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Review of Study on Death Penalty Reversals:  Homicide Survivors posts "A Broken Study," Dudley Sharp's critique of James Liebman's notorious "A Broken System: The Persistent Pattern of Death Penalty Reversals in the United States," along with its 2002 updates. Sharp finds that less than 30% of the 5555 death sentences handed out between 1975-1995 were overturned because of error.  This contradicts the study's conclusion that 68% of the death sentences were overturned because of error.  The post goes on to say that "[e]ven the 30% is too high, because some of those cases were overturned because of either new legislative or case law that didn't exist at the time of the trial."  Dudley Sharp then offers up some criticisms by others of the study's review of Pennsylvania, Florida and Nevada death sentences.  In Nevada, for example, the AG responded that "death penalty records are kept by the Nevada Supreme Court, Attorney General, Department of Prisons, 17 district attorneys and 17 court clerks, yet Liebman got his from criminal defense attorneys (who apparently reported their wins, but not their losses) and the NAACP Capital Punishment Project...."

Two Different Ninth Circuit AEDPA decisions:
  At Sentencing Law and Policy, Doug Berman has a quick post on Jones v. Ryan and Libberton v. Ryan, two Ninth Circuit cases granting habeas because the defendant received ineffective assistance of counsel.  Jones reversed the district court's denial of habeas because counsel failed to: 1) secure the appointment of a mental health expert; 2) timely move for neurological and neuropsychological testing; and 3) present additional mitigation witnesses and evidence.  Libberton affirmed denial of habeas as to the guilt phase of petitioner's trial, but reversed as to the penalty phase where counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator's primary responsibility for the crime.  Berman comments: "Though I think the Ninth Circuit has generally failed to live up to its (deserved?) liberal reputation in much of its post-Blakely and post-Booker non-capital sentencing jurisprudence, the judges on the Ninth Circuit continue to find ways to reverse capital sentences...."

En Banc Hearing in Ninth Circuit Search Case:  Eugene Volokh posts on Volokh Conspiracy that the Ninth Circuit has agreed to to rehear a Fourth Amendment search case addressing the search of a family member's home for a suspect's weapon.  Millender v. County of Los Angeles addressed the search of a felon's foster mothers' home after police heard the felon might be staying at his foster mothers'.  The police obtained a warrant for "all firearms and firearm-related items."  When they searched the house, police did not find Bowen or the gun with which he had committed the crime, but they did find and seize "Mrs. Millender's personal shotgun ... and a box of 45-caliber ammunition."  Mrs. Millender then sued, claiming the search violated the Fourth Amendment.  In May the Ninth Circuit held that the defendant police officers were shielded by qualified immunity because the search was authorized by the warrant, and that this would be so even if the warrant was unconstitutionally overbroad.  Concurring Judge Fernandez agreed that the officers were shielded by qualified immunity because of the warrant, but concluded that the search was indeed unconstitutional.  Dissenting Judge Ikuta concluded "no officer of reasonable competence could have thought [the] affidavit established probable cause to search for the items listed in the warrant."  Stay tuned for the Ninth's en banc ruling.

SCOTUSblog with a UK Accent:   Kristina Moore posts on SCOTUSblog that barristers at Matrix and solicitors at Olswang LLP have launched UKSC Blog to cover the United Kingdom's new Supreme Court.  The United Kingdom's Supreme Court opened for its first session yesterday and has already handed down it's first decision, in the JSF (or Jewish Free School) case.  UKSC Blog reports on the decision as well as opening day at the Court.

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