October 2007 Archives

Times A'Changin'

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Unlike some of the race-obsessed folk on the other side, we do not generally catalog the race of the people involved in the cases we brief or comment on. Most of the time, race is irrelevant to the issues we are discussing. We only care who is innocent and who is guilty. Even so, I couldn't help but be struck by the pictures in the Clarion-Ledger story yesterday on the Berry case.

Mary Bounds, who was murdered twenty years ago, was white. Her husband Charles is also white. The perpetrator, Earl Berry, is also white. Three Mississippi state government officials are pictured in the story. Mississippi Department of Corrections Director Chris Epps is briefing the media. Beside him are Policy Advisor to the Governor Daryl Neely and Superintendent of Mississippi State Penitentiary at Parchman Lawrence Kelly. Behind them is Mississippi's stars-and-bars state flag. All three of these Mississippi government officials are black.

This is not your grandfather's Mississippi.

Injection and Admin. Pro.

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Update: The state will appeal, says prison chief James Tilton in this story in the Stockton Record.


A judge of the Superior Court for Marin County, home of The Big Q, decided that California's new injection protocol wasn't adopted in accordance with the state's Administrative Procedures Act. The order is here. Bob Egelko reports for the SF Chron here. I expect the order would be reversed on appeal if the state appeals, although it might be faster to just go ahead and jump through the admin. hoops.

Mississippi Execution


Update: SCOTUSblog reports the Supreme Court has further delayed this already long-overdue execution, Justices Scalia and Alito dissenting. Order here. Unlike yesterday's order in the state case, which had some welcome and unusual explanation, this one says only that the stay is granted pending the Court's disposition of the certiorari petition.

The Jackson Clarion-Ledger had this story today before the stay.

Jan Greenburg has this story at ABC.


Still waiting for word, and hopefully an explanation, from the Supreme Court on whether justice can finally be carried out for the kidnapping and beating to death of Mary Bounds twenty years ago in Chickasaw County, Mississippi. Danza Johnson has this story in the Northeast Mississippi Daily Journal, with comments from Mrs. Bounds' husband, Charlie. SCOTUSblog has the murderer's stay application here. The State's brief in opposition to the certiorari petition is here. The response to the stay request, which simply incorporates the arguments of the brief in opp., is here.

ABC News is working on a story for tonight, possibly including comments from yours truly. (We never really know until it airs.)

Yesterday's order denying cert. and a stay on the case from the Mississippi Supreme Court is here.

Cert. & Stay Denied in Miss. Case

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The U.S. Supreme Court has denied certiorari in the Mississippi state-court case of murderer Earl W. Berry, No. 07-7275 and denied the accompanying stay application 07A334.

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied. The petition for writ of certiorari is denied. The judgment of the Mississippi Supreme Court relies upon an adequate and independent state ground that deprives the Court of jurisdiction.

This was the easier of the two cases. The Fifth Circuit case under 42 U.S.C. § 1983 is still pending, with a ruling expected tomorrow.

Lyle Denniston has this post at SCOTUSblog.

The ABA's Death Penalty Report

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Yesterday, Mark Sherman of the Associated Press, reported on the ABA's recently published Death Penalty report. The story can be found here.

The report was issued Sunday, October 28, by the ABA's Death Penalty Moratorium Implementation Project, and according to the article, justifies a nationwide freeze on executions.

The report was based on the ABA's study of 8 state death penalty systems (Alabama, Arizona, Georgia, Florida, Indiana, Ohio, Pennsylvania and Tennessee). The study reviewed each state's: collection of DNA data and other evidence; law enforcement interrogation tactics; crime lab offices; prosecutorial professionalism; defense services; direct appeal process; post-conviction process; clemency process; jury instructions; judicial independence; treatment of minorities; and mental retardation and mental illness practices. In the end, the study concluded that only 3 out of the 8 states - Arizona, Florida, and Pennsylvania - sufficiently complied with the ABA standards for death penalty procedures. The report can be viewed here.

There are several problems with the ABA's report. First, as Mark Sherman noted at the bottom of his article, the report is prepared by death penalty opponents. In fact, the director of the project is an ABA attorney who uses her position to encourage state bar associations to press for moratoriums within their jurisdictions - no wonder every state these attorneys have studied has a flawed death penalty process! Bios for the attorneys can be found at the Project's homepage.

Second, the ABA does not finance a project to counter the Death Penalty Moratorium Implementation Project's findings. For example, there is no project devoted to studying the merits of death penalty sentencing and its implementation. There is no ABA study that demonstrates the deterrent effect of the death penalty in jurisdictions. This makes any death penalty report issued by the ABA one-sided, and counterintuitive to the ABA's mission of pursuing justice, particularly justice for the victims and their families.

Finally, the ABA report does not address the issue before the Supreme Court in Baze v. Rees. The report does not cover the effects, or the procedure, used by most states who have chosen to execute through lethal injection. So, while the study may find process to be lacking in every jurisdiction it has studied, it has not addressed whether the implementation of lethal injection warrants a nationwide moratorium of the death penalty.

I guess we'll have to wait for a more evenhanded report from the Supreme Court for that.

