Building on a previous study, Texas litigation consultant Ryan Malphurs analyzed the "laughters" during oral argument in the 2006-2007 term, determining Justice Scalia to be the comedian of the bench, with Justice Breyer a far second.  Justice Ginsberg, Justice Alito, and Justice Thomas (who does not speak during oral argument) finished last.  In his published results " 'People Did Sometimes Stick Things in My Underwear': The Function of Laughter at the U.S. Supreme Court," (so named after a notable question from Justice Breyer), Malphurs writes:

Because the Courtroom is a site of significant debate and argument, we would expect the justices' laughter to challenge the position of advocates or each other, functioning as control and resistance. However, after considering the four areas of interaction, readers will recognize that the justices do not use laughter to reinforce control or resistance within the Courtroom; instead the justices' laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.

Hat tip to How Appealing.

Leroy White was executed by the State of Alabama yesterday.  He killed his estranged wife, Ruby White, with a shotgun in 1988.  Keith Clines of the Huntsville Times has this report.

As is common in last-minute capital appeals, White had two petitions to the Supreme Court.  White v. Culliver, Warden, No. 10-8367 sought review of the decision of a lower federal court, and White v. Alabama, No. 10-8382 sought review of the decision of the state high court.

The statute on stays pending Supreme Court review, 28 U.S.C. §2101(f) gives the power to grant a stay to individual Justices, but it was settled in 1807* that a power given by law to individual Justices may be exercised by the full Court.  In capital cases, the individual Justice assigned to the circuit regularly refers the application to the full Court whenever there is time.

In this case, the execution was held up when Justice Thomas, the Justice assigned to the Eleventh Circuit, granted a stay individually, apparently to allow time for the full Court to consider the application.  The claim involved ineffective assistance in plea bargaining, an issue the Court is actively considering in other cases.  The Court subsequently denied the stay and certiorari petition, without dissent, and lifted the stay previously issued.  The execution went forward about 3 hours later than scheduled.

The case also illustrates one reason why the death penalty is less often imposed in domestic violence cases.  The victim's daughter is also the perpetrator's daughter, and she was opposed to the execution. 

* Ex parte Bollman, 8 U.S. 75 (1807), a case arising out of the Aaron Burr conspiracy.

In the federal system, who has the authority to decide whether and under what circumstances persons previously convicted of crimes will be allowed to possess guns, bullet-proof vests, and similar items that can be used to commit crimes or to defend against them?

Today, in Alderman v. United States, the U.S. Supreme Court declined to review a decision of the Ninth Circuit upholding a federal statute which forbids persons previously convicted of crimes of violence to possess "body armor."  Justice Thomas, joined by Justice Scalia, dissented, arguing the Court should take the case.  The federal law is supposed to come within the power to regulate interstate commerce because it requires that the body armor have moved in interstate commerce at some point.  That is a very tenuous hook, under some relatively recent* Supreme Court precedents, Lopez and Morrison.  See this prior post.

I have long contended that enumerated powers and not the Second Amendment was the way to go after Congress's more extreme limitations on firearm ownership (e.g., a lifetime ban for a single misdemeanor conviction of domestic violence).  The fact that only one other Justice joined the opinion is somewhat surprising, but a Justice's decision not to join an opinion such as this does not necessarily indicate disagreement on the underlying point.

Particularly in light of the tragedy in Tucson, let me make clear that I am not taking a broad stand against restrictions on firearm ownership.  Some restrictions are needed, obviously.  However, I do believe that these decisions come within the state's authority in our federal structure.

The Ninth Circuit today put some reasonable limits on the use of equitable tolling to extend the reach of its now-discredited precedent on late-filed federal habeas petitions.

State prisoners have one year to file their federal habeas petitions after their state direct appeals are denied, but the time is tolled during the pendency of any "properly filed" state-court collateral reviews.  Is a state collateral petition "properly filed" if it is untimely under state rules?  The Ninth said yes in Dictado v. Ducharme, 244 F.3d 724 (2001), effectively allowing every inmate to give himself extensions of time by filing untimely state petitions, extending his federal deadline by the length of time the state court takes to get around to dismissing.  The Supreme Court decided otherwise in Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Do inmates get "equitable tolling" claiming they were relying on Dictado before its demise?  Up to a point. 

On their way out the door, the Senators of the 111th Congress confirmed a batch of judicial appointments.  The Senate Daily Digest is here.

