Given that, at the time the State Constitution was adopted, capital punishment was a sanctioned penalty for specified crimes and that the plain language of the constitution anticipates its use, the framers could not have considered capital punishment to be "cruel or unusual." We agree with the trial court that "[l]ooking at the language of the New Hampshire Constitution and the circumstances of its adoption, the framers undoubtedly anticipated that the death penalty would be imposed for many crimes."* * *As the trial court found, "[g]iven how frequently the death penalty has been debated, and how consistently the representative branches of government have upheld it, . . . capital punishment does not offend general community standards of decency in this State." We agree with the trial court that "[t]he legislative history of capital punishment in this State demonstrates that a consensus has not been reached that capital punishment is cruel or unusual." We presume the validity of "a punishment selected by a democratically elected legislature" and conclude that the defendant has not met the "heavy burden [that] rests on those who would attack the judgment of the representatives of the people." Deflorio, 128 N.H. at 316 (quotation omitted). Accordingly, we hold that the defendant has not established that the death penalty statute facially violates Part I, Article 18 or Part I, Article 33 of the State Constitution.
Recently in State Courts Category
The charges resulted from the so-called "Kids for Cash" scandal that erupted in Luzerne County, Pennsylvania in late 2008. Ciavarella and his fellow judge, Michael Conahan, were accused of receiving over $2.8 million in three years from a commercial builder, Robert Mericle, and an attorney and businessman, Robert Powell, in exchange for helping to construct and operate juvenile detention centers and placing juvenile offenders there.* * *Over the course of several years, Ciavarella committed hundreds of juveniles to detention centers co-owned by Powell, including many who were not represented by counsel, without informing the juveniles or their families of his conflict of interest.
Iran's election overseers removed potential wild-card candidates from the presidential race Tuesday, blocking a top aide of outgoing President Mahmoud Ahmadinejad and a former president who revived hopes of reformers.
Their exclusion from the June 14 presidential ballot gives establishment-friendly candidates a clear path to succeed Ahmadinejad.... It also pushes moderate and opposition voices further to the margins....
The candidate-vetting group is called the Guardian Council.
Many US States have a similarly undemocratic system for choosing judges. A commission, unaccountable to the people and typically dominated by the state bar either outright or as a practical matter, approves a short list of candidates. The person who actually is accountable to the people, the governor, gets the same kind of lesser of evils (but not by much) choice that the people of Iran will get for their president.
The selection commission serves the same function as the Guardian Council. It makes sure that the Great Unwashed, through the person they elected, do not choose any candidates of insufficient ideological purity. The Orwellian name for this system is "merit selection."
State Supreme Court Justice Patience Roggensack easily won a second term Tuesday, overcoming Marquette University law professor Ed Fallone.From the story, it doesn't appear that criminal law issues were much involved in the campaign. Well, unless you count the assault/self-defense dispute between two of the other justices.
With 93% of precincts reporting, Roggensack had 57% of the vote to Fallone's 43%.
Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar. This method is sometimes called the "Missouri plan." A common and grossly misleading name is "merit selection." The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations. The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists. So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.
Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot. Pennsylvania has had some bad experience with this lately. The editorial notes that three former governors are now pushing for the state to change from bad to worse.
Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.
Problems with the so-called Missouri Plan for judicial selection have become increasingly evident in the states that use it, prompting several to consider revising or abandoning it altogether. The next wave of changes may be coming in Kansas, where lawmakers are considering reforms to the way the state picks its judges.Every state with a nominating commission should get rid of it. Unless a state has contested elections (which I do not favor), the executive appointment power is really the only effective way to restrain the courts' natural tendencies to veer in the direction of judicial activism. Nominating commissions seem to always end up in the control of people who favor judicial activism, usually of the left-leaning variety.
Under Kansas's current version of the plan, to fill any vacancies on the Kansas Court of Appeals and the Kansas Supreme Court, the Governor must choose among a slate of candidates selected by a judicial nominating commission. The nine-member commission is made up of five members of the state bar association and four non-lawyers chosen by the governor, making it the only state which gives its bar association the power to choose a majority of the commission.
Nominating commissions have routinely pushed state courts to the left, and Kansas has been no exception. In a hearing in the state legislature this week, two of the commission members criticized the process. Commission member Felita Kahrs said that during her tenure, conservative judicial candidates were met with "disdain" by the commission and that discussions of them became "extremely heated and sometimes even hostile."
Along with action through the democratic process, Gov. Brownback also wants the U.S. Supreme Court to hold that his state's judicial selection process is unconstitutional under the "one-man-one-vote" cases. I am not in favor of that. The federal constitution leaves these kinds of structural decisions to the states and their people. The nominating commission should leave through the same door it entered.
