Crime and Consequences Blog

Blog Scan

2010-03-12T21:51:07Z

Chelsea King Killer Violated Parole but Avoided Prison: At Sentencing Law and Policy, Doug Berman posts a link to a Los Angeles Times article describing how the man accused of killing Chelsea King violated his parole, but avoided being sent back to jail. In his article, Richard Marosi explains that John Albert Gardner III violated parole in 2007 by living close to a school, but was not sent back to prison because he complied with relocation orders. The California Department of Corrections and Rehabilitation released a statement yesterday explaining that while Gardner had several minor potential parole violations, the violation of the residency rule could have led to a hearing process with parole officials. Todd Spitzer, a prosecutor, said the department has eased up on parole violators because of prison constraints. "They were ignoring public safety with one goal in mind: They were trying to solve the prison overcrowding."

Notable Criminal Petitions to Watch: On SCOTUSblog, Erin Miller has posted its Petitions to Watch for the Supreme Court's March 19 Conference. Miller provides links to seven cases that Tom Goldstein has deemed to have a reasonable chance of being granted, and three of them address areas of criminal law. Moran v. United States (09-392) asks the Court to decide whether a Federal Rule of Criminal Procedure, which permits a defendant to comment on "matters relating to an appropriate sentence," entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; Kentucky v. Cardine and Curry (09-419) addresses whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury; and Beard v. Thomas (09-527), an AEDPA capital case, asks whether Thomas was prejudiced by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed and he refused to allow any mitigation evidence.

Some Comments on Justice Thomas's Silence: February 22, 2006, marked the last time Thomas asked a question during oral argument, and on February 22, 2010, Tony Mauro wrote an article on those criticizing Justice Thomas's silence. Yesterday, Linda Greenhouse joined their ranks with her opinion piece on New York Times' Opinionator blog. Mauro's post discusses a recent Florida Law Review article, Why Justice Thomas Should Speak at Oral Argument, by David Karp, that argues "[b]y removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court." Mauro goes on to explain that Justice Thomas may remain silent out of respect for the advocates, and to give them a chance to talk. Steffen Johnson of Winston & Strawn in Washington, an advocate who appeared before the Court in Holmes v. South Carolina, said Justice Thomas' style "reflects humility on his part."

The DOJ Eight

2010-03-12T20:59:00Z

Recently I discussed the revelation that DOJ has brought on board seven lawyers who previously represented accused members of al Qaeda.

I was in error. It wasn't seven. It was eight. The eighth has a really nice office, in that he is the Attorney General.

It has now come out that Eric Holder worked on an amicus brief in the Padilla case. As Powerline reports,

The Justice Department has admitted that Eric Holder failed to tell Congress during his confirmation process that he had contributed to a legal brief which argued that the President lacks authority to hold Jose Padilla, a U.S citizen declared an "enemy combatant," indefinitely without charge. The Justice Department has also acknowledged what is obvious -- that "the brief should have been disclosed as part of the confirmation process."

DOJ contends that the failure to disclose was not intentional. It says that "In preparing thousands of pages for submission, it was unfortunately and inadvertently missed."

Hello??

]]> As Paul Mirengfoff has observed, a number of senators, and others, will view the inadvertence claim with skepticism. The Padilla case was, after all, an extremely high profile matter. Moreover, as Andy McCarthy notes, Holder wrote a letter to Senator McConnell a few months ago discussing the Padilla case at length, making points that seemed to be borrowed from the brief he worked on. This should have reminded Holder of his involvement with that brief and should have prompted him to correct his erroneous statement during his confirmation.

Senator Sessions has already expressed "deep[] concern" over what in a cynical world might be looked upon as a cover-up. Certainly Senator John Kyl is skeptical of Holder's claim that forgetfulness explains his failure to inform the Senate of his role in the Padilla brief. Kyl asks: "Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country's most publicized terrorism cases?"

To be fair, I worked on briefs in important cases, and I would have a hard time recalling all of them, much less what I said in all of them. On the other hand, seldom if ever did I work on a case as notorious as Padilla, and no one nominated me to be Attorney General.