Speaking of the Ninth, Goodwin Liu is not on the list.  He is the Berkeley law professor who attacked Samuel Alito as "out of the mainstream" in large part because Alito voted for the murderer in only 40% of the capital cases to come before him.  Liu's view of the "mainstream" would have required something like 90%.  This demonstrates that Liu is so far to the left he has no idea where the middle is.

The President can, of course, renominate Liu for consideration by the 112th Congress, but I hope he will not.

AP story is here. WSJ story by Evan Perez is here.  WSJ Law Blog post by Nathan Koppel is here.

Correction:  This post earlier stated that Robert Chatigny was among those confirmed.  The digest page cited actually lists his nomination as among those returned to the President.

"Parent Accountability Act" Sends Parents to School:  Thomas Watkins of the Associated Press reports on the recent implementation of California's "Parent Accountability Act," the first state law allowing judges to order parents of gang members to attend parenting classes.  The law went into effect in January, but classes only recently started due to budget cuts and low attendance.  The training courses teach parents about warning signs that a child may be involved in gang activity and the legal consequences of gang-related offenses, and will eventually include victims of gang violence as guest speakers.

Suspects in Hotel Killing Could Face Death Penalty:  A husband-wife duo appeared in court today, accused of killing and dismembering a man in a Los Angeles hotel room.  The couple is charged with first degree murder with special circumstances, meaning they could face the death penalty if convicted.  49-year-old Herbert Tracy White's body was discovered mutilated in late November in a hotel room the two were renting.  The Los Angeles Times has this story.

Misdirected Criticism?:  The Washington Post has this editorial on Attorney General Eric Holder's attack on a recent House vote to bar federal funds to move any detainee from Guantanamo to the US for any purpose, including trial.  The editorial begins: "We have some sympathy for Attorney General Eric H. Holder Jr. as he rails against Congress's latest proposed limits on moving detainees from Guantanamo Bay, Cuba - but not much.  The House is irresponsibly filling a vacuum created because the Obama administration failed to lead."

 Death Row Inmate Back in Prison:  A former Ohio death row inmate is back behind bars, reports John Futty of The Columbus Dispatch.  Thomas Anderson was sentenced to death at the age of 17 for murdering a Columbus police officer during a robbery, but was released in 1988 after the Ohio Supreme Court reduced his sentence to life.  His most recent crime, one count of robbery for punching a women who confronted him after he stole a purse from her car, is his seventh felony charge since his early release.

"An Eye for an Eye"... Literally:  FoxNews reports an Iranian man who blinded his lover's husband by throwing poison into his eyes has been sentenced to a punishment to match his crime:  having acid poured in his eyes.  The sentence has been upheld by Iran's highest court and the prosecutor on the case indicated that officials, "have asked for forensic specialists to oversee the blinding of the convict."

The US Supreme Court today declined to review a decision of the Eleventh Circuit overturning the well-deserved death sentence of James Lawhorn.  Justice Scalia dissented, joined by Justices Thomas and Alito:

In March 1988, Altion Maxine Walker offered to pay her nephews, James Lawhorn and his brother Mac Lawhorn, $100 in exchange for murdering her boyfriend, William Berry. The Lawhorns accepted. After they ambushed Berry, Mac Lawhorn shot him, causing him to fall. James Lawhorn (hereinafter Lawhorn) then heard Berry making"'gurgling noises'" and shot him repeatedly "'to make sure he was dead.'" 519 F. 3d 1272, 1278 (CA11 2008).

*                               *                             *

It has been over 21 years since Lawhorn was sentenced to death. Alabama should be not barred from carrying out its judgment based on a federal court's lawless speculation. I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress's command that state criminal judgments must not be revised by federal courts unless they are "contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand. We should grant Alabama's petition for certiorari and summarily reverse the Eleventh Circuit's judgment.

Although the AEDPA deference standard has been largely a success in the guilt phase, it has been much less effective in the penalty phase.  We have reached a point where federal court review of state penalty phase determinations is causing more harm than good.  While the Ninth Circuit is the worst offender, and the Sixth is second, these miscarriages of justice occur in other circuits as well.  The penalty phase should now be removed from federal habeas review of state judgments altogether.

We have made no secret here of the fact that we consider President Obama's transfer of terrorist trials from military commissions to civilian courts to be a huge error.  However, we have not questioned that as commander-in-chief he did have the authority to make that decision.