No Barks Heard At 1 1st St

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The U.S. Supreme Court released its order list from last Friday's conference. Certiorari was granted in two civil cases, with the Exxon Valdez case getting the press coverage. The "curious incident," as Sherlock Holmes said in the Adventure of Silver Blaze, is what did not happen. Conspicuously absent from the list are the criminal cases we have been following:

New Mexico v. Romero, No. 07-37, on forfeiture of the right of confrontation by wrongdoing (i.e., murdering the witness). Possibly they are going to relist it in order to consider it together with Cage v. California, No. 07-5156, on November 9.

Allen v. Siebert, No. 06-1680, in which the State of Alabama has asked the Court to summarily reverse a truly awful Barkett opinion on the AEDPA statute of limitations. If they relist it too many times, it may become moot, as Siebert is (1) dying of pancreatic cancer; and (2) sentenced to death in another case for three of his other numerous murders.

Black v. California, No. 07-6140, on sentencing, Apprendi, Cunningham, and all that, is not a surprise in being relisted, as the Court has asked for opposition, and it isn't due until November 8.

For comic relief, there is the case of Montgomery Blair Sibley.

Return of the Patchwork Moratorium

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At first, I thought we had a "patchwork moratorium" on the death penalty, where some states would have stays pending Baze and some wouldn't. Then the nonstay decisions were all reversed, so I decided we didn't.

Well, now it looks like Mississippi is on track again. Earl Berry, scheduled for long overdue justice October 30 (he committed murder twenty years ago), has been denied a stay by both the Mississippi Supreme Court and the Fifth Circuit. The latter's opinion is here.

Unless the Fifth Circuit en banc intervenes, this case should require the Supreme Court to tell us if there is a nationwide moratorium or not. Lyle Denniston at SCOTUSblog has this post on Berry's cert. petition from the state court case. Here are the dockets for the stay application and petition for certiorari.

Memo to SCOTUS: whatever you do, please give us a reasoned explanation this time.

Update: Natalie Chandler has this story in Saturday's Jackson Clarion-Ledger. (Hat tip: How Appealing.) Berry's lawyers intend to file a stay application with the Supreme Court on Monday. (Technically, it goes to Justice Scalia as Circuit Justice for the Fifth, but he will refer it to the full court.) The article doesn't mention any en banc request.

News Scan

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Death Sentence: A federal jury has recommended the death penalty for a Missouri woman who, in December of 2004, murdered a young, expectant mother and cut the baby from her womb as reported in this AP story by Heather Hollingsworth.

Medial Ethics and the Death Penalty is the subject of an Op Ed piece by John Hood in the Lincoln Tribune. The North Carolina Medical Board had imposed a de facto moratorium on executions last year when it promised to discipline doctors who were present during and execution, as required the state procedures. The state sued the Medical Board an won. The Wake County Superior Court decision is here (hat tip to Jurist).

News Scan

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New York: Newsday has this story on the New York death penalty case discussed here. The story includes information on the victims and the reaction from one family member. "But Benjamin Nazario, 53, of Flushing, whose brother Ramon Nazario, was killed in the massacre, said he didn't like the decision. 'I want to know the people [judges] who voted against it [capital punishment,] why they don't want the death penalty,' Nazario said."

DNA Advance: Up to this point, forensic DNA has been like fingerprints in one respect. A match proves identity, but the "print" itself without a match to a known sample tells us nothing about the perpetrator. That may change soon, according to this story from Radio Netherlands. A joint Icelandic-Dutch study on skin cancer found that they could tell such things as shade of skin and color of hair and eyes from a DNA sample.

The Execution of Texas murderer Michael Richard on September 25th, the same day the U.S. Supreme Court announced that it would hear the Eighth Amendment challenge to lethal injection in Baze v. Rees, has sparked an outcry among defense lawyers and opponents of the death penalty. A story by R.G. Ratcliffe and Janet Elliott in today's Houston Chronicle reports that several hundred lawyers have asked the Texas Court of Criminal Appeals to allow electronic filing of last minute petitions in capital cases. CBS News reports that the National Association of Criminal Defense Attorneys has filed a complaint against Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, because she would not hold the court open beyond regular hours to review Richard's late appeal. Richard was on parole from one of his two prior felonies in 1986 when he raped and murdered Marguerite Dixon, a nurse with seven children. The lawyers called his execution "tragic" and "unnecessary." One wonders if the victim's children share that view.

No en banc for Ryan: The Seventh Circuit today denied rehearing en banc for former Illinios Governor and convicted racketeer George Ryan, reports Mike Robinson for the AP. In January 2003, on his last day in office, Ryan became the darling of death penalty opponents when he commuted the sentences of all 167 convicted murderers on the state's death row. We didn't hear as much this year about his being nominated for the Nobel PC Prize. Apparently Al Gore sucked up all the oxygen.

Arson: A San Bernardino man suspected of setting one of the devastating fires in Southern California was arrested and another suspect was shot and killed by police yesterday according to an AP story by Jeremiah Marquez. Several state and federal law enforcement agencies are investigating at least two apparent arson caused fires and a $70,000 reward is being offered for information leading to an arrest.

The ABA Individual Rights and Responsibilities section has devoted the entire "Spring" issue of its magazine to the death penalty. All of the authors invited to write for this publication of that broad umbrella organization that represents the entire bar, including prosecutors, have one thing in common. Sorry, no prizes for guessing what it is. That would be too easy.

