Post-Baze mopping-up operations are reported in this AP article by Larry O'Dell and Randall Chase. The Fourth Circuit held oral argument today in the Emmett case.

In Richmond, attorneys for Emmett and the state told a three-judge panel of the 4th U.S. Circuit Court of Appeals that they would consider settling the case if they can agree on changes to the state's execution protocol to satisfy Emmett's concerns -- in his case only.

I do not think the Virginia AG should go for that. Having a Fourth Circuit precedent on the validity of their protocol will go far toward expediting future executions, even if it means a little extra delay on this one.

In Delaware, U.S. District Judge Sue Robinson said she must decide whether the state's procedure is significantly different from Kentucky's, as claimed by an attorney representing ax murderer Robert Jackson III and other death row inmates.

Deputy Attorney General Elizabeth McFarland said Delaware's protocol is even more detailed than Kentucky's, leaving even less to chance. "The protocol is very clear as written," she said.

The judge set a June 23 hearing to consider which specific issues and expert witnesses will be heard in deciding whether Delaware's protocol presents a substantial risk of unnecessary pain to the condemned inmate.

Posted by Kent Scheidegger at 03:51 PM | Permalink | Comments (0)

More breaking news on the possible first post-Baze execution. Lyle Denniston at SCOTUSblog has this post, with the pleadings, on Georgia murderer William Lynd's certiorari petition and request for stay to the U.S. Supreme Court.

The state's opposition notes that the Georgia Supreme Court's decision rests on the independent state ground that Lynd has already had a state habeas petition and is not entitled to another one. Lynd's reply says that the mere fact that the state court requested merits briefing means its decision was on the merits, not procedural default, and the Supreme Court therefore has jurisdiction. Nope. We slew that dragon 17 years ago. See Coleman v. Thompson, 501 U.S. 722, 744 (1991).

Update: Lyle reports that the Court denied the stay and certiorari at 7:01 ET.

Update 2: "William Earl Lynd was pronounced dead at 7:51 p.m. EDT, Georgia Department of Corrections spokeswoman Mallie McCord told The Associated Press," Shannon McCaffrey reports.

Posted by Kent Scheidegger at 03:55 PM | Permalink | Comments (7)

The anti-DP crowd is crowing over another "exoneration," once again obscuring the distinction between inability to reprosecute and actual proof (or even evidence) of actual innocence. DPIC, for example, has this description of the case of Levon Jones in North Carolina. The headline begins "Innocence" even though the text of the story does not claim he is actually innocent.

The district attorney's press release is here. It turns out the witness recantation is only in an affidavit prepared by defense counsel. That is the weakest of all forms of evidence. It is not unusual for a person to sign a statement under pressure from a persistent lawyer or investigator only to say something quite different when speaking in his or her own words on neutral ground. But in this case, the witness won't speak to anyone from law enforcement. The DA believes she has been intimidated by the defendant. Two other witnesses in the case are dead.

What does it mean to be "exonerated"? The Oxford online dictionary says, "1 officially absolve from blame. 2 (exonerate from) release (someone) from (a duty or obligation)." If a person is released and the charges are dropped, the person is "exonerated" in the second sense. He has no remaining duty or obligation. He is not, however, absolved from blame in the sense of having been affirmatively shown to be blameless.

This is a vitally important distinction when the policy implications of cases such as this are considered. The requirement of proof beyond a reasonable doubt, along with other protections for the defendant, means that we tolerate a lot of guilty people going free. That happens on initial trials, such as O.J. Simpson, and it happens when convictions are set aside and cases are sent back for retrial. The fact that a few cases cannot be successfully reprosecuted a decade or two after the crime does not mean that the defendants were innocent. A few are, but not all or even most.

Posted by Kent Scheidegger at 08:44 AM | Permalink | Comments (2)

The federal courthouse in San Diego was hit by a bomb about 1:40 a.m. Sunday. Angelica Martinez has this story in the San Diego Union-Tribune.