Maybe not much longer, though.  AP reports:

In a setback for President Barack Obama, Democrats still controlling the House have approved legislation to prevent Khalid Sheikh Mohammed and other detainees at the military prison at Guantanamo Bay from being transferred to the U.S. for trials in criminal courts.

The Guantanamo ban was included in a huge catchall spending bill that passed the House Wednesday by a 212-206 vote. The Senate has yet to act on the legislation, which would further imperil Obama's effort to close the detention center for terrorist suspects.

The move comes after the first Guantanamo detainee to face a civilian trial, Ahmed Ghailani, was found guilty last month of just one of the hundreds of charges brought against him connected to attacks on two U.S. embassies in 1998.

Although Ghailani faces up to life in prison, Republican lawmakers pointed to the case as a reason to support military trials for the Guantanamo detainees.

Update:  David Ingram at BLT has this post and a link to the actual bill language. (The official government system, Thomas, typically does not give bill language to the public until it is too late to contact your congressman.)  Section 1116 of the bill provides:

SEC. 1116. None of the funds made available in this or any prior Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee who--

(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

The Framers of the United States Constitution decided to separate the legislative, executive, and judicial powers to a greater degree than was true in England at the time.  The judicial branch is headed by a separate Supreme Court, not the upper house of the legislature, an example imitated by the mother country only recently.

They didn't go the whole hog, though.  They did leave with the Senate one judicial power of the House of Lords -- trial of impeachments.  This less-than-complete separation is defended in the Federalist Papers, especially in number 66 by Hamilton.

The Senate exercised this judicial power for the first time in a decade today, convicting a corrupt judge from Louisiana, Thomas Porteous. Michael Memoli has this story in the LA Times.

Conviction on the first count was unanimous.  Subsequent counts were less than unanimous, but they have no consequence.  One is enough for removal from office, and the Senate is powerless to impose any other punishment.

"Porteous, who served on the federal court for the eastern district of Louisiana, was charged with accepting cash and other favors from individuals with business before his court in order to pay gambling debts, and with lying to the Senate and FBI following his nomination to the federal bench."

The "everybody does it in Louisiana" defense apparently didn't get much traction.

Date Set for Second Trial in Connecticut Home Invasion:  Randall Beach of the New Haven Register (CT) reports a February 22, 2011 trial date has been set for Joshua Komisarjevsky, the second alleged perpetrator of the Petit family slayings in Connecticut.  Given the publicity of the trial and sentencing for Steven Hayes, however, jury selection could take months.  Hayes's defense team had attempted to portray Komisarkjevsky as the real monster, offering as evidence some of Komisarjevsky's disturbing journal entries describing the night of the killings (which can be viewed via the New Haven Register here).

Full Supply of Lethal Injection Drugs in California:  In response to a public records request from the ACLU, California corrections officials today disclosed they have imported enough to sodium thiopental from Arizona and Britain to execute 175 death row inmates.  The source of the drugs was submitted as part of a report to U.S. District Judge Jeremy Fogel, who is expected to rule early next year whether California's revised executions procedures are constitutional.  Read the Los Angeles Times's story here.

Ninth Circuit Lifts Injunction on Revised California Parole Standards:  The Ninth Circuit yesterday cleared the way for California's Prop. 9, an initiative that significantly extended the time period prisoners must wait for deferred parole suitability hearings.  Earlier this year, a federal district judge halted enforcement of the law, finding that a constitutional challenge to the law by a group of life-term inmates was likely to succeed.  The Ninth Circuit concluded inmates likely did not have a valid ex post facto claim and reversed the district judge's ruling.  Denny Walsh of The Sacramento Bee has this story.

Looking for a New Career?:  How about pot delivery?  Garvin Thomas of NBC Bay Area reports on medical marijuana delivery services in California.  Thomas spent the day with one such delivery man, Chris Rynearson of MedEx in San Jose, who Thomas said packs his delivery suitcase with 1/8 ounce containers of several types of marijuana, cannabis-based lotions, rolling papers, and lighters.  Rynearson said of his job, "This is something that's normal.  It doesn't seem abnormal to me."

Justice Stevens and the Press:  At Accuracy in Media, Lester Jackson has this critical review of press coverage of Justice Stevens, with emphasis on the death penalty issue.