Siebert Stay

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Update (Thursday, Oct. 25): The full Eleventh Circuit has granted rehearing en banc and vacated the panel opinion and stay but issued its own stay. Judges Carnes and Pryor, formerly of the Alabama AG's office, are recused.


The Eleventh Circuit has stayed the execution of serial murderer Daniel Siebert, scheduled for Thursday. The order is here. The per curiam opinion (apparently reflecting the views of Judges Barkett and Wilson), cites the pending Supreme Court case of Baze v. Rees. Judge Tjoflat disclaims any reliance on Baze. His concurrence is based on Siebert's unusual claim that lethal injection would be cruel as applied to him, given his conditions of hepatitis C and pancreatic cancer.

A separate capital case in which Siebert is sentenced to death for another murder is on the Supreme Court's conference list for Friday. Docket here.

News Scan

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Lethal Injection: A federal district judge has refused to stay the execution by lethal injection of multiple murderer Daniel Siebert as reported in this morning's Fort Wayne Journal Gazette. The judge ruled that Siebert's challenge to Alabama's lethal injection procedure was untimely. The actual order is sealed, according to the Pacer docket. Siebert is scheduled to be executed on Thursday for the murder of a single mother and her two young sons in 1986. He was also convicted of murdering a young woman in a neighboring apartment and confessed to killing several other women.
Update: AP reports, "The 11th Circuit gave attorneys until Wednesday morning to file papers in Siebert's appeal, which means a ruling likely wouldn't come until Wednesday afternoon or Thursday morning."

Sex Offenders: Federal District Judge Paul Cassell in Utah has ruled (decision on page 82) that sex offenders who fail to register after moving to another state are not subject to the increased penalties under the Adam Walsh Child Protection Act, if they moved before February 28, 2007, when the U.S. Attorney General issued the interim rule announcing that the registration requirement applied retroactively. A story by Pamela Manson in the Salt Lake Tribune reports that charges were dropped against repeat sex offender John Gill, although he failed to register with Utah law enforcement after moving from Idaho, because he moved in the fall of 2006. To date, the U.S. Attorney has not decided whether to appeal the decision.

How not to brief: Prof. Eugene Volokh grades the defendant's brief in the Supreme Court child pornography case of United States v. Williams.

NYCA Fails to Correct Its Error

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The New York Court of Appeals today declined to overrule its high-handed, erroneous decision in People v. LaValle. That means that New York has no death penalty until the logjam in the Legislature can be broken. The vote was 4-3. One of the LaValle dissenters was in the majority today, declining to overrule LaValle, even though it is wrong, on the ground of stare decisis, i.e., respect for precedent. Today's decision also means that John B. Taylor gets off with an inadequate punishment for butchering five people in a Wendy's restaurant in 2000. Danny Hakim has this story in the NYT. A poll a few months ago found that New Yorkers favor the death penalty by more than two to one.

News Scan

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Homeless: An interesting article by C.W. Nevius in yesterday's San Francisco Chronicle explains that quite a few homeless people in that city actually prefer to live on the street and will not take advantage of the free services (including housing) offered by the city. The City by the Bay is attempting to move derelicts off its streets in an effort to turn around a drop in tourism.

Ninth Circuit Judge Alex Kozinski will take over as the Court's chief judge on December 1, as reported in this story by Pamela MacLean in the National Law Journal. Kozinski was appointed by President Ronald Reagan in 1985 and is considered a conservative rebel on the liberal leaning court. When hearing the news Judge Stephen Reinhardt, the court's most outspoken liberal crusader, told the Journal, "Buckle your seat belts; its going to be a bumpy ride."

Getting Tough Up North: "Dangerous criminals are loose on the streets because of lax laws that opposition MPs have been loath to help fix, Prime Minister Stephen Harper charged yesterday," reports Kathleen Harris for the Winnipeg Sun. "While six of 13 crime bills were held up last session, Harper all but assured swift passage of the Tackling Violent Crime Act by banning substantial amendments and making it a confidence vote." Canada DoJ has this backgrounder on the legislation.

Protest News: "Flag-waving demonstrators far outnumbered a group of peace advocates who were protesting a U.S. Marine Corps recruiting center in downtown on Wednesday," Kristen Bender reports for the Contra Costa Times. Why is that news? This happened in the People's Republic of Berkeley. (Hat tip, Best of the Web, opinionjournal.com.)

Patchwork Moratorium


Update3 (10/18 1:30): The Georgia Supreme Court changed its mind. So, apparently the moratorium is no longer a patchwork.

Update2: The Georgia Board of Pardons and Paroles has refused to stay the execution of Jack Alderman, scheduled for Friday, reports Rhonda Cook for the Atlanta Journal-Constitution.

Update: AP reports the Supreme Court has granted a stay in the Emmett case: "The stay granted by the [Supreme] court will last until [the Fourth Circuit] takes another look at the case. The justices did not comment further on their order." The order is here. It actually says "stayed pending final disposition of the appeal by the ... Fourth Circuit...." Not very illuminating. If the Fourth summarily affirms tomorrow for the same reasons it denied the stay, a new execution date can be set.
When the Supreme Court agreed to review the lethal injection controversy in Baze v. Rees, the question was breathlessly asked all over, "Does this mean a moratorium on executions." At first it appeared the answer was no, as the high court denied a stay to Michael Richard in Texas and he was executed. Then the court granted a stay to another Texas inmate, Carlton Turner. The cases may well have been distinguishable, but I commented here that an explanation was warranted. The Texas Court of Criminal Appeals then began staying executions. More recently, we have had some action in other states.

