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News Scan


Thomas Sowell has an interesting column in the Detroit News which compliments our August 28 post on Comparative Crime Statistics. Undoubtedly someone will be offended and perhaps confused by Sowell's assertion that "Millions of crime victims pay the price of the left's illusions about crime."

Getsy Rehearing. The Ohio Attorney General has petitioned for rehearing and rehearing en banc in the astonishing case of Getsy v. Mitchell, previously discussed here.

South Dakota Reprieve. The Capital Journal in Pierre, SD has this article on Gov. Mike Rounds' decision to delay the execution of Elijah Page rather than just direct the prison officials to follow the method prescribed by state statute. Among the critics is Jack Billion, the Democratic candidate opposing Gov. Rounds in his reelection bid.

Scheduled execution this evening in Texas. Derrick Frazier and Jermaine Herron shot and killed Betsy Nutt and her 15-year-old son with guns they stole from a nearby home. After the murders took place, Frazier and Herron loaded up Nutt’s truck with stolen property. According to this AP story, Herron was executed in May, and Frazier’s reprieve, granted earlier this year by the Texas Court of Criminal Appeals, has been lifted. Barring further delays, Frazier will be the 20th person executed in the state of Texas this year.

Florida Injection Case. The case of Clarence Hill, noted in yesterday's post on the Oklahoma execution, was remanded from the Eleventh Circuit Court of Appeals to the Federal District Court on Wednesday. Opinion here.


Relative to Getsy v. Mitchell, if the Sixth Circuit declines to take up the matter for en banc review, the case may be primed for a grant of certiorari by the US Supreme Court. In the past three years, the US Supremes have accepted 3 Ohio capital habeas cases, where by a 2 to 1 majority, the Sixth Circuit had granted relief. The results were remarkable. Two of the three (Mitchell v. Esparza and Bradshaw v. Richey)were summarily reversed without dissent. The third (Bradshaw v. Stumpf) was accepted for plenary review and reversed without dissent. During the oral argument, masterfully done for the Warden by Solicitor General Douglas R. Cole, the inmate's counsel was unable to articulate even the claim on which relief was granted, let alone a legal rationale to justify the decision by the Sixth Circuit. This track record suggests that any new capital case cert petition brought by the Ohio Solicitor General might get a close look by the US Supremes. Unfortunately, despite the willingness of the US Supremes to accept for review Ohio capital habeas cases, it could appear to an objective observer that respect for the rule of law by some Sixth Circuit jurists has not been enhanced. The Getsy decision stands as an example of that proposition.

Middleamerican's comments bring up a point that was raised in the thread over at the Volokh Conspiracy: whether en banc review or summary reversal is the soundest course of action. Commenters there pointed to some problems with the decision that make it poorly suited for a cert grant. Specifically, the appellate panel also remanded for an evidentiary hearing on a claim of judicial bias and declined to reach a series of other challenges because it was granting relief on other grounds. So, it seems to me that a summary reversal would put the case right back before the same panel of judges again, leaving them plenty of ways to grant relief or at least send it back for further proceedings. From the state's point of view, en banc review is likely the most effective means of seeing the conviction and sentence upheld.

Getsy was authored by the same judge (Gil Merritt) who granted the late-night stay to Sedley Alley after a particularly grueling process with a large number of last-minute appeals.

I don't recall Kent commenting on that one. I'm betting he was probably so disgusted by Judge Merritt's exercise of raw judicial power on behalf of an absolutely brutal murderer.

Middleamerican--you forgot Bell v. Cone.

Bell v. Cone was a Tennessee case, but the points are well taken. Judge Merritt authored Bell 1 and Judge Ryan authored Bell 2. Judge Norris dissented on both. Of course, the US Supremes reversed each of the first two. Cone v. Bell was docketed in the Sixth Circuit over seven and a half years ago, and has been decisional following the second reversal since May 17, 2005. It remains to be seen what further drama will unfold, but it is unlikely that the majority has run out of reasons to be displeased with the judgment of the Tennessee courts.

The Bell v. Cone story shows just how bankrupt Justice Breyer's idea that the state has to execute a person within X amount of time. I bet that Getsy takes a while as well.

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