Blog Scan

2010-03-11T22:03:00Z

Revised Supreme Court Rules: Yesterday, SCOTUSblog writer Adam Schlossman reported that on February 16, 2010, the Supreme Court enacted its revised Rules of the Supreme Court. The updated rules reduce the number of words allowed in a merits reply brief from 7,500 to 6,000, and change Rules 26 and 34.1 to clarify what must be included on the cover of the Joint Appendix. The new rules also require the counsel of record to include an e-mail address on the cover of every document filed. The Court also made changes to Rule 37, clarifying that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. Other minor changes can be found in the Court's official memorandum.

A Study on "Last Words": In June 2009, Justice Quarterly published Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber, an empirical article statistically examining what an inmate says right before he is executed. The study, conducted by Stephen K. Rice, Danielle Dirks and Julie J. Exline, examined inmates' final statements for the period between December 1982 and early June 2005. The authors found that before January 12, 1996, 36% of the last statements admitted responsibility and 32% expressed sorrow or sought forgiveness from the victim's family. Only 10% of the last statements were coded as criticizing the legitimacy of the death penalty. On January 12, 1996, Texas began allowing family and friends of homicide victims to attend executions. After that date, 43% of inmates admitted guilt during their last statements 41% expressed repentance and a desire for forgiveness. (h/t Ian Ayers' post on New York Times' Freakonomics Blog)

House Impeaches Federal Judge Porteous: At Wall Street Journal's Law Blog, Ashby Jones reports that the House of Representatives has unanimously voted to impeach New Orleans federal judge Thomas Porteous. Porteous had been accused of of soliciting money from lawyers who appeared before him. According to a Times-Picayune article by Bruce Alpert, Porteous is the 15th judge found to have committed "high crimes and misdemeanors," the Constitution's criteria for impeachment. Representative Adam Schiff (D-Calif.) stated, "Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years." On Volokh Conspiracy, Eugene Volokh posted the articles of impeachment.

Data From the Sentencing Commissions Quarterly Update: At Sentencing Law and Policy, Doug Berman sees a "slow migration away from guidelines" in the U.S. Sentencing Commissions 2009 Final FY09 Quarterly Update. Berman reports that in FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases. In 2% of all the cases, judges ordered an above-guideline sentence and initiated a below-guideline sentence in nearly 16% of all cases. The Sentencing Commissions data from FY 2008 wasn't too different. In 2008, prosecutors sponsored a below-range sentence in approximately 25% of its cases and judges initiated a below-range sentence 13.4% of the time.

News Scan

2010-03-11T17:51:18Z

Body-Armor For Felons?: San Francisco Gate writer Bob Egelko reports on the California Attorney General's appeal to at the California Supreme Court to examine a ruling throwing out a state law that bans anyone who has been convicted of a violent felony from owning body-armor. The law, passed in 1998, was intended to protect police against flak-jacketed criminals. The law makes it a crime, punishable by up to three years in prison, for felons with violent offenses on their record to possess or wear body armor. State regulations define body armor as apparel that provides "ballistic resistance to the penetration of the test ammunition" for certain types of guns, a standard also used to certify armor for police. In December 2009, a state appeals court in Los Angeles ruled that the law was unconstitutional because its terms were so vague that the average person wouldn't know when he or she was violating it. "Allowing criminals and gang members to arm themselves with body armor makes no sense, and I'm confident the [California] Supreme Court will reverse this wrong-headed decision," Attorney General Jerry Brown said Wednesday. No hearing date has been set for the case.

White Supremacist Blogger Receives Second Mistrial: New York Law Journal writer Mark Fass reports on the second mistrial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges. Turner was arrested last June after posting blog entries stating that the three federal judges "deserve to be killed" for their decision upholding handgun bans in Chicago and Oak Park, Illinois. At the end of their deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless. This was the third time they had stated that they believed a unanimous verdict was impossible. The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case. Following the first mistrial in January, in which the threatened judges, Judges Richard Posner, William Bauer and Frank Easterbrook, did not appear as witnesses, a juror told the reporters the jury deadlocked due to a lack of testimony. This time, all three judges flew to New York and took the witness stand. Out Blog Scan reported on Judge Easterbrook's testimony and can be found here. After this second mistrial, an attorney for Turner called the case a "victory." Another article on the story by the Associated Press can be found here.

