Recently in State Courts Category

The Florida Supreme Court has decided the case of Timothy Hurst on remand from the U.S. Supreme Court decision in Hurst v. Florida.  The majority wrongly interpreted the high court decision to require that the jury be unanimous in all of its decisions, not just the finding of the death-eligibility circumstance.

To insulate its error from a likely reversal by the high court, the Florida Supreme Court cynically added the state constitution as an additional ground for its holding, casually tossing out forty years of precedent from the restoration of capital punishment in the 1970s until the decision in Hurst.   Stare decisis?  We don't need no stinking stare decisis.

When Florida's Legislature was considering how to fix its statute in light of Hurst, the debate was all about whether to authorize a less-than-unanimous penalty verdict or go for the single-juror-veto law that lets one juror impose his will over the objection of the other 11.  I tried to tell them that the Arizona/California method of requiring the jury to be unanimous one way or the other was the way to go, and they blew me off.  Maybe now they will listen?

Chief Justice Malcolm Lucas

Retired California Chief Justice Malcolm Lucas died yesterday.  He was 89.

Justice Lucas was the lone voice of sense on the California Supreme Court in its darkest days, a time when judicial activism ran roughshod over the validly enacted will of the people, over the rights of victims, and over the state constitution itself.  He gave up a U.S. District Judge seat to take the position, and one reporter asked him why he was taking a "demotion."  There was important work to be done.

In 1986, the people stood up, said "no more," and booted three of the justices, including the notorious Chief Justice Rose Bird.  Governor Deukmejian elevated Justice Lucas to Chief Justice.  As the leader of the court, he was instrumental in restoring it to one of the finest courts in the nation.

After retirement, Chief Justice Lucas was a friend and advisor to CJLF.  He will be missed.

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.
The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.

Connecticut Death Penalty Hearing

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Generally speaking, legislatures can make reductions in punishments retroactive to old cases or not, as they choose.  The Connecticut Legislature's repeal of the death penalty was unambiguously not retroactive, and politically it would not have passed without that savings clause.  The ink was not dry on the bill before the anti-death-penalty crowd attacked that clause of their own bill.  In a shocking act of judicial activism, the Connecticut Supreme Court in Santiago v. State declared the death penalty unconstitutional despite having rejected that claim many times over the years and despite the established history of nonretroactive changes in sentencing law in that state.

Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision.  Video of the argument is now available here.

The defense lawyer's argument is really painful to watch.  He just keeps insisting over and over that the Santiago decision must be respected as final.  So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty?  The defense side seems to think that precedent is a ratchet.  No decision favoring the prosecution is ever final.  Every one is subject to constant attack.  But once the defense wins a point, it becomes absolutely sacrosanct.  This is utter nonsense.

A decision should receive no more respect as precedent than it gave to precedent.

SCOTUS Considers the Wichita Massacre

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Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.
Miguel Bustillo reports for the WSJ that Texas AG Ken Paxton has been indicted by a county grand jury.  However, the fact that this case was instigated by the same group that brought the preposterous charge that former Governor Rick Perry committed a crime by vetoing a bill makes the whole matter suspect.  See prior post on that case.

The allegation is violation of disclosure and registration requirements for people selling securities, prior to Mr. Paxton becoming Attorney General.

The group calls itself Texans for Public Justice.  First the case went to District Attorney of Travis County, who said she had no jurisdiction and referred the case to Collin County.  The DA there, a friend of Mr. Paxton's, recused himself.  Two defense lawyers were appointed as special prosecutors.

The Texas Legislature may want to look at the state's special prosecutor system.  People who have not been elected and who are not responsible to any elected executive officer should not be exercising the executive authority of the state.  There needs to be a better way to deal with recusals.

Background on the Weidert Case

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Those who read the entry about the Weidert case in today's News Scan may wonder why Weidert was not sentenced to life without parole.  After all, isn't killing a witness to a crime to prevent his testimony "special circumstance" murder in California?

This case was decided in the darkest days of the California Supreme Court.  See People v. Weidert, 39 Cal.3d 836, 705 P.2d 380 (1985).  Cal. Supreme in those days bent over backward to resolve every conceivable issue -- and some inconceivable ones -- in favor of murderers.  Weidert was 17 1/2 at the time of the crime, and the court held that the circumstance of killing a witness to prevent his testimony in a criminal proceeding did not apply to a person who at least initially would have been in juvenile court for the underlying burglary.