News Scan

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"Rambustious" is not a good way to be in a stadium, if you don't want the police to arrest you and put you in a "carotid restraint hold." Specifically, don't refuse to leave when ordered to and then kick the cops and security guards. If you do, you can't sue the cop and the city, even in the Ninth Circuit, according to today's decision in Acosta v. Hill.

The Mukasey hearings so far indicate that the new AG will be confirmed easily, but there were a few fireworks, reports Lara Jakes Jordan for AP. "Sen. Russ Feingold, D-Wis., hammered Mukasey for writing a 2004 speech that derided criticism of the USA Patriot Act as 'recreational hysteria.'" That's actually a rather nice turn of phrase, in our humble opinion.

Research Note: From the University of Alberta, "While it is commonly thought that men with low IQs sexually offend because of a lack of knowledge or sexual deviance, new research has found the men may sexually offend because of their exposure to 'corrective' sex education previously taken." (Hat tip: Best of the Web) One more reason to be skeptical of experts who claim to be able to "treat" criminality.

Yesterday, the Senate passed HR 3093, the funding bill for Commerce, Justice, and Science (an odd mix), including an amendment by Sen. Gordon Smith of Oregon. That amendment funds an "200 additional assistant United States attorneys to carry out section 704 of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248; 120 Stat. 649) concerning the prosecution of offenses relating to the sexual exploitation of children." Congressional Record page here.

News Scan

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Death Penalty: Senior Ninth Circuit judge Arthur Alarcon, who supports capital punishment says the delays in executions, averaging over 17 years, are the result of the California legislature's unwillingness to fund the system, as reported by Henry Weinstein in yesterday's Los Angeles Times. The judge said that legislators "may be comfortable with a de facto abolition of capital punishment."

Fugitive Caught: A man sought by both state and federal police for the videotaped rape of a 3-year-old girl has been arrested in Henderson, Nevada according to this AP story by Ken Ritter. Habitual criminal Chester Stiles was identified and arrested by police after he was pulled over late Monday for not having a license plate.

Justice Thomas is the subject of this favorable Los Angeles Times editorial by James Kirchick, which addresses criticism of his views on affirmative action. He cites liberal Thomas bashers for being guilty of "blatant intellectual inconsistency" and hypocrisy.



Not much newsworthy out of the Supreme Court today. Friday's conference didn't include any of the cases we are following. The orders list is here. The Court took a money laundering case, Cuellar v. United States, 06-1456, discussed at SCOTUSblog and SL&P.

In Smith v. Arizona, Justice Breyer has a dissent from denial of certiorari on the perennial Lackey claim, that long delays before execution are cruel to the defendant. It is more than a little weird than a judge can opine, presumably with a straight face, that something caused by the defendant and the courts over the state's vehement objection can entitle the defendant to set aside the state's judgment against him.

If you really want to do something about this, Justice Breyer, the path is quite clear. First, dismantle the system of federal micromanagement of the penalty phase of state capital cases that followed in the wake of Gregg v. Georgia. Keep Gregg itself, requiring the states to adopt systems that fix the Furman problem, but leave the details of administration of those systems to the state courts.

Second, genuinely enforce the Antiterrorism and Effective Death Penalty Act of 1996. If Lindh v. Murphy had been correctly decided, AEDPA would have applied to Smith's 1999 federal habeas case. In that case, the Ninth Circuit overturned the decision of the state courts because 2 of the 4 federal judges who heard the case disagreed with the state court. The district judge and the dissenting judge in the Court of Appeals thought the state court was right. The state decision was reasonable and shouldn't have been overturned under AEDPA. This execution should have been carried out seven years ago.

Interrogation Video

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The Governator has vetoed SB 511, which would have required video recording of station-house interrogations in violent crime cases. Demian Bulwa reports on this and other bill signings and vetos for the SF Chron. Text of the bill here. Veto message here:

Police interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine which methods of interrogation are best for the situation. This bill would place unnecessary restrictions on police investigators.

Also in the Chron on Cal. bill-signing season, resident contrarian Debra Saunders has this article on the creeping nanny state.

Death Penalty Stays

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Tom Goldstein at SCOTUSblog has this post correcting a mistaken New York Times story regarding stays of execution and the "rule of four." It only takes four votes for the Supreme Court to accept a case to be reviewed (grant certiorari), but it takes a majority of five to grant a stay. Traditionally, a fifth Justice has added the necessary vote to grant the stay when a case has been accepted for review. There has been no exception to this practice in a long time, but the Times article mistakenly equates four votes to grant a stay with four votes to grant certiorari. Tom notes they are not the same and that Chief Justice Roberts' confirmation hearing testimony involved the latter.

From Russia with...

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This extended story from the Buffalo News documents the child pornography link between Russian and the United States. From the story:

Virtually no country is exempt from this ugliness. But two nations — Russia and the United States — shoulder much of the blame, The Buffalo News found in a year-long investigation.

Here in Russia, where possessing child pornography is legal, no child is too far from the pornographer’s clutches....