Death Penalty Legislation

2010-03-11T16:34:48Z

What a difference a year makes. There are three news stories about death penalty legislation in my Google Alerts email this morning, and all three are about state legislatures considering expanding their death penalty laws. They are noted after the jump.

So what's going on here? Has public opinion on the death penalty shifted dramatically from last year, when repeals and contractions were on the table, to this year, when expansion is on the table in multiple states? No. Polls consistently report that support has been steady. The difference is that political tides have changed for unrelated reasons, producing a shift in which legislators feel confident of reelection and which feel uneasy.

]]> reports for the Concord Monitor, "The [New Hampshire] Senate yesterday voted 14-10 to ask a death penalty commission to look at applying capital punishment to murders that take place during home invasions."

Julie Bykowicz reports in the Baltimore Sun that lawmakers are considering amending last year's "hastily crafted compromise plan" to expand the kinds of cases that can be capital in Maryland.

The AP reports from Richmond that "Virginia lawmakers have approved bills that will expand the death penalty...."

Blog Scan

2010-03-10T21:53:57Z

An Umpire Strikes Back: Yesterday's Above the Law "Quote of the Day," featured Chief Justice Roberts, and his remarks revisiting the exchange between President Obama and Justice Alito during the State of the Union address. According to an Los Angeles Times article by David Savage, Chief Justice Roberts told University of Alabama law students that he found it "very troubling" to be surrounded by loudly cheering critics at President Obama's State of the Union address. During the program's Q&A, the Chief Justice was asked about the incident, he stated that the criticism didn't bother him, "[a]nybody can criticize the Supreme Court. . . . I have no problem with that." He objected to the criticism in such a public setting. The Chief Justice also commented on the politics surrounding the State of the Union, saying "[t]o the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there." At Volokh Conspiracy, Eugene Volokh comments that if the Justices don't want to attend, "the Congress Provision of the State of the Union Clause should serve as an adequate excuse." At Crossroads, Jan Crawford comments on White House Press Secretary Robert Gibbs' response to the Chief Justices remarks. She writes, "[f]or the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court."

Another Hearing on Texas's Death Penalty: Doug Berman posts on Sentencing Law and Policy that Texas District Court Judge Fine is "reconsidering [his] declaration that state's death penalty is unconstitutional." An AP piece by Juan A. Lozano reported that Judge Fine took back his controversial ruling yesterday, and has scheduled a hearing for next month to hear evidence on the issue. Judge Fine has stated that he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person. He has asked Harris County defense attorneys and prosecutors to submit motions on the due process issue by April 12. An evidentiary hearing is scheduled for April 27, when testimony on whether innocent people have been executed in Texas is set to be presented. At Homicide Survivors, Dudley Sharp provides his thoughts on Judge Fine's decision.

More on Criticizing Lawyers Who Represent Detainees: At Volokh Conspiracy, Orin Kerr responds to Andrew McCarthy's comments on pro bono lawyers for Guantanamo detainees. Kerr does not agree with McCarthy's assertion that lawyers "assist[ed] the enemy . . . against the American people during wartime." His post explains why. Kerr's post addresses McCarthy's claims that "only criminal defendants" have a right to counsel, and discusses McCarthy's comments on the Boston Massacre. At Wall Street Journal's Law Blog, Ashby Jones rounds up coverage on the fallout from criticisms like McCarthy's. He focuses on editorials and articles written about the Keep America Safe video released last week.

"Mistaken Defenses to Goodwin Liu": On NRO's Bench Memos, Ed Whalen is "pleased to report" criticisms of his blog posts on the nomination of Goodwin Liu are "ill-founded."

The DOJ Seven

2010-03-10T19:18:47Z

Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions: Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism. Initially, it is my understanding, the Department refused, but since has provided seven names. Keep America Safe now designates these as "the al Qaeda Seven." For the reasons that follow, I think that designation is unfair on the present record -- but that doesn't mean raising the issue was unfair.

]]> In the Wall Street Journal op-ed to which Kent refers, former Attorney General Michael Mukasey, a man of uncommon decency and honor, says this:

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility--whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior.

My friend Paul Mirengoff on Powerline observes:

The Keep America Safe ad provided a service by pressing the administration to identify the DOJ lawyers who performed legal services for those detained as terrorists. Doing so served the objective, endorsed by Mukasey, of assuring that government lawyers don't bring to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility.

