Recently in Death Penalty Category

The California Supreme Court yesterday issued a pair of companion cases addressing state habeas claims by death row inmates.  Despite the state's argument to the contrary, the court reaffirmed its practice of accepting "shell petitions" in order to toll the statute of limitations for federal habeas petitions.  

In both cases, the inmates were sentenced to death and shortly thereafter requested habeas counsel, for which there is a statutory right in California.  In both cases, the court's appointment of counsel took a significant amount of time - in one case (In re Jimenez), it took the court eight and a half years for the court to appoint counsel, and in the other (In re Morgan) the court still had "not found qualified counsel willing to accept the appointment" after 13 years.  The court stated that these delays are common because "[q]uite few in number are the attorneys who meet this court's standards for representation and are willing to represent capital inmates in habeas corpus proceedings."  (The court's standards are listed in a footnote on page 6 of the In re Morgan opinion.)  Until the court finds suitable counsel, the court reaffirmed that the inmate may file a cursory "shell petition" to preserve his right to seek later relief in the federal courts.  The court also upheld its practice of, upon appointment of counsel, allowing the counsel to amend the habeas petition for up to 36 months.

Justice Corrigan wrote separately against the practice, noting that the practice of allowing shell petitions only burdens the court and the public by permitting capital inmates to "languish without representation for several years."  Justice Corrigan also stated that while the court is charged with the obligation to provide habeas counsel to these inmates, it "is not, however, [the court's] proper role to help one class of convicted inmates evade a federal statute of limitations."

Well get used to it.  Those who enthusiastically support the death penalty and other forms of serious punishment for serious crime are just the latter-day Klan, according to one sort of thnking  -- the sort briliantly described in the "oikophobia" essay to which Kent made reference earlier today.

It's well worth the read, as is this column by Charles Krauthammer.  Krauthammer's piece is titled, "The Last Refuge of a Liberal."  You will not be surprised to learn that the refuge is the reflexive but still snarling charge of racism.

Krauthammer does not discuss the culture war about the death penalty, but he might as well have.  To abolitionists and a distressingly large number of other liberals, there is no such thing as principled or good faith support for capital punishment.  There is only the fact that blacks make up a much larger share of death row than they do of the population, and that suffices to show that, if you support the "barbarism" of capital punishment (as do two-thirds of the American people), you are a racist (as they are).

The fact that the great bulk of recent scholarship shows that the death penalty saves innocent lives by its deterrent effect (abstracts collected here), or that for some especially gruesome murders a mere prison term could not possibly be thought of as justice by a normal person  --  these things don't count.

As I said last week, abolitionism and the go-easy approach to crime in general can no longer be thought of as "arguments" as traditionally understood.  They have become a Test of Righteousness and a cult religion, and have a cult religion's certainty and venom. 

George Smithey murdered Cheryl Nesler in 1988. He was sentenced to death the next year. The California Supreme Court unanimously upheld his conviction and sentence on appeal in 1999, 20 Cal.4th 936.  Last week, "a Calaveras County Superior Court judge last week vacated Smithey's death sentence and resentenced him to life in prison without parole," AP reports.

Before the resentencing paperwork arrived at the Big Q, Smithey hanged himself with bedsheets.

Q:  What country is the new Workers Paradise of the Western Hemisphere, embodying compassionate socialist values?

A:  Venezuela, courtesy of Hugo Chavez.

Q:  What country was proudly the first to abolish the death penalty?

A:  Venezuela (1863, in its Constitution).

Q:  What country has the highest murder rate for any large nation in the world?

A:  You got it  --  Venezuela.

I'm no fan of these international "studies" relentlessly tossed out to show that the United States has a murder rate higher than countries (mostly in Western Europe) without capital punishment.  But since they're all the rage with the DPIC and similar outfits, I thought I would join the fun by noting this story from the New York Times:  "Venezuela, More Deadly Than Iraq, Wonders Why."

Yes, why indeed.  You will not be surprised to hear that, among the numerous reasons the Times suggests, the absence of capital punishment nowhere appears.  Indeed the story omits this fact altogether.

This gem, however does appear, concerning the efforts of the National Police to "respect human rights."  The Times quotes a high police official remarking, "I'm not saying we'll be weak...but the idea is to use dialogue and dissuasion as methods of verbal control when approaching problems."  Gads, this guy must get his stuff from Amnesty International press releases.  I haven't heard as much mush since Eric Holder's last speech.