CJLF filed an amicus brief to argue against this anomalous result.  (Not me, that was before my time here.)  Justice Lucas agreed with our position, as did Justice Mosk, but the court was so stacked against the law-abiding public at the time that the decision went 5-2 the other way.

Fourteen months later, the people of California tossed out three of the justices for their consistent tilt in favor of criminals.  That vote and the consequent vast improvement in the California Supreme Court remains to this day one of the strongest arguments against life tenure for judges.
Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

News Scan

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Impact Of Gov. Brown's Supreme Court Appointees:     Maura Dolan of the LA Times reports  that California Governor Jerry Brown's most recent appointees have provided enough votes on the seven-member Supreme Court to force reconsideration of a death penalty case upheld last January.  The case of People v. Grimes involves the brutal robbery-murder of a 98-year-old woman by habitual felon Gary Grimes and two accomplices.  The Court's January decision  rejected numerous claims of trial and  sentencing error and upheld the conviction and sentence with a 4 justice majority, one concurring and dissenting and two dissenting.  The same day the decision was announced, Brown appointees Mariano-Florentino Cuellar and Leondra Kruger were sworn in as justices.  In a brief order yesterday, the court announced it would reconsider the case with the two new justices voting with the two dissenters. 

Texas CCA Goes West

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In most states, the state high court sits primarily in the capital city.  California is the oddball (so what else is new?) with its Supreme Court headquartered in San Francisco.  The dual high courts of Texas and Oklahoma follow the usual pattern.

Courts occasionally hear arguments outside their usual place, though, to give more citizens a look at how they work.  Thursday, the Texas Court of Criminal Appeals will go west -- as far west as you can go and still be in Texas -- holding arguments at the University of Texas - El Paso.  An announcement is on the court's website.

Neither of the cases is from West Texas.  The capital case is that of a man who shot three people in a grocery store parking lot in Fort Bend, killing two of them.  Briefs in the case are here.

Cal. Supreme Nomination

Mark Pulliam has this article at City Journal, with a critical look at Gov. Brown's latest nomination to the California Supreme Court.
Five years ago, California Governor Arnold Schwarzenegger nominated former state Senator Charles Poochigian to the state Court of Appeal.  He was evaluated by the State Bar Commission on Judicial Nominees Evaluation and given the lowest rating, Not Qualified.  This was not because of his personal characteristics.  On the contrary, reported Kenneth Ofgang in the Metropolitan News-Enterprise at the time,

JNE Commission Chair Jonathan Wolf of San Francisco wrote to the chief justice that the nominee "is intelligent, diligent, and an independent thinker, courteous, and even well under pressure and demonstrates courage, compassion, and common a committed to public service."
So what was the problem?  There was one and only one.

But Poochigian's legal background does not qualify him for the appellate bench, Wolf said, explaining:

"He had not practiced law for approximately 21 years and had not litigated a case in approximately the same amount of time. Moreover, he has no jury trials and no criminal law experience."

The commission did consider Poochigian's experience in the Legislature, including his work on criminal law issues as vice chair of the Senate Public Safety Committee, but did not find this sufficient, Wolf related.
Why bring this up five years later?  Governor Jerry Brown recently nominated Stanford Law Professor Mariano-Florentino CuĂ©llar to the California Supreme Court.  His CV, while otherwise impressive, is devoid of practical legal experience.  Does the JNE Commission have a problem with that?  Oh, heavens to Betsy, no.  "A state bar evaluating commission gave Cuellar ... its highest rating: exceptionally well qualified," reports Maura Dolan in the LA Times.

Does an otherwise well qualified nominee with little, no, or stale practical legal experience deserve the highest rating or the lowest?  The answer, if the rating is done by the California State Bar's commission, depends entirely on political alignment.

Claims that removing judicial nomination functions from elected officials and turning them over to bar committees will remove politics from the process are complete hokum.

What's the Matter with Kansas?

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Its state supreme court, that's what.  That court is as bad on capital cases as California's old pre-1986 Bird Court was.  They don't seem to learn from their repeated reversals by the U.S. Supreme Court, including last term's unanimous Kansas v. Cheever (CJLF brief here).  In July 18's reversal of the death sentence of a double murderer, Justice Biles notes in dissent:

I dissent from the majority's holding that Sidney Gleason's sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority's conclusion defies the United States Supreme Court's established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.

Judicial Control of the Courtroom...

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...takes on a whole new meaning.

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