Michigan Supreme Court Justice Diane Hathaway announced today she will retire from the bench Jan. 21 after the Judicial Tenure Commission filed a formal complaint calling for her immediate suspension from the bench for alleged "blatant and brazen violations" of judicial conduct rules the commission said were "unprecedented in Michigan judicial disciplinary history."
Among the charges in the complaint is that Hathaway submitted false answers to the Judicial Tenure Commission during its recent investigation of private real estate transactions by Hathaway which are the subject of an FBI investigation.
The complaint gives the most detailed account to date of alleged efforts by Hathaway and her husband, attorney Michael Kingsley, to misrepresent their net worth so they could qualify for a short sale on their home in Grosse Pointe Park.
California has a statute on DNA testing, Penal Code § 1405. The state court found Cooper did not qualify, finding among other things that the tests Cooper wants would not be any better than the ones already done. Instead of seeking review up the appellate chain, Cooper ran over to federal court and filed a civil rights suit under 42 U.S.C. §1983. Can you use a federal civil suit as a de facto appeal from a state court decision in this manner? No, the Ninth Circuit decided yesterday in Cooper v. Ramos, No. 11-57144.
The Rooker-Feldman doctrine instructs that federal district courts are without jurisdiction to hear direct appeals from the judgments of state courts. Congress, in 28 U.S.C. § 1257, vests the United States Supreme Court, not the lower federal courts, with appellate jurisdiction over state court judgments. Lance v. Dennis, 546 U.S. 459, 463 (2006) (per curiam). Accordingly, "[r]eview of such judgments may be had only in [the Supreme] Court." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine bars a district court from exercising jurisdiction not only over an action explicitly styled as a direct appeal, but also over the "de facto equivalent" of such an appeal. Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).
The opinion is by Judge McKeown, with Judges Gould and Tallman concurring.
Update: Richard DeAtley has this article in the San Bernardino Press-Enterprise.
There is a provision in the Violence Against Women Act reauthorization bill for certain crimes to be prosecuted in tribal courts. House Majority Leader Eric Cantor is against that. Jonathan Capehart at the WaPo has this over-the-top post contending that Cantor's position is "trying to protect white men from prosecution."
Basically, right now, if you are a non-Native American man who beats up, sexually assaults or even kills a Native American woman on tribal land, you'll get away with it. That's because tribal courts do not have jurisdiction to prosecute non-Indian defendants. In addition, federal and state law enforcement have limited resources and might be hours away from a reservation.That's a pretty far-fetched accusation. The statement about law enforcement is irrelevant, because the dispute is not about the investigation of the crime but the prosecution of it. It is not at all unusual for a crime to be investigated by law enforcement officers of one jurisdiction and prosecuted in the courts of another. It happens all the time in drug cases, for example, when local police bust the drug operation and the U.S. Attorney takes the prosecution to federal court.
Capehart cites the percentage of cases declined by federal prosecutors to support his claim that lack of tribal court jurisdiction means the perpetrator gets away with it. But the report he cites notes that the most common reasons for the declinations are weak evidence, "witness problems," no federal offense, or "suspect to be prosecuted by other authorities." The last category obviously does not mean he gets away with it, and the next-to-last often does not. The others mean reasonable doubt of guilt. Is Capehart suggesting we dispense with the reasonable doubt requirement?
If these cases are being insufficiently prosecuted, that is a problem that needs to be addressed. But Capehart has not made the case that the problem exists, and expanding jurisdiction of tribal courts to non-Indians is not necessarily the optimum answer. Capehart's hyperbolic attack on Cantor is unwarranted.
Used to be?
Not that we don't like Richard Sanders and Sheryl Gordon McCloud. Each is highly intelligent and devoted to the law. It comes down to the role of the judiciary. Either McCloud or Sanders would bring a settled ideological agenda to the cases that reach the high court.
Sanders is a doctrinaire libertarian. McCloud is what used to be called a flaming liberal. Passionate political beliefs keep the fires of democracy burning, but good court decisions aren't born in furnaces. Sanders and McCloud both appear likely to equate their personal philosophies with constitutional dictates.
This is a matter of degree and temperament. Every judge brings a personal approach to the law, but sometimes the law is bigger than the judge. We don't think Sanders gets this.
Unfortunately, we have precisely the same concerns about McCloud.
At the diagonally opposite corner of the contiguous 48 we see why selecting justices in regular election campaigns is a bad idea. Friends of justice will have to mark their ballots while holding their noses. See prior post.