Posted by Kent Scheidegger at 08:25 PM | Permalink | Comments (0)

Ohioans, sit down before you read this. The Sixth Circuit today upheld the conviction and death sentence of Marvallous Keene for "eight counts of aggravated murder, six counts of aggravated robbery, one count of aggravated burglary, one count of burglary, two counts of kidnapping, and two counts of attempted aggravated murder." Judge Gilbert Merritt was on the panel and did not dissent. Among the claims was a supposed equal protection violation for not seeking the death penalty against other murderers who had killed far fewer people. Yes, there are arguments in capital cases so bogus that they don't even pass Judge Merritt's smell test.

Posted by Kent Scheidegger at 01:30 PM | Permalink | Comments (0)

Patrick J. Buchanan has this editorial at Human Events, titled "The Greenhouse Effect":

There is another and larger issue here.

It is the question not of what is decided, but of who decides.

Whether Citizen Stevens abhors the death penalty should not matter to Justice Stevens. For if the constitution provides for a death penalty, and capital punishment has been imposed throughout our history, and the form it takes does not violate the ban on cruel and unusual punishment, Stevens' decision should be automatic, no matter his personal beliefs.

What Stevens is signaling, however, is that his altered opinion of the death penalty may cause him to start voting against it -- that is, to substitute his personal view of capital punishment for the decision of the elected leaders who have voted to retain it.

Posted by Steven K. Erickson at 06:12 AM | Permalink | Comments (3)

Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.

Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.

Continue reading "Reading tea leaves in the Baze sequels" »

Posted by Kent Scheidegger at 03:49 PM | Permalink | Comments (0)

The Supreme Court denied certiorari this morning in several capital cases it had been sitting on since the fall, when it took up the lethal injection case of Baze v. Rees. The cases include Taylor v. Crawford (Missouri), No. 07-303, Biros v. Strickland, No. 07-6243, and Cooey v. Strickland, No. 07-6234, both from Ohio, Berry v. Epps (Mississippi), No. 07-7348, and Arthur v. Allen (Alabama), No. 07-395. As previously noted here, the stay of execution previously granted in Berry terminates automatically upon the denial of certiorari. Ditto in Arthur.

The Court also denied certiorari in other capital cases that had not been held up, but were briefed and decided on a normal schedule, e.g., Bower v. Quarterman (Texas), No. 07-8315 and Nicklasson v. Roper (Missouri), No. 07-8434.

In two of today's denials, Justice Stevens chimes in with a reminder that denial of certiorari does not imply an opinion on the merits. See Velasquez v. Arizona, No. 07-8946 and Frasier v. Ohio, No. 07-9052. Curious that he chooses two direct appeals from state courts to make these statements, not any of the federal actions. I'm not sure what, if anything, is implied by that.

The Supreme Court-imposed moratorium is over. Now we will see how quickly justice can be resumed in the several states and whether Supreme Court intervention is necessary in certain circuits.

Mark Sherman reports here for AP.

Posted by Kent Scheidegger at 07:55 AM | Permalink | Comments (1)

Last October, the Supreme Court denied certiorari and a stay in Earl Berry's case from the Mississippi Supreme Court but then granted a stay in his federal § 1983 case from the Fifth Circuit. Previous posts are here and here. By its terms, that stay terminates automatically if the certiorari petition is denied.

Berry's certiorari petition, No. 07-7348, is now on conference for tomorrow. A decision on it will probably be announced Monday. Lyle Denniston at SCOTUSblog has this post and Berry's supplemental brief, noting differences between Mississippi's protocol and Kentucky's.

But the judgment Berry wants reviewed wasn't decided on the merits.

Continue reading "Berry on Deck?" »

Posted by Kent Scheidegger at 03:12 PM | Permalink | Comments (2)

The Baze decision has extensive coverage in the news today. Here is a sampling:

Adam Liptak in the New York Times.
Jennifer McMenamin in the Baltimore Sun.
Debra Saunders in the San Francisco Chronicle.
David Savage in the Los Angeles Times.
A Florida-enhanced version of the LAT story in the Tampa Tribune with contribution by Valerie Kalfrin.
Kelley Shannon for AP in Austin.
Sean O'Sullivan in the Wilmington News Journal.
Heather Ratcliffe in the St. Louis Post-Dispatch.