But the ad went too far because, by calling the DOJ lawyers "the al Qaeda Seven" (among other statements), it automatically identifed the attorneys with their former clients and suggested that the attorneys can be regarded as a fifth column for al Qaeda within the Justice Department.

I agree with that, but I don't view it as the end of the story. Prosecutors, like other professionals, are more likely to do a good job when they enthusiastically believe in what they're doing. Lawyers who have defended al Qaeda members and supporters inevitably have filed, and signed their names to, briefs that claimed, falsely yet indignantly, that the system is rigged to convict people who are merely "in dissent." Personally, I would not write or sign a brief containing what I thought were false assertions, and the notion that al Qaeda is merely "in dissent" is as false as they come. The real test for professional ethics, in my view, is not how much you can get away with under the rules. The test is whether you would be proud to tell your children about what you did that day.

So there are two possibilities. The first is that the DOJ Seven actually, personally believed what they were writing, in which case they shouldn't be anywhere near DOJ (one Van Jones per administration is enough). But that possibility has not been proved, and cannot be accepted unless it is. The second is that they didn't believe it, in which case they are engaged in a moral disconnect which is accepted by standard canons of ethics, but which I view as somewhere between schizophrenic and less than fully straightforward.

Adults cannot just blandly walk away from responsibility for what they spend their waking hours seeking. This is so even if they are only seeking it in a representative capacity. The canons properly insulate you, as the attorney, from blame for what your client does, wants and believes. Whether they insulate you, as a human being, from the result you strive to bring about, is a different question.

Locking Guns in Massachusetts

2010-03-10T18:55:07Z

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Judicial Intemperance

2010-03-10T17:45:05Z

Judson Berger reports on FOXNews.com,

The Senate Judiciary Committee has postponed the hearing for a controversial Court of Appeals nominee after the panel received a letter from a home-state prosecutor blasting the candidate as a judicial loose cannon and after Republicans raised concerns about bias in favor of sex offenders.

U.S. District Court Judge Robert Chatigny gained notoriety in 2005 for his role in trying to fight the execution of convicted serial killer and rapist Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism."

When it comes to the goals of representation, the rules are quite clear: the client is in charge. See, e.g., ABA Model Rule of Professional Conduct 1.2. Michael Ross was a "volunteer" who decided to waive his appeals and receive his punishment. His lawyer's duty was to achieve the client's goal. Whenever someone "volunteers," the anti side generally runs in and claims he must be crazy, using a variation of the original Catch-22. But in fact waiving appeals can be a rational choice. It was in Ross's case, and the lawyer did the right thing. Judge Chatigny nonetheless threatened the lawyer with loss of his license in an appalling display of judicial intemperance. From the story:

"I've never seen conduct like this," said a Republican source. "I'm shocked that the White House vetted this guy ... and still put him up for a judgeship."

Also appalling is Judge Chatigny's assertion that sadism is "clearly mitigating" in a capital case. Not everything that has a code in the DSM is mitigating. Antisocial personality disorder is a code for behavior that is aggravating. Describing a sadistic rapist and murderer as a "victim" indicates a seriously skewed view of criminality. Sadism is defined by urges, not by an inability to resist them. A person who has an urge to do things the rest of us would not want to do is nonetheless fully responsible for his voluntary choice to act on them.

News Scan

2010-03-10T17:42:57Z

"The American Tradition of Zealous Representation of Unpopular Clients": John Schwartz of The New Times reports on the criticism certain Justice Department lawyers have faced over their loyalty. The lawyers once represented detained terrorist suspects, and an advocacy organization in Washington has used this to question the lawyers' patriotism. Attacks on these lawyers have drawn commentary from conservative legal scholars who believe that questioning the lawyers' loyalty violates the American legal principle that even unpopular defendants deserve a lawyer. Benjamin Wittes, a senior fellow at the Brookings Institution, issued a joint letter signed by former Republican administration officials and other conservative figures, criticizing attacks, claiming they were "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications." Richard A Epstein, a law professor, finds it "appalling" that people equate working on detainee cases with a lack of patriotism. David M. McIntosh, a former member of Congress and a founder of the Federalist Society, thinks sometimes it might be legitimate to examine the agenda of a lawyer. "Was the person acting merely as an attorney doing their best to represent a client's case," he asked, "or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?" If the commitment to the case is ideological, he said, it is reasonable to ask, "Is that the best attorney for the Justice Department?" Kent also linked to Michael Mukasey's Wall Street Journal article on DoJ criticism today.