Russia produces the child pornography, and Web servers in the United States host the disgusting images so anyone — with Americans being the single biggest market — can see them for a price. In fact, nearly two-thirds of all commercial child pornography on the Internet — including images produced in Russia — is transmitted to the world through Web servers owned and operated in the United States, one study found.

Root Cos

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Bill Cosby was on Meet the Press this morning for the full hour. A transcript is available here. MSNBC will rebroadcast the show at 6 p.m. ET Sunday night and again at 2 a.m. ET. Cosby's new book is titled "Come On, People: On the Path from Victims to Victors." Excerpts are here. His co-author is Dr. Alvin Poussaint of Harvard Med., and he was also on the program. Cosby acknowledges that racism still exists and remains a huge problem, but parenting and especially teaching personal responsibility should be the primary focus.

You can’t feel that they’re—that, “Well, it’s the system, and that’s why it”—no, bring your children in. If you say that “my black child is going to do more time for selling crack cocaine than your white child for selling cocaine, then I’m going to tell my black child, ‘Don’t sell it. Here’s what’s happening, son.’” It’s the same as warning your kid that the Ku Klux Klan is coming. Don’t tell me you can’t help it.

The Promise of Faith-Based Prisons

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David Crary of the Associated Press has this story on the growth of faith-based prisons. A snippet (emphasis added):

Even as they proliferate, fueled by the fervor of devout volunteers, these programs are often criticized. Evidence that they reduce recidivism is inconclusive, and skeptics question whether the prevailing evangelical tone of the units discriminates against inmates who don't share their conservative Christian outlook.

However, evidence is strong that violence and trouble-making drop sharply in these programs, and they often are the only vibrant rehabilitation option at a time when taxpayer-funded alternatives have been cut back.

And later in the story:

Prison Fellowship's president, former Virginia attorney general Mark Earley, said any move to curtail evangelicals' volunteer work in prisons would undermine the prospects for greater nationwide emphasis on rehabilitation.

"If you excluded faith-based groups, you're excluding the largest number of people willing to be involved," he said. "There's not a whole lot of other people lining up at the prison doors."

Link: Prison Fellowship Ministries

Public Support for DP Up Slightly


The Gallup Poll's death penalty survey was released yesterday. It is available here, free for the time being. On the question that best reflects public support, three-quarters of the American people support the death penalty in its present extent or want it imposed more often.

The traditional question that Gallup has asked since 1936 is, "Are you in favor of the death penalty for a person convicted of murder?" The result was 69% yes and 27% no, an increase of 5% in the spread since May 2006. These numbers have not varied much since 1999, though, ranging only from 64-71 yes and 22-32 no. Support was higher in the 1990s at around 80% and lower before then. People who like to spin misleading half-truths like to say support is "down" by comparing the present level to the all-time high. Of course, the present level of support is down from its all-time high and up from its all-time low. Most statistics are.

News Scan

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Execution Delay Arizona murderer Jeffery Landrigan, whose death sentence was reinstated by the Supreme Court last May, has won a delay from the Arizona Supreme Court as reported by Arizona Republic reporter Michael Kiefer. In 1989, Landrigan escaped from an Oklahoma prison where he was serving time for another murder, when he robbed and murdered a man in Phoenix. The Arizona Court is awaiting the Supreme Court's decision on the Constitutionality of lethal injection in Baze v. Rees.

Homeless people can sleep on sidewalks at night as part of a deal worked out between the City of Los Angeles and the ACLU according to this Associated Press story. ACLU leader Ramona Ripston has agreed to let the police move vagrants off the sidewalks during the day after the city builds 1,250 housing units for them. It comes as no surprise that while the number of homeless has dropped in Los Angeles County, it has increased downtown as reported by Susannah Rosenblatt in this morning's LA Times. The National Center for Policy Analysis reports that Los Angeles remains the homeless capital of the U.S.

Yet More from the EU Anti-DP Day

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This one is so bad it's actually funny, notwithstanding the seriousness of the underlying question. Stephanie Kennedy reports for Aust. BC on Europe's anti-DP day:

The secretary-general of the council, Terry Davis, explains why Europe is against the death penalty in all cases.
"It does not deter criminals from killing people, we know that, because if it did there would not be any murders in those states which still have the death penalty," he said.

Amazing. A person completely devoid of elementary logic was chosen to be secretary general of the Council of Europe.

Because the death penalty is not a 100% deterrent and does not deter every murder, we know that it is not a deterrent at all and does not deter any murders? Terrific explanation, Mr. Davis.

Medellin Argument

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The transcript is now available.

JUSTICE KENNEDY: Can this court interpret the meaning of the Avena judgment if it's ambiguous? For instance, it said that a number of Mexico nationals have not received a hearing. It didn't say all of them. And I have a problem, incidentally, because I think Medellin did receive all the hearing that he's entitled to under the judgment anyway.

I think so, too. From the argument, it appears that there is a good chance this will be another 5-4 decision with Justice Kennedy in the majority, so it's good to know he has the same basic problem with the whole case that is the basis of our brief. Curiously, though, Chief Justice Roberts indicates on page 27 that he believes the ICJ's judgment "suggests there should be a new determination in every case." That suggestion, as our brief explains, is made in the context of discussing procedural defaults committed prior to actual notification of the consulate. The ICJ opinion's theory of why the treaty could trump a procedural default rule is inapplicable to post-notification defaults. On page 85, the Chief gets back to the issue of whether the Supreme Court has authority to interpret the ICJ judgment.