Posted by CJLF Staff at 09:15 AM | Permalink | Comments (0)

Baze is one of those dreaded splintered opinions where we will have to pick our way through to figure out what the law is for some time to come. Even so, there are a number of important points on which the Court not only has a coherent majority but actually is unanimous. These are worth noting.

The plaintiffs got no support for a standard of "unnecessary risk" in the sense that any method of execution could be challenged indefinitely into the future merely by showing that some other method had less risk of pain. Justice Ginsburg writes at page 4, "Proof of 'a slightly or marginally safer alternative' is, as the plurality notes, insufficient."

No one endorses the argument that monitoring by a person qualified to assess "anesthetic depth" is required. See petitioner's brief 57-59. The plurality recognizes the Catch-22 strategy of requiring the participation of people who are forbidden to participate and rejects it. No one on the Court disagrees.

No justice buys the argument that a single-drug protocol is constitutionally required. The contrary standard for human euthanasia in the Netherlands pretty well neutralized the veterinary standard argument. A comment in the Stevens opinion was the only positive mention of that argument, and both the plurality and Justice Breyer dismiss it.

All appear to be agreed that the three-drug protocol is clearly constitutional in those states that add a consciousness check after the pentothal injection. The main point of the dissent is to emphasize that such a check sharply reduces the chances of a "botched" execution. Kentucky and other states that do not yet have such a check would be well advised to add one.

Posted by Kent Scheidegger at 04:38 PM | Permalink | Comments (0)

My written statement on the death penalty to the California Commission on the Fair Administration of Justice is now available here.

Posted by Kent Scheidegger at 10:15 AM | Permalink | Comments (0)

The Supreme Court decided the lethal injection case, Baze v. Rees today. The opinion is here. There is no majority, but I expect the plurality opinion by Chief Justice Roberts will be treated as the authoritative word. A couple of key passages:

Accordingly, we reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent’s “untoward” risk variation. See post, at 2, 11 (opinion of Ginsburg, J.) [footnote omitted]

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. [footnote omitted]

Slip op. at 11-12.

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Slip op. at 22 (emphasis added)

Posted by Kent Scheidegger at 07:42 AM | Permalink | Comments (1)

The "redacted" version of Volume 4 of the Joint Appendix has now been filed with the Court, and it has been added to our Baze v. Rees document collection.

Posted by Kent Scheidegger at 05:25 PM | Permalink | Comments (0)

From the AP in Tennessee:

State prosecutors say a death penalty study committee formed by the Legislature is unfairly stacked with too many members who oppose the punishment.

James "Wally" Kirby, executive director of the Tennessee District Attorneys General Conference, has told legislators the committee's intent is to abolish capital punishment.

Continue reading "Yet Another Stacked Death Penalty Commission: Part 2" »

Posted by Kent Scheidegger at 01:00 PM | Permalink | Comments (0)

Ohio's hearings on lethal injection are going forward. Joe Milicia reports here for AP on the defense testimony. Dr. Mark Heath testified for the defense, again, saying pretty much the same things he has said in other states. Tomorrow Dr. Mark Dershwitz will testify for the state, again.

No mention of Darth Vader this time.

Posted by Kent Scheidegger at 04:24 PM | Permalink | Comments (0)

The Los Angeles City Council debated a resolution declaring a 40-hour moratorium on murder, David Zahniser reports for the LA Times. Commenters at the Volokh Conspiracy discuss whether this was an April Fool's joke. Ultimately, the council "decided instead to use the upcoming anniversary of Dr. Martin Luther King Jr.'s assassination as an occasion for promoting peace."

Of course, if they actually wanted to lower the homicide rate, they should call on the Legislature to enact reforms to actually enforce California's death penalty. As Paul Rubin of Emory University testified to Congress a couple of years ago, "The literature [on deterrence] is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment." But then again, if you only interested in making a statement and not in actually accomplishing anything, the research is irrelevant.