Shoddy and Dangerous

2010-03-10T16:34:33Z

Former AG Mukasey is getting pretty close to being a regular columnist at the WSJ. Maybe he should be. In today's piece, he notes parallels between the attacks on John Yoo and Jay Bybee and the attacks on current DoJ lawyers who represented Guantanamo detainees. "This is all of a piece, and what it is a piece of is something both shoddy and dangerous."

Third Time the Charm?

2010-03-10T00:51:52Z

A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.

The State of the State of the Union

2010-03-10T00:46:09Z

Jay Reeves reports for AP:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."

]]>

Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case.

Responding to a University of Alabama law student's question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.

"So I have no problems with that," he said. "On the other hand, there is the issue of the setting, the circumstances and the decorum.

"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according the requirements of protocol - has to sit there expressionless, I think is very troubling."

Hat tip: Orin Kerr.

McAdams on Death Row Innocence Claims

2010-03-09T22:23:41Z

While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.
]]>
Mr. MCADAMS: There are an easy dozen issues surrounding this and I am going to limit myself to only one. I am used to talking 50 minutes at a time and now I have seven. I am going to address the whole issue of ''innocents'' on death row and innocents who claim to have been executed.

The key thing to remember about the anti-death penalty activists is that they vastly inflate the number of innocents who have ever been on death row and they make claims of innocents being executed that simply don't survive scrutiny. The sort of canonical list of innocents supposedly put on death row is from the Death Penalty Information Center. When I checked the website Sunday, it listed 122 people, which sounds appallingly large, but if you analyze it even superficially, you find that it is terribly inflated.

For example, back in 2001, I analyzed the list when it had 95 people on it and by the admission of the Death Penalty Information Center, 35 inmates got off on procedural grounds and another 14 got off because a higher court believed the evidence against them was insufficient. Of course, if the higher court was right, there is an excellent reason to release them, but it is not proof of innocence.

The State of Florida in 2002 noted that there were 24 people on the list from Florida who were supposedly innocents on death row and they appointed the Florida Commission on Capital Crimes that concluded that only four of those 24 cases--in only four of those 24 cases was the factual guilt of the inmate in doubt.

Other examinations have been no more favorable. For example, a liberal Federal district court in a case called Quinones in New York ruled the death penalty unconstitutional, but if you look at that particular case, the court admitted that the Death Penalty Information Center list ''may be over-inclusive,'' and following its own analysis asserted that for 32 people on the list, there was evidence of factual innocence, as opposed to procedural innocence, and Ward A. Campbell, supervising Deputy Attorney General of the State of California, reviewed the list when it had 102 people on it and he concluded that, I am quoting, ''it is arguable that at least 68 of the 102 defendants on the list should not be on the list at all. Only 34 released defendants have claims of actual innocence, less than one-half of 1 percent of the 6,930 defendants sentenced to death between 1973 and 2000.''

Indeed, staffers of this Committee--it was the minority staff at the time--produced a report on, at that time, I think it was 2002, S. 486, where they did a thorough job of debunking a lot of these claims of actual innocence.

So believing the claims of the anti-death penalty activists about the number of innocents on death row is roughly equivalent to believing the National Rifle Association about how many Americans have saved themselves from serious bodily harm because they own and carry guns, or the claims of NARAL about how many backalley abortions would result from overturning Roe v. Wade. Activists tend to inflate the evidence and make it serve their purposes.

Another question is, have any innocents been executed? Have any innocents at all been executed? And indeed, anti-death penalty proponents make that claim. Back in the 1980s, a volume by Hugo Adam Bedau and Michael Radelet claimed 23 innocent people executed in the U.S. in the 20th century. They only named one person since the 1970's that they claimed was innocent and had been executed, and their claims--the fellow was named James Adams--their claims about that person were debunked in a Stanford Law Review article that took Bedau and Radelet to task for, quote, ''disregard for evidence'' and putting a spin on the evidence to support their thesis of Adams' innocence.