This is a close one. Stay tuned.

News Scan

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Medellin Argument: Mark Sherman has this AP story on the argument. The Court extended the argument time to 90 minutes, an unusual step. Lyle Denniston has this report of the argument at SCOTUSblog. Melissa Underwood of Fox News has this preargument story.

Witness Protection: Bob Egelko has this story on a a federal case where reputed gang members are seeking the identity of witnesses before trial. The Supreme Court denied certiorari Tuesday in Fort v. United States, No. 07-31. The Ninth Circuit panel opinion is here, and the denial of rehearing en banc with concurrence and dissent is here. Although the Supreme Court has authority to take federal cases before trial, it rarely does, and the interlocutory nature of the appeal was the first argument in the Solicitor General's brief in opposition.

Harmless and cumulative error are discussed in the Ninth Circuit's decision today in Parle v. Runnels. No mention of Fry v. Pliler, the most recent Supreme Court opinion on harmless error in habeas cases.

Aussie Backlash

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"In a speech on Monday night, [Australian Labor Party shadow foreign affairs spokesman Robert] McClelland said a Rudd government would lobby Asian nations for clemency for mass murderers such as terror boss Osama bin Laden and the Bali bombers." Bad move, report Gerard McManus and Fay Burstin in the Herald Sun, especially with the anniversary of the Bali bombing coming up.

"The Opposition Leader [Kevin Rudd] was forced into an embarrassing about-face amid a wave of outrage from the victims of the Bali bombings and condemnation from Prime Minister John Howard."

SCOTUS Orders List

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The U. S. Supreme Court released its orders list this morning. No new cases were added for oral argument this term.

In the Ohio capital habeas case of Hudson v. Spisak, No. 06-1535, the Court vacated and remanded to the Sixth Circuit for reconsideration in light of Carey v. Musladin and Schriro v. Landrigan. Justices Stevens, Ginsburg, and Breyer dissented. The Sixth Circuit decision had granted relief on the penalty, not guilt, because of allegedly ineffective assistance of counsel and jury instructions on mitigation. The Ohio AG's certiorari petition is available here via SCOTUSblog.

In Chester v. Texas, No. 06-1616, the Court declined to review the decision of the Texas Court of Criminal Appeals on the standards used to determine mental retardation for the purpose of the Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002), which prohibited execution of the mentally retarded. SCOTUSblog has the petition, opposition, and reply.

News Scan

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Ohio's Death Penalty has been the subject of a recent report by an ABA committee (cited here on 10/1), which surprised no one by calling for a moratorium. On September 30, the Cincinnati Enquirer published an OpEd piece by Ann Marie Tracey, law professor at Xavier University and former state judge, who agrees with the committee's report. One of her problems with the current process is that potential jurors in capital cases who refuse to vote for a death sentence are dismissed. This past Sunday the Enquirer printed an OpEd by Hamilton County prosecutor Joe Deters which responds to the report and Professor Tracey.

Lethal Injection: Since the Supreme Court has selected Baze v. Rees for review this fall, Death Penalty opponents have been amplifying their claims about the excruciating pain caused by the three-drug cocktail used to euthanize condemned murderers. One popular claim is that prisoners in the United States are executed by means that the American Veterinary Medical Association regards as too cruel to use on dogs and cats. This is not true but it plays well. A story by reporter John Moritz in the Fort Worth Star Telegram discusses how opponents have concocted this fiction.

Medellin Coverage

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There are a number of articles in the press today about Medellin v. Texas, to be argued Wednesday. Patty Reinert has this article in the Houston Chronicle. From the UK comes this article in the Guardian.

James Oliphant of the Chicago Tribune has this story. I was rather surprised by this passage:

But Kent Scheidegger of the California-based Criminal Justice Legal Foundation, a victims-rights advocacy group, said the case is about a heavy-handed federal government interfering with state affairs.

No, actually, I didn't say that. What my brief says, what our press release says, and what I told Mr. Oliphant, is that compliance with the Avena decision does not require reopening this case. The claim of prejudice Medellin is making now was defaulted after the Mexican Consulate had knowledge of his case, and Avena does not preclude enforcement of default rules in that circumstance.

The recent issue of Scientific American Mind has an article by prominent psychologists Scott O. Lilienfeld and Kelly Lambert on the history of recovered memories used in psychotherapy. As Lillenfeld and Lambert allude to, the recovered memories movement was largely responsible for the genesis and explosive growth of the controversial diagnosis of multiple personality disorder during the 1980s. It is no coincidence that the specious multiple personality disorder and recovered memory movement both occurred during the daycare sexual abuse scandals of the 1980s which led to numerous people being falsely accused of worst possible crimes. Most reasonable people look back at these times and wonder how could such junk science so perniciously influence our legal system. Yet recovered memories and multiple personality disorder was heralded at the time by the various professional associations and academics as "science" and those who argued otherwise were labeled "deniers." Professors readily embraced media appearances suggesting that this new science was uncovering an ugly empirical truth about our society. Hindsight gives us the ability to laugh (and perhaps shed some tears) at this psuedoscience.