Posted by Kent Scheidegger at 04:07 PM | Permalink | Comments (1)

Meanwhile, back on the Left Coast, the California Commission on the Fair Administration of Justice held its third and final hearing in Santa Clara. Howard Mintz of the San Jose Mercury-News was there and has this story.

This commission was set up by former [thank God for term limits] State Senate leader John Burton, who doesn't know the meaning of the word "fair." The initial composition was blatantly stacked, but has been improved somewhat. We will reserve judgment until seeing their report on the death penalty. As the story notes, "Thus far, the commission's recommendations have received a cool reception from Gov. Arnold Schwarzenegger, who has vetoed all the board's calls for reforms."

Posted by Kent Scheidegger at 08:07 PM | Permalink | Comments (0)

While a death penalty repeal proposal was defeated in the Maryland Legislature, a bill creating yet another death penalty study commission did pass. One might have thought that the same persons of sense who defeated the repeal would have insured that the commission was balanced. Apparently not, according to this editorial in the Annapolis Capital, titled "Death penalty study's results are preordained."

There's no suspense about what the 19-member commission set up by the legislation will come up with by Dec. 15. The governor will appoint the chairman and 11 of the members. Gov. Martin O'Malley opposes capital punishment, and there's no serious doubt which point of view a majority of the panel will wind up favoring.

Maybe it's better if the stacking is totally obvious. If everyone knows the fix is in from the beginning, the final propaganda piece will have little effect.

Posted by Kent Scheidegger at 07:55 PM | Permalink | Comments (0)

Erin Sheley has an interesting column in the Weekly Standard on the two death penalty cases before the Court this term. As she puts it:

In Baze, two Kentucky death row inmates--one convicted of murdering two police officers, the other of wounding a two-year-old boy and shooting his parents to death in a parking lot--challenge the three-chemical formula used by 35 states to perform lethal injection. While the defendants do not challenge the practice of lethal injection itself, they argue that the particular cocktail in use is "highly vulnerable to multiple errors, any one of which will result in the infliction of agonizing pain." They argue that any death penalty procedure creating "unnecessary risk" of suffering should be deemed cruel and unusual, and urge that "an execution procedure creates unnecessary risk where, taken as a whole, it presents a significant risk of causing severe pain that could be avoided through the use of a reasonably available alternative or safeguard."

Should this claim be accepted by the Court, the ramifications for states' administration of capital punishment would be dramatic. The Baze defendants do not assert that the risk of pain need be great, only that it be unnecessary because an alternative means of execution is available. As long as medical science continued to generate arguably less painful alternatives for the anti-death penalty movement to champion, any method in use could be deemed unconstitutional. Because a legal challenge to a procedure can result in a moratorium on its use (indeed, a three-month nationwide moratorium on lethal injection has been in effect since the Court agreed to hear Baze), the proposed standard could indefinitely prevent states from enforcing the sentences of their courts.

As Sheley alludes to, somehow this mix of science and capital punishment is toxic and inane. It's toxic to our legal and scientific institutions because the death penalty was never meant to be what it de facto has become: a medical procedure. It is inane because science can never inform the law what the permissible ceiling of acceptable pain meets constitutional muster.

Posted by Steven K. Erickson at 08:09 PM | Permalink | Comments (0) | TrackBacks (0)

The Third Circuit has ordered a new sentencing hearing in the case of Mumia Abu-Jamal, who was convicted of killing Philadelphia Police Officer Daniel Faulkner in 1981. The lengthy 118 page opinion is here and the Fox news story here. Faulkner's memorial site can me found here.

Update:

Michael C. Moynihan over at Reason's blog Hit & Run says:

Remember Mumia Abu-Jamal, the cop-killing NPR contributor who rallied legions of campus radicals during the 1990s to protest his innocence? There was a time when every demonstration —anti-globalization, anti-war, anti-whatever—featured an organized division of "Free Mumia" types. In 2002, the Paris City Council conferred honorary citizen status on Jamal, and in 2006 the city named a street after him. Quite a step down from Rue Eisenhower and Place du Général Patton. But the Mumia cause soon faded—when everyone (but Parisian politicians) realized that he was guilty. In his book Dude, Where's My Country, Michael Moore admitted that "Mumia probably killed that guy."