The whole thing, here  http://www.nytimes.com/2010/08/23/world/americas/23venez.html, is an eye-opener.  Bear it in mind the next time an abolitionist starts in on you with "the murder rate in the United States....." 

                                                                                                                             

 

Those of you who follow Doug Berman's entertaining Sentencing Law and Policy will see that a hue and cry is being raised about the Davis opinion.  This was to be expected.  As I have noted there:

The abolitionist refrain about Troy Davis's "innocence" is identical in its shrill, superior and indignant character to the same claim they made about Roger Keith Coleman. And it's identical in one other respect as well, to wit, it's identically false.

Let's face it. Troy Davis's "innocence" was, in the abolitionist eye, never going to be a product of evidence. The district court's opinion could have gone on for 1000 pages and it would have made no difference. Davis's "innocence" has become an urban myth of the abolitionist Left, much in the way that George Bush's "complicity" in arranging the 9-11 attacks has become a Leftist myth. Davis's innocence must be assumed, no matter what the balance of the evidence or the care taken to parse it, because that assumption is the necessary predicate to slam the United States as a rogue country that willy-nilly executes people for the fun of it, especially if they're black.

This mindset is related to, though not exactly the same as, the one that insists OJ didn't do it. OJ was acquitted (by the criminal jury, although not the civil one), so he's not an adjudicated murderer, no doubt about that.  But is he the guy who stuck in the knife? No serious person -- except those who're serious about hating the country -- thinks he wasn't.

Again, to a certain turn of mind, these episodes have long since stopped being cases and started being icons. They are the Religion of the Left. That's the reason debates with abolitionists go nowhere. You can argue facts, but you can't argue religion.

Bill Rankin reports in the Atlanta Journal-Constitution:

A federal judge on Tuesday emphatically rejected condemned inmate Troy Anthony Davis' claims that he was wrongly convicted of killing a Savannah Police officer in 1989.

In a 174-page order, U.S. District Judge William T. Moore Jr. said Davis had failed to prove his innocence during an extraordinary hearing this summer ordered by the U.S. Supreme Court.

"Ultimately, while Mr. Davis' new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," Moore wrote. "The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value."

*                                    *                               *

Moore did answer one question posed by the U.S. Supreme Court. He found that executing an innocent person would violate the Eighth Amendment's ban against cruel and unusual punishment.

"However, Mr. Davis is not innocent," Moore wrote.

For those who have been around the death penalty debate for a while, there is a sense of deja vu about all this. Eighteen years ago, the Supreme Court took up the case of Herrera v. Collins, 506 U.S. 390 to address the monumental question of whether a strong case of actual innocence was sufficient to block an execution, even though there was no claim that any violation of federal law or the Constitution occurred in the the trial. Once they got their hands on the case, though, the Supreme Court discovered an inconvenient truth: Herrera was guilty as sin. "Oh, never mind."

It seems that the single most popular way to argue against the death penalty today is to put the defendant's parents on trial. Usually, the target is someone who isn't around any more.  The only people with personal knowledge of what happened inside the family are the defendant's family, and they usually want to help him and not the prosecution, so there is pretty much a green light to exaggerate or just make things up. The most extreme example was the Menendez case, where the defendants themselves eliminated their parents as witnesses, so they could say anything they wanted. 

A federal death penalty case being tried in Michigan starts off standard but has a twist, according to this story by David Ashenfelter in the Detroit Free Press. In this case, the father is still around.

Defense lawyers in the Timothy O'Reilly federal death penalty case have portrayed his father as an ogre -- an uncaring, domineering brute who verbally abused his son and put him on a path that resulted in a fatal 2001 armored-car robbery in Dearborn.

But O'Reilly may not agree.

During a 20-minute phone call from the federal prison in Milan in January, O'Reilly told his father that defense attorneys were off base in pursuing the bad-parent defense.

"Who are they to tell you that?" O'Reilly, 37, told his 61-year-old father, Patrick O'Reilly, during a phone call monitored by prison staffers. "I mean, some stuff is irrelevant and it doesn't need to be in the courtroom anyway."

Later in the story, "Legal experts said the tape could hurt O'Reilly." What would we do without legal experts?

Anyhow, O'Reilly's statement that "some stuff is irrelevant" may go down in judicial history next to that of civilly committed sex offender Hendricks, quoted by the Supreme Court for the proposition that "treatment is bull____."

