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Today's Supreme Court Decisions


The Supreme Court reinstated the Kansas death penalty law by a 5-4 vote in Kansas v. Marsh. Decision here. CJLF press release here.

In Washington v. Recuenco, the Court also held by a 7-2 vote that "Blakely error," i.e., having a fact necessary to raise the maximum sentence found by the judge rather than the jury, is subject to harmless error analysis, as almost all errors are. Decision here. CJLF press release here.

In United States v. Gonzalez-Lopez, the Court held by a 5-4 vote that erroneous denial of counsel of choice is not subject to harmless error analysis. Decision here.

We will post comments on these cases later today.


Another significant aspect of the Kansas v. Marsh decision today is Scalia's concurrence. For the first time, a member of the court has taken issue with the misleading claims regarding the number of allegedly innocent or "exonerated" inmates released from Death Row. Scalia notes how these claims have been accepted at face value without analysis. In particular, Scalia's critque relies on information contained in the California Attorney General's amici curiae brief filed in another case, House v. Bell, which criticized the faulty methodology and inflated approach of the List of exonerees maintained by the Death Penalty Information Center.

Ward Campbell

After Justice Scalia's dissent in Neder, I was pretty much shocked to see him sign on to the Court's opinion here without some kind of separate concurrence to explain the difference. I would be tempted to say that he may have chosen to support majority's position as a matter of stare decisis (in light of the Neder majority), but if that were the case, a concurrence would likely have been in order.

Anybody else have any thoughts about Justice Scalia's dissent in Neder versus his silent presence in the majority in Recuenco?

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