Steve Miletich has this article in the Seattle Times. "In 2010, McCloud says, Sanders inflamed racial tensions when he said certain minority groups are disproportionally represented in prison because they commit more crimes."
It is true beyond dispute that the crime rate is higher among black Americans, particularly, than among whites, and that is the primary reason why the prison demographics differ from the general population. We can argue about the underlying reasons for this fact, but no rational person can dispute the fact. How ironic that Sanders' biggest problem comes from one of the more sensible things he has said.
That is quite true, and that is one of the reasons for the nose-holding. Based on what I have heard from Washington prosecutors, though, the chances of victims of crime and the law-abiding public getting objectivity and fairness from McCloud are roughly those of a snowball in Mount St. Helens during an eruption.
[Sanders] also stood up at a meeting of the Federalist Society in Washington, D.C., in 2008 and shouted "Tyrant! You are a tyrant!" at then-Attorney General Michael Mukasey after Mukasey defended the Bush administration's counterterrorism policies.
"Those are not examples of professionalism, they are not examples of objectivity, they are not examples of fairness," McCloud said.
In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this position will generally soon feel themselves independent of heaven itself.Hamilton's response is one of the weakest and least convincing passages of the Federalist, and history has proven Brutus right.
There is no perfect solution to this problem, but the one that comes closest to optimum, in my view, is for judges to stand for a yes/no retention election at some long interval. Experience shows that it is extremely difficult to remove a judge in such an election, but the safety valve is there when it is truly needed.
In Florida, the Republican Party's executive board has voted to oppose three justices of the Florida Supreme Court for retention. Their announcement cites the capital case of Joe Elton Nixon. Nixon carjacked Jeanne Bicker, forced her into the trunk of her MG, drove her to a remote area, tied her to a tree with jumper cables, and set her on fire, burning her to death. The Florida Supreme Court's reversal was indeed an awful decision. CJLF's amicus brief in the U.S. Supreme Court is here. The high court reversed in a unanimous decision by Justice Ginsburg. See Florida v. Nixon, 543 U.S. 175 (2004).
I do not know enough about these three justices' entire records to know if they should be retained, but they are making the usual invalid argument that any campaign against retention is an attack on "judicial independence." That is essentially an argument against having retention elections at all. Michael Peltier has this story for ThomsonReuters.
California's experience proves the contrary. Three justices were deservedly denied retention by the people in 1986. The court was vastly improved afterward. We very rarely see its decisions reversed by the U.S. Supreme Court. When the high court resolves conflicts between the California Supreme Court and the Ninth Circuit, the answer is nearly always that the California Supreme Court was right.
Let the Florida justices defend their records on the merits. Judges should reverse criminal judgments, even in horrible cases, when the law requires them to do so. They should not, however, bend over backward to find an excuse to let murderers off the hook. When they do, the people should show them the door.
No so good news in the Pacific Northwest. The primary election for Washington Supreme Court was a photo finish, but the people will now have a choice in the general election between a dyed-in-the-wool "true believer" defense zealot, Sheryl Gordon McCloud, or the return of the crackpot heckler they bounced last time, Richard Sanders. See prior posts here, here, and here. The bitter irony is that those who seek justice in the State of Washington are going to have to hold their noses and support The Heckler.
Which jurisdictions have the worst judges? It appears to me that it's a close competition between those jurisdictions on the polar opposite ends of the selection method scale. Appointment with life tenure gets us judges such as Stephen Reinhardt of the Ninth Circuit, who slip in when one party has a political lock and are then fixed for life. States with purely electoral systems get crackpots such as Fine and Sanders.
The least-bad medium (if not necessarily happy) is appointment followed by yes/no retention elections, such as California has for appellate judges. The people have only bounced appellate judges here once, but that was exactly when we should have, and the knowledge that one might be challenged induces a bit more caution and a bit less arrogance than we see on the federal bench.
The U.S. Supreme Court decided Martinez v. Ryan yesterday. See post here. A Texas murderer, Jesse Joe Hernandez, wants to invoke it in a successive petition in Texas state court, claiming his first collateral review lawyer was ineffective. Brandi Grissom has this story in the Texas Tribune.
No dice says Texas CCA. Doesn't meet the statutory criteria for a successive petition. A concurring opinion agrees that this is correct given Texas CCA's past interpretation of the statute but asks the Legislature to amend it.
Martinez is based on the U.S. Supreme Court's assessment of the equities. It is not constitutional law binding on states. State courts need not follow it for state proceedings. Where state statutes are contrary, they cannot.