Some stuff is indeed irrelevant. The perpetrator knows more than the learned judges.  The sentence should be based on the circumstances of the crime and the perpetrator's criminal record or lack of one. Get rid of everything else, and capital litigation would be faster, cheaper, and fairer.

Why fairer?  Because the present "bad parent" defense depends more on the advocate's skill in weaving a sob story than on the actual, minimal weight of this mitigating evidence.

How many times have we been told that "prison will keep us as safe as the death penalty"?  The people who say this are well aware of (indeed they're obsessed with) the fact that the judicial system is fallible  --  but apparently oblivious to the fact that the penal system is also fallible.

Hence today's story of the capture and arrest of an escaped killer, from which I excerpt the following tidbits about prison security:

 

The prison has a badly defective alarm system, a perimeter post was unstaffed, an outside dormitory door had been propped open with a rock and the alarms went off so often that prison personnel often just ignored them, the report said. Also, operational practices often led to a gap of 15 minutes or longer during shift changes along the perimeter fence, Ryan said.

Prison staff told a review team that the dormitory door was left open because of the heavy amount of foot traffic. That open door allowed the three inmates to reach a 10-foot chain-linked fence that hadn't been topped with razor wire. They scaled that fence and hid out for a time behind a building in an area that isn't visible to staff from the yard.

 

While on the lam, the convict and an accomplice apparently killed two other people, Gary and Linda Haas of Tecumseh, Okla.

How easy it is for academics and defense lawyers to talk about the supposed safety of incarcerating killers when they full well know that it will be other people who wind up paying the price for their deceit.

 

Tonight, Texas is scheduled to finally carry out justice in the case of the ringleader of one of the state's most notorious crimes. In 1993, two teenage girls, Jennifer Ertman and Elizabeth Pena, took a shortcut home and ran in to a violent street gang led by Peter Cantu. The facts are described in CJLF's brief in the first Medellin case in the Supreme Court here.  The victims' memorial web page is here.  CJLF filed two more briefs in Medellin's case: this one in the Texas Court of Criminal Appeals and this one in the U.S. Supreme Court in its second review of the case. In the last brief, we were pleased to represent Randy and Sandra Ertman as well.

Michael Graczyk of AP has this story on the case and Mr. Ertman.  He has previously attended the executions of Medellin and Derrick O'Brien, and he will be there tonight for Cantu's. Two other perpetrators escaped execution because they were 17 at the time of the crime. Some of Cantu's supporters claim it is unfair that he is executed while they were spared due to a small difference in age. That is an argument that Roper v. Simmons was wrongly decided and that it was unfair to let the others off from the punishment they so richly deserved; it is not a good argument we should let Cantu off as well. In any event, Cantu is distinguished by his leadership role in the crime as well as his age.

Update: Mission accomplished.

Don Thompson reports for AP:

Despite California's $19 billion budget deficit, Gov. Arnold Schwarzenegger's administration said Wednesday it will borrow nearly $65 million from the state's cash-strapped general fund to begin building a new 1,152-bed death row at San Quentin State Prison.

But of course we don't need a 1,152-bed death row. I took a sample of 50 cases out of the list of death row inmates, and only 6 had been there less than 6 years. If we properly processed the appeals, then, death row would be somewhere in the neighborhood of 1/8 of its present size, less than 100.

Assemblyman Jared Huffman, D-San Rafael, called it "stunningly hypocritical" that the governor is borrowing from the general fund at the same time he is attempting to furlough state employees three days each month to avoid a looming cash crisis....  He and Sen. Mark Leno, D-San Francisco, also criticized the projected cost overruns for a project that originally was expected to cost $220 million.

And what have you done, Messrs. Huffman & Leno, to get the needed reforms through the Legislature so we don't need the large death row?  Less than zero?

The Governor's record on capital punishment is mixed. I have no complaints about his Supreme Court appointments or his handling of clemency requests. When it comes to fixing the systemic problems, though, he has not shown the leadership that I expected when he stormed into office.

Doug Clark writes in the Greensboro, NC News-Record:

The misnamed Racial Justice Act has officially created a travesty, with 119 of North Carolina's 159 Death Row inmates filing discrimination claims. (Update, per Nancy's story Thursday: 135.)

Most of them might succeed. All they need is a little statistical manipulation to "prove" their claim.