News Scan

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CSI TV shows are not reality. We all knew that, of course. This article by Nicholas Costrini, M.D., in the Savannah Morning News describes some of the departures from reality in a readable way. Could we hand this out in the jury waiting room?

Duke Lacrosse Players Sue: Former District Attorney Mike Nifong and the City of Durham are the targets of a lawsuit filed by the three Duke University Lacrosse players falsely accused of raping an exotic dancer last year. The Associated Press story by Aaron Beard reports that the city has pledged to defend itself and its employees, but not Nifong.

Homeless Crackdown: With a plan that looks remarkably like former Mayor Frank Jordan's Matrix Program from the early 1990s, San Francisco Mayor Gavin Newsom plans to reduce littering, vagrancy and other public order offenses as reported in this AP story. Like Matrix, police and social workers will be patrolling the city for derelicts and removing them to service providers. Those who don't cooperate can be cited and jailed. The Matrix Program, and a similar effort in New York, reduced crime and made both cities more hospitable to local residents and tourists.

Blog Attrition

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Ohio Death Penalty Information blog has officially hung it up, as related in this post. As we noted previously AEDPA Law & Policy Blog hasn't posted anything since the Panetti decision in June. These were both solo blogs, and maintaining one can be quite a strain.

News Scan

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The Lethal Injection issue is discussed in this Los Angeles Times editorial. While the paper acknowledges that it opposes capital punishment, it also points out that the legal dispute over lethal injection is a sideshow which will not end executions and may ultimately make things more difficult for abolitionists.

The Death Penalty is defended in an OpEd piece in the Atlanta Journal Constitution by Newton County District Attorney Ken Wynne. He gives a brief history of Georgia's law from Furman to the present and discusses some of the claims made by abolitionists.

The Retrial of a Scotsman for the 1986 arson/murder of a 2-year-old girl is drawing international attention according to this editorial in the Toledo Blade. Kenneth Richey, who has criminal convictions on both sides of the Atlantic, was convicted and sentenced to death for setting the fire to his ex-girlfriend's apartment which killed little Cynthia Collins. Last August the Sixth Circuit overturned his conviction finding ineffective assistance of counsel. The state has decided to retry the case.

More on Texas Stays


In a comment to our previous post, "federalist" points us to this story on curious case of denial of a stay to Texas murderer Michael Richard on Sept. 25. The Supreme Court granted a stay to Carlton Turner on Sept. 27, and the Texas Court of Criminal Appeals granted one Tuesday to Heliberto Chi.

The story says that Richard's lawyers asked the Texas CCA to stay open after 5:00 p.m., and they refused. I don't practice in that court, so I don't know if that is credible. What I do not find credible is this statement in the article:

The legal move [going to the U.S. Supreme Court] delayed the execution by a few hours, but since the convict did not file his appeal with a local court first, his arguments were not accepted in Washington.

Now, Rule 23 generally requires seeking a stay from a lower court first, but it makes an express exception for "extraordinary circumstances," which the events related in the story, if true, would certainly be. SCOTUS has a full time emergency applications clerk whose job is to deal with issues like this, and I am quite sure he is familiar with the rule.

How does the reporter know what the reason for denial was? The orders, at the end of the Sept. 25 orders list, are unexplained. The story doesn't say. I find it difficult to believe that the Court would have denied a stay on that basis in these circumstances, especially without dissent.

Is this just speculation from defense counsel being reported as fact? It wouldn't be the first time. This is bad press for both the Supreme Court and the Texas CCA, and the resulting loss in public confidence in the courts is a good reason not to issue unexplained orders in cases such as this. The Court should issue a postmortem opinion explaining why it denied relief, as it did in Ex parte Quirin, 317 U.S. 1 (1942).

Suggestibility Tests

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Psychology and Crime News has this post on the Gudjonsson Suggestibility Scales. I had not previously heard of this instrument, but it may be coming soon to a courtroom near you.

People who are high in IS [interrogative suggestibility] are more susceptible to making false confessions under interrogative pressure, in a police or military interrogation scenario, for instance. However, as the authors point out, some offenders might be motivated to appear suggestible or vulnerable even if they are not. For instance, if an offender wanted to retract a statement or confession, or “in circumstances where the successful demonstration of vulnerability may lead to a reduction in a fine or sentence or even to escaping a custodial sentence”.

The problem is explored in a forthcoming article: Julian Boon, Lynsey Gozna and Stephen Hall (in press). Detecting ‘faking bad’ on the Gudjonsson Suggestibility Scales. Personality and Individual Differences

Injection Question Dropped


In the Supreme Court lethal injection case, Baze v. Rees, Question 4 in the petition for certiorari is:

IV. When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?

As previously noted here, the correct answer to this question is, "Are you out of your cotton-pickin' mind?" Further, I suggested the Court might modify its grant of certiorari to remove that question. Sure enough, Lyle Denniston reports at SCOTUSblog, the Court has done so.

Update: The order is now on the Court's website here.

Texas Stay

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AP reports that the Texas Court of Criminal Appeals has stayed the execution of murderer Heliberto Chi, which had been scheduled for Wednesday.

We will have to see how this shakes out over the next few weeks. It is possible that there will be a de facto moratorium until the Supreme Court decides Baze v. Rees. There is substantial reason to believe that moratoriums kill innocent people. See Dale O. Cloninger & Roberto Marchesini, Execution Moratoriums, Commutations and Deterrence: the case of Illinois, Applied Economics, vol. 38, no. 9, pp. 967-973 (2006).

