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Bait, Switch, and Do-Over on Competency for Execution

The U.S. Supreme Court today decided Madison v. Alabama, No. 17-7505, confirming that the state was right on the question that everyone thought the case was about -- whether inability to remember the crime alone exempted a murderer from execution. No, it does not.

Of course, a variety of disorders can cause memory loss. So-called "alcoholic blackout," for example, can prevent the transfer of a memory from volatile current memory to long-term storage, like pulling the plug on on your computer before you save a document to the hard drive. Despite inability the remember, the person will have full mental faculties once he sobers up, and he can understand what he did and why he is being punished for it. In Madison's case, though, the underlying cause is vascular dementia, a broader disorder.

Competency for execution cases have mostly involved psychotic disorders, but the underlying rule is not limited to them. Ford v. Wainwright and Panetti v. Quarterman establish a broader rule that a disorder that prevents rational understanding precludes execution. Because the brief ruling of the state court leaves a majority of the U.S. Supreme Court court in doubt whether it applied the right standard, they send the case back.

The decision is 5-3 with Justice Kavanaugh not participating.  Justice Alito, joined by Justices Thomas and Gorsuch, dissents from the majority's indulgence of Madison's bait-and-switch:
What the Court has done in this case makes a mockery of our Rules.

Petitioner's counsel convinced the Court to stay his client's execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.

After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong,and he switched to an entirely different argument, namely, that the state court had rejected petitioner's claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. See Brief for Petitioner 16.

This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition--not even a hint. Nor is this question fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question.

The fact that one is representing a death row inmate -- even one who is guilty beyond question -- is a license to get away with anything.


The bottom line is that, of all litigants, the litigant that least deserves the succor of the courts (particularly federal courts, given comity concerns) is an obviously guilty capital murderer. Yet the highest Court in the land does so.

It's garbage, and it's worthy of utter ridicule. The millions of people of Alabama deserved better.

Do you find this site accurate?

Hold the Revolution: Roberts Keeps Joining High Court Liberals
By Greg Stohr | Bloomberg | March 1, 2019

From 2005 through the end of the 2016-17 term, Roberts had provided the 5th vote for a liberal outcome in a case argued before the court only 4 times, according to Adam Feldman, creator of empiricalscotus.com, which tracks Supr. Court trends.

The biggest was Roberts’s 2012 vote to uphold the Affordable Care Act, a
decision that embittered conservatives who had supported his nomination.

Roberts has done that 3 times in the 1.5 years since that 12-year period. That doesn’t include the other ruling Wednesday [so, 4x] , when Kavanaugh joined Roberts and the liberals in siding with a criminal defendant who said his
lawyer ignored his requests to file an appeal.

.... [earlier in article] ....
Chief Justice John Roberts is showing a new willingness to side with the U.S. Supreme Court’s liberal wing after the divisive confirmation fight over Justice
Brett Kavanaugh.

Roberts joined the liberals Wednesday in two rulings that left the conservatives in dissent. Most notably, he cast the deciding vote to order a new look at the mental competence of a death row inmate who says he can’t remember the crimes he committed. ...
The chief justice has also joined 5-4 orders that blocked President Donald Trump from curbing bids for asylum at the Mexican border and stopped Louisiana from enforcing new abortion restrictions.

Feldman's numbers are accurate as far as I know. Interpretations of what the numbers imply vary.

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