Even white offenders, like Blanche Taylor Moore, have a case if their victims were white. As a recent study showed, murderers of white people are statistically three times more likely to receive the death penalty in North Carolina than are killers whose victims are of other races. Therefore, by the logic invested in the Racial Justice Act, Moore was sentenced under a racial disparity. She deserves to have her sentence commuted!

There might be an angle of this kind for everyone.

Reopening 119 old murder cases is going to gum up our already overloaded criminal-justice system -- which may have been the intent of the legislation approved last year by the legislature and signed -- with cheers -- by our governor. It will be easier just to move everyone off Death Row and give up future capital prosecutions.

When murderers can use state law to present themselves as victims of racial discrimination in virtually any case, capital punishment is over.

Ohio continues its roll as the only non-southern state with something approaching an effective death penalty. James Nash reports for the Columbus Dispatch:

A Warren man who admitted that he "flipped out" and murdered two former coworkers and tried to kill a third in 1991 was put to death this morning.

Roderick Davie, 38, was declared dead at 10:31 a.m. after receiving a lethal dose of thiopental sodium at the Southern Ohio Correctional Facility. There were no complications, prison officials said.

I say "approaching" because 19 years in a case with no doubt of identity of the perpetrator is way too long.  Virginia remains the leader in showing how capital cases can be properly reviewed in the 5-6 year time frame.

The Dispatch also has this page with a database of Ohio's death row.

Scott Greenfield at Simple Justice has this reaction to my earlier post on Justice Kagan.  Greenfield is so over the top it is rather amusing.  I will point out a couple of inaccurate implications, though.

Greenfield characterizes my post as "castigating Elena Kagan," but I did no such thing. I expressed a concern and a hope that the concern will prove unfounded. That is a long way from castigating.

Regarding my comparison of Justice Sotomayor's background, Greenfield says, "Suddenly, Justice Sotomayor is looking pretty good compared to the pointy-headed Kagan?  Who knew that she was going from zero to hero in the eyes of those who look for 'a positive force'."

Suddenly? "Hero" is hyperbole, of course, but the implication that I have recently and suddenly changed my view on Justice Sotomayor (i.e., better than I expected from this administration) is just wrong.  The fact (easily discovered if one bothers to check) is that I wrote a positive review of Sotomayor's habeas opinions while her nomination was pending. (I didn't do the same for Kagan for the simple and obvious reason that there aren't any to review. That is part of my concern.)

I apparently touched a nerve by using the word "evil." Good. I'll try to use it more often.

I won't respond to everything in the post, but there is one more line worth mentioning. Greenfield refers to the defense side as "those of us disinclined to believe that every defendant deserves the death penalty . . . ." Um, that description would also include me.  It would also include every prosecutor and every victims' advocate I know.

Scott Herhold has this column in the San Jose Mercury-News:

When Meg Whitman recently attacked Jerry Brown for his appointment of Rose Bird as California's chief justice 33 years ago, some pundits dismissed it as a tired story.

Politically, they're probably right. But even Brown loyalists have conceded that the Bird appointment was a huge blunder. It's one the judiciary is still paying for.

Nearly 11 years after her death from cancer, it's impossible to mention Bird without encountering arguments that she was a symbol in the drive for women's equality -- a brave fighter for justice who was hounded from office.

Yet she failed for reasons other than sexism. To serve her principles, she was intellectually dishonest and insensitive to politics, an ideologue who betrayed contempt for the judicial structure. And Brown was amply warned of her shortcomings.

Brown's legal affairs secretary, J. Anthony Kline, conceded in a 1991 oral history that "in retrospect, the appointment of Rose Bird as chief justice was probably the biggest mistake that Jerry Brown made as governor.''

In 64 out of 64 cases, Bird voted against the death penalty. No matter what you think of capital punishment -- and I'm against it -- it beggars belief to think each of those carefully litigated cases was unfounded.

David Savage reports in the LA Times:

Two of President Obama's choices for the federal bench in California have been dealt a setback, as the Senate adjourned for a month and sent back to the White House the nominations of UC Berkeley law professor Goodwin Liu and San Francisco Magistrate Edward M. Chen.

Liu and Chen face solid Republican opposition, and their chances of being confirmed now look to be in doubt.

This is very good news. As we have discussed before on this blog, Liu's paper attacking Samuel Alito on his death penalty record establishes that Liu would resolve virtually every debatable question in favor of the murderer.  He would be a bad appointment to any federal court, but to add him to the Ninth Circuit -- already the most hostile to justice of any federal court in the country -- would be a disaster.