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Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.

I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about  Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.
Although there are numerous other fatal flaws to Donohue's work, my biggest concern is that  the case for which the study was created is still being litigated. Presently, it is on appeal to the Connecticut Supreme Court and might well wend its way to United States Supreme Court. Does this mean that Justice Breyer has pre-judged the validity of Donohue's methods and conclusions?  Because he relies on Donohue's study, that would not be an unreasonable perception. I wonder if anyone, during the drafting and editing process,  pointed out to Justice Breyer that he was creating just such a perception.

That Justice Breyer did not recognize the myriad flaws in Donohue's work identified by Judge Sferrazza (including the court's observation that, "Of course there a danger that the analyst's subjective beliefs will dissuade the investigator from following the path toward which the statistical calculations point and lead to erroneous conclusions") and the state's expert is one thing, but to cite with approval a survey that is still in litigation is something I think the Court would want to avoid.

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Breyer's dissent in SEIU v. Knox confirms he's not too bright. And now we've confirmed he's sloppy.

At the end of the date, he's a vote. It doesn't matter.

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