I generally don't join with those who bash defense lawyers as a group.  For the most part, they are responsible professionals who perform an important function in our system.  When it comes to the death penalty, though, some on the defense side seem to come completely unhinged.  AP has this story on the sentencing of Steven Hayes in Connecticut.  Our friend Dudley Sharp has this reaction to defense counsel's remarks:

Defense attorney Thomas Ullmann defended  Steven Hayes in the capital murder trial of the three rape/torture/murders of Jennifer Hawke-Petit, who was raped and strangled to death, along with her two daughters, 17-year-old  Haley and 11-year-old Michaela. Michaela was sexually assaulted. Both girls were burned alive and died of smoke inhalation.  Dr. Bill Petit was beaten with a baseball bat, suffers permanent injuries, but survived. He is the sole survivor from his immediate family.

When the day came for sentencing Hayes to death, what did Ullman say?

"Today when the court sentences Steven Hayes to death everyone becomes a killer. We all become Steven Hayes." 

Ullman said that with Bill Petit and  the extended Hawke/Petit family, loved ones and friends in the courtroom. Ullman called all of them Steven Hayes, as well as all others who find the death penalty a just and appropriate punishment for horrendous crimes.
 
The moral decay of Ullman's statement is hard to fathom, as is the profound cruelty of when and where he voiced it.
 
Even Steven Hayes voiced knowing the moral differences between guilty murderer and innocent victims, the punishment of the guilty and the violation of the innocent.

US Supreme Court Justice John Paul Stevens (Ret.) is the principal architect of today's constitutional jurisprudence of capital sentencing.  Looking back over the decisions from Gregg v. Georgia, 428 U.S. 153 (1976) to last term, Justice Stevens was on the winning side of more of the major battles than any other justice.  So it is exceedingly odd that he has written this article in the New York Review of Books bashing a body of law that is largely his own creation.

The article is a review of a book by David Garland, titled Peculiar Institution: America's Death Penalty in an Age of Abolition.  From the title alone, we know where Garland is coming from.  He asks why America has the death penalty when Europe has abandoned it.  The short answer is that our government is more democratic than theirs, but Garland manages to spin that in ways that make it sound like democracy is a bad thing.  I'll leave refuting Garland for another day.

For much of the article, Justice Stevens makes the claim that the jurisprudence of the death penalty has moved in the prosecution's favor as a result of changes in the membership of the Supreme Court, and he speculates how Justice Stewart would have voted on various cases decided after he retired.  This is where the review gets most peculiar both for what he says and what he leaves out.  To understand how truly peculiar this is, it is important to have some background on the overall evolution of "the fog of confusion that is [the Supreme Court's] annually improvised Eighth Amendment, 'death is different' jurisprudence," Morgan v. Illinois, 504 U.S. 719, 751 (1992) (Scalia, J., dissenting), and Justice Stevens' role in creating it.

AP reports from Connecticut:

HARTFORD, Conn. -- A Connecticut judge has decided that a jury was fair in deciding that Steven Hayes should be executed for a home invasion that left a woman and her two daughters dead.

Lawyers for Hayes had argued that the jury was swayed by emotion after hearing and seeing gruesome testimony. Jurors condemned Hayes to death on Nov. 8.

New Haven Superior Court Judge Jon Blue on Friday denied defense lawyers' motion seeking a new trial, new penalty phase hearing or a sentence of life in prison without the possibility of parole.

The judge says the jury wasn't "driven by passion and prejudice." Public defender Thomas Ullmann says he believes the same issues will come up on appeal.

A capital sentencing jury certainly should not be driven by prejudice.  Is it necessary that the jury's deliberations be devoid of passion?  Is it possible?  Is it desirable?

Thomas Hargrove has this report for Scripps-Howard News Service:

Authorities in Indiana and Ohio have launched investigations into suspected serial killings after a study of FBI computer files found clusters of unsolved homicides of women across the nation.

Also, police in Nevada are hunting a likely serial killer who has targeted up to seven women, mostly prostitutes, and has scattered their partial remains across three states.

Many of the suspected serial killings detected in the study have never before been disclosed to the public.

All told, authorities in seven cities have confirmed that a statistical analysis of federal crime files conducted by Scripps Howard News Service has detected known - or strongly suspected - serial homicides in their communities.

The study was based on computer records of 525,742 homicides committed from 1980 to 2008. The FBI provided most of the data. But Scripps supplemented these using the Freedom of Information Act to obtain detailed records of 15,322 killings that police did not disclose to the federal government's voluntary crime reporting system.

The resulting database - which crime experts say is the most complete accounting of homicide victims ever assembled in the U.S. - was created to determine whether serial killings could be identified among the nation's 185,000 unsolved homicides.