Interestingly, if you look at the more sensible death penalty opponents, they won't make strong claims. Let us consider a guy named Barry Scheck, who is co-founder of the Innocence Project. He was in 1998 interviewed by Matt Lauer on the ''Today Show'' and Lauer asked him a very leading question. Quote, ''Since 1976, 486 people have been executed in this country. Any doubt in your mind that we put innocent people to death?'' Scheck responded, ''Well, you know, I--I think that we must have put to death innocent people, but if you are saying to me to prove it right now, I can't.''

Now, there are still claims of innocent people being put to death. We heard from Senator Feingold. I would urge everyone to look at the Death Penalty Information Center website, where there is still--if it hasn't been sanitized as of yet--there is still an essay making claims of innocence from Roger Keith Coleman. And if you just read the essay on the Death Penalty Information Center website, you will come away absolutely convinced that Coleman must be innocent. But Coleman was the guy, you remember, very recently who actually had DNA testing and it proved him guilty. So I would urge everyone to please read that blurb on the Death Penalty Information website, then look at what the DNA evidence found, and I think you will get an idea that if you just believe what death penalty opponents say, you may be misled.

On a personal note, I actually teach a course on the Kennedy assassination and a lot of these claims of innocence remind me of what some conspiracy theorists say to try to get their boy Lee Harvey Oswald off the hook.

Now, death penalty opponents will say that if any who is innocent has been put on death row, that is unacceptable, or certainly if anyone has been executed who is innocent, that is unacceptable. They don't seem to pay a lot of attention to the fact that, quite clearly, a very large number of innocents have been imprisoned. I refer people to the work of the Innocents Project that has found--it has let off at the moment 174 people exonerated on the basis of hard DNA evidence and they admit that they have a huge backlog of other people.

Then there is the question of what the reasonable standard is. Is it reasonable to believe that a sanction of this kind or any public policy can be perfect? We can never fight even a just war without having some innocent casualties. The FDA can never approve a drug without some people dying of a rare and arcane reaction. Standards of perfection simply can't apply to any public policy, and it is unreasonable for death penalty opponents to try to impose it on the death penalty when they wouldn't think of doing so on any other punishment.

Blog Scan

2010-03-09T21:59:42Z

Constitutional Right to Informational Privacy: Today's News Scan linked to Bob Egelko's report on the Supreme Court's grant of certiorari in NASA v. Nelson. Yesterday, Eugene Volokh posted his thoughts on the case, comparing the background checks conducted by NASA to criminal investigations by police. Volokh explains that in NASA the Ninth Circuit concluded it was unconstitutional for the government to ask people who knew NASA employees broad questions. Questioning "references, employers, and landlords" presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe. Volokh believes the ruling's implications are "stunningly broad." He writes that the Ninth Circuit's suggestion, that the right to privacy is violated when an officer asks broad questions, will limit an officer's ability to ask people broad questions about what they know of a potential suspect.

Debunking The Belief That "We Execute Innocent People": At Homicide Survivors Dudley Sharp posts on Texas District Court Judge Fine's decision to clarify his ruling regarding the death penalty in Texas. Sharp finds Judge Fine's clarification that his ruling was " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people . . . ," curious when "(1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process." Last Friday's Blog Scan reported on the ruling, and Kent's comments are available here.

Abandoning the Exclusionary Rule: At CrimProf Blog, Kevin Cole links to Todd E. Pettys' SSRN article, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule. Pettys' argument is that allowing the exclusionary rule in cases involving juries infringes upon jurors' deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court's deterrence objectives. He believes it might be time to abandon the exclusionary rule, and suggests that the Supreme Court might already be willing to abandon the rule, depending on whether Congress enacts laws that will strengthen the threat of financial liability for Fourth Amendment violations. Two Volokh Conspiracy bloggers also have posts on the exclusionary rule. Orin Kerr continues his discussion of whether Herring v. United States establishes a good faith exception to the exclusionary rule, this time distinguishing Illinois v. Krull, a case where the police relied on a statute which had not been held unconstitutional at the time of the search. Eugene Volokh discusses Texas's statutory exclusionary rule, applied in Wilson v. State. He is surprised Texas has a statutory exclusionary rule.