Deterrence Wars

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   Nothing induces hysteria in the anti-death-penalty crowd as much as the new generation of studies confirming that the death penalty does, indeed, have a deterrent effect and save innocent lives when it is actually enforced. There is good reason for the reaction. Deterrence is the strongest argument for the death penalty in terms of persuading people who are otherwise on the fence. As a result, the studies and the people who do them have been the subject of attacks. Some of the criticisms are bona fide scholarly debate. Some are just bald-faced lies, as noted here.

   One of the most widely cited criticisms is Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005). (This article is not included in our list of deterrence studies from peer-reviewed journals, because it is not in a peer-reviewed journal. See note 56, below.) Authors of two of the studies that Donahue and Wolfers criticize have already posted working-paper versions of replies, and they are in the working paper section of our deterrence study list.

   On Monday, Hashem Dezhbakhsh and Paul Rubin of Emory University posted a draft of their reply, titled From the “Econometrics of Capital Punishment” To the “Capital Punishment” of Econometrics: On the Use and Abuse of Sensitivity Analysis. To call it blistering would be an understatement. I have copied the summary from the end of the paper after the jump.

News Scan

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Death Penalty: A man facing execution in Texas Wednesday, has asked the Supreme Court to grant a stay pending resolution of the Kentucky lethal injection case of Baze v. Rees, as reported by Michael Graczyk in this Associated Press story. Heliberto Chi, a Honduran sentenced to death for murdering a clothing store employee during a robbery in 2000, is hoping that the Court will spare him as it did Texas murderer Carlton Turner last week.

Sex Offender penalties in Florida tripled Monday as a new sex crime law took effect. A report by AP writer Travis Reed calls the new law one of the toughest in the country, tripling the maximum sentence for soliciting sex with a minor to 15 years. This is very bad news for habitual sex offender William Joe Mitchell, a habitual criminal sought by Florida police for luring a 15-year-old girl to meet him for sex Monday. Mitchell, who is 46 and has 14 prior arrests, met the girl while trolling on Myspace.com, telling her that he was 24, as Travis Reed reports here. The girl was found alive today after Mitchell left her at a WalMart.

SCOTUS Relists and Denials


We previously noted here the cases on SCOTUSblog's "petitions to watch" list for the "long conference" of September 24. The certiorari grants were announced the next day and described here. The session opened today, and the second shoe dropped from the long conference, as it traditionally does. The Court announced a long list of cert. denials. The interesting thing is the cases from the conference list that were not previously granted and are not on the denial list. These cases are still alive and will likely be relisted for reconsideration at another conference.

Amy Howe notes here at SCOTUSblog that Chester v. Texas, No. 06-1616 has already been relisted for this Friday's conference. This case involves the definition of mentally retarded for the purpose of the Atkins v. Virginia rule. Will Atkins be a new can of worms, such that once a federal rule is announced the federal courts must micromanage it? Look for an order Monday on whether to take this case.

Two Confrontation Clause cases, Missouri v. March, No. 06-1699, and New Mexico v. Romero, No. 07-37, are missing from the list. The docket in March indicates that a motion to dismiss under Rule 46 (agreed to by both parties) is pending. Romero will presumably be relisted sometime fairly soon.

Randolph v. Raygoza, No. 07-102, on deference to state-court factual findings in federal habeas, is missing from the list and will likely be relisted.

Denied petitions include three ineffective assistance cases, Arave v. Lankford, Harvey v. Florida and Ozmint v. Ard, two Batson cases, Missouri v. McFadden and Bell v. California, two search and seizure cases, Golphin v. Florida and City of Bridgeport v. Russo, and two sentencing cases, Utah v. Von Ferguson and Sasouvong v. Washington. The question in Sasouvong was whether juvenile priors can still be used to enhance after Apprendi and its progeny.

ABA's Ohio DP Study

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"Death penalty study couldn't get traction," is the title of this article by Andrew Welsh-Huggins of AP.

Anticipation over the report was high, and the state's American Civil Liberties Union chapter scheduled a rally two days later, hoping to ride the tide of the report's findings.
But the study found itself in trouble almost immediately over the makeup of the 10-person team of Ohio lawyers.
No members are current prosecutors. Four are defense lawyers, a fifth is a lawyer and professor who works to free innocent people through DNA testing, and a sixth is a Democratic lawmaker, Rep. Shirley Smith of Cleveland, long opposed to the death penalty.

News Scan

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Another Campus Shooting resulted in the death of a University of Memphis football player on Sunday. An AP story by reporter Woody Baird reports that Taylor Bradford, a 21year-old defensive lineman from Nashville, was shot at 9:45 PM Sunday near a campus housing complex. Authorities believe that Bradford was the intended victim.

New Term: San Francisco Chronicle reporter Bob Egelko has this take on new SCOTUS term. He lists the controversial cases up for review and suggests that Kennedy may join the Court's liberal wing on several of them. BBC Washington reporter Laura Smith-Spark's story on the new term hints that the Court may continue what many characterized as a conservative track in rulings last term, supported by University of Virginia Professor AE Dick Howard's comment that, "The court is nearer to having an authoritative conservative majority than at any time in decades."

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