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The Lackey Claim, Again

It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.
Here are the facts of the case from the decision of the California Supreme Court on direct appeal, People v. Jones, 29 Cal.4th 1229 (2003).

Shortly after midnight on August 25, 1992, in Los Angeles, Chester Miller returned home from work and noticed the family station wagon was missing from the driveway. Mr. Miller went into his house and found his wife, Julia, lying dead at the foot of their bed. Mrs. Miller's robe was open, her nightgown was bunched above her waist, and she was naked from the waist down. A telephone cord and a purse strap had been used to tie Mrs. Miller's arms over her head, and a nightgown had been used to loosely tie her ankles together. Mrs. Miller had been gagged with two rags, one in her mouth and another around her face. Two kitchen knives were sticking out of her neck. Pieces of three other knives were found on or around her body.  

*                                  *                                 *

The deputy medical examiner with the Los Angeles County Coroner's Office who performed the autopsy on Mrs. Miller's body concluded, on the basis of the following evidence, that she had been stabbed to death: Two knives were sticking out of Mrs. Miller's neck. She also had 14 stab wounds in her abdomen and one in her vagina, but the fatal stab wound, which penetrated to the spine, was the one in the middle of her chest. Aside from the stab wound, there was no evidence of trauma to the vaginal region.

At the crime scene, a criminalist with the Los Angeles County Coroner's Office took swabs of Mrs. Miller's vagina. Another criminalist found a great abundance of intact spermatozoa on the vaginal swab, leading him to conclude that ejaculation occurred no more than five to 10 hours before Mrs. Miller's death.  A blood sample was taken from defendant. A molecular biologist for Cellmark Diagnostics performed deoxyribonucleic acid (DNA) testing on the blood sample taken from defendant and on the vaginal swabs taken from Mrs. Miller. This testing yields banding patterns that are, with the exception of identical twins, unique to every individual. There is only one chance in 78 million that a random individual would have the same DNA banding pattern as defendant. The tests showed that the banding pattern in the DNA from defendant's blood sample matched the banding pattern of the semen on the vaginal swab taken from Mrs. Miller.
Between the horrific crime and the conclusive DNA identification, there is no reason to review this case multiple times.  There is no possibility of a miscarriage of justice here, and one full review is sufficient.  We should simply eliminate successive state habeas petitions and federal habeas review for any claim that does not go to actual innocence.  That would eliminate much of the delay.



What significance, if any, do see in the comments of Justices Breyer (page 45, lines 10-12) and Kennedy (page 46, lines 4-10 & page 47, lines 8-15) during the Hall v. Florida oral argument, as they relate to the merits of a future Lackey claim before the Court?


What, if anything, do you make of the fact that Judge Carney appears on paper to be a conservative jurist -- Appointed by W; Served on bench as a "stiff sentencer" in conservative Orange County; Former UCLA star football player; Conservative Midwest upbrining; Big name conservative law firm background; and HLS?

Do you think he might have a hint that California's own, Justice Kennedy, might be ready to kill the DP before he leaves the Court?

paul -- You're not doing any, uh, wishful thinking, are you?

Pretty easy--another federal judge with gavelitis who has disgraced his office.

No, Bill, not wishful thinking by any means.

The DP needs to be available to deal with the so-called "worst of the worst." (I have my definition of that term. And I am sure that you have one.)

I'm just trying to get a grasp on where this is heading. In particular, trying to figure out Kennedy -- not an easy task.

I believe that a deep understanding of his judicial philosophy, including his beliefs about the criminal justice system in general and capital punishment in particular, are critical if the DP is to be preserved for those truly atrocious cases where it is (in my opinion) warranted.

Therefore, when Kennedy makes statements like he did at the Hall oral argument I take particular note. And I was simply seeking Kent's expert opinion on whether I was reading too much into his statement that, on the surface, seemed to be leaning towards acceptance of the Lackey argument.

I found this interesting -

In Japan, the condemned is informed the morning of his execution that it is for lack of a better word "judgment day". To the extent, international practice matters (and the Supreme Court does seem to reference it from time to time), long delay and uncertainty seems to be common in any capital sentencing structure.


At its core, the "Lackey" argument does not make any sense. Even the remote chance of being executing at some point in the future, should have some deterrent effect. The effect might be less than it should be, but it still serves a valid criminal justice interest.

And delayed punishment is still punishment.

paul -- Kennedy voted with the Baze majority, and there is no record of his having voted in favor of cert for the Middleton case, in which an execution was undertaken just yesterday of a killer who had been on death row nearly as long as Jones.

Kennedy is no big fan of the death penalty, and has made pretty clear that he wants to see it narrowed, but he's too disciplined (although not by much) to overrule so much precedent. It is by now common for people to spend a decade or a decade and a half on death row. Since the country accepts this (in part to make sure we've got it right, and in part because it's been bamboozled by defense lawyers), Kennedy will as well.

In addition, I think there's a better than even chance that one of the liberals other than Breyer would reject an it's-been-too-long claim. If you look at Justice Kagan's confirmation hearing testimony, she would be the most likely candidate.

One more point regarding the insanity of all this - Anytime you are citing to the Supreme Court of Zimbabwe, the only real response has to be LOL. I guess it is alright to exterminate white people for the crime of being white, but inhumane to delay execution for an actual crime - at least in Zimbabwe apparently.

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