Perhaps that's one reason why so many folks are skeptical of the various innocence projects which seem heavy on the rhetoric and loose with the facts.

Posted by Steven K. Erickson at 09:27 AM | Permalink | Comments (0) | TrackBacks (0)

Despite all the wailing and gnashing of teeth over the Supreme Court's decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not, based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.

So the ball is squarely in Congress's court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice's decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.

Continue reading "Medellin: What Would Congressional Implementation of Avena Look Like?" »

Posted by Kent Scheidegger at 08:57 AM | Permalink | Comments (1)

On remand after the U.S. Supreme Court decision last June in Panetti v. Quarterman, No. 06-6407, the U.S. District Court for the Western District of Texas has found Scott Panetti to be competent to be executed. The decision, in two parts, is here and here. The bottom line:

Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two. Therefore, if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti.

Coincidentally, this order comes on the same day the Supreme Court heard oral argument in Indiana v. Edwards on whether the Faretta rule really does require states to allow marginally competent defendants to represent themselves, the source of much controversy in Panetti's case, although not the issue before the Supreme Court in that case.

Posted by Kent Scheidegger at 02:24 PM | Permalink | Comments (2)

Nebraska's one-house Legislature rejected the bill to repeal the death penalty 28-20. AP story here. However, the Legislature has not provided a statutory replacement for the electric chair thrown out by the Nebraska Supreme Court, as discussed here.

Posted by Kent Scheidegger at 09:08 PM | Permalink | Comments (0)

The Supreme Court decided the case of Medellin v. Texas, 5-1-3. The case involves a decision of the International Court of Justice that the United States must reconsider the claims of about 50 Mexican nationals that their rights under the Vienna Convention were violated by the failure of police to inform them upon arrest that they could have the Mexican Consulate notified. In many of the cases, including Medellin, state courts had held that the claim was defaulted by failure to raise it in time. The ICJ held, in essence, that the default rule could not be applied at least to defaults occurring before the consulate had notice of the case. Two years ago, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court disagreed and held that the treaty does not trump state procedural default rules. However, that case did not involve any of the persons whose cases were actually before the ICJ.

Two arguments were made to distinguish the Medellin case from the earlier case. The first one was that the treaty obligations of the United States to submit Vienna Convention disputes to the ICJ and to comply with the ICJ decisions have direct legal force in domestic courts. The second was that a memorandum issued by the President to the effect that state courts would implement the ICJ decision was a proper exercise of the President's authority in foreign affairs.

Today's decision by Chief Justice Roberts rejected both arguments. The treaties are not self-executing, based on an analysis of their language. Although the United States has an obligation under international law, that obligation only becomes a domestic law binding on domestic courts if Congress enacts legislation to implement it. Second, although the President has broad powers in foreign affairs, he cannot transform a non-self-executing treaty into a self-executing one.

On page 25 of the slip opinion, the Court notes, "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes." We can expect the next stage of this drama to be the introduction of bills to implement the ICJ decision.

Posted by Kent Scheidegger at 09:34 AM | Permalink | Comments (5)

Anesthesia awareness is the phenomenon of patients waking up during surgery. This issue has been involved in the challenges to lethal injection and the pending Supreme Court case of Baze v. Rees. One proposed solution to the problem is a device that measures "bispectral index" or BIS. The monitor gives a simple digital reading that is supposed to assure that the patient (or murderer) is actually unconscious. However, the effectiveness of this device is challenged in research published in yesterday's issue of the New England Journal of Medicine. AP story here; Washington University School of Medicine press release here; NEJM abstract and citation here. (Full text of the article requires a subscription or $10.)

Posted by Kent Scheidegger at 04:18 PM | Permalink | Comments (0)

A study on Maryland death penalty costs released last week has serious flaws and paints a misleading picture. There are three major deficiencies apparent on the face of the Urban Institute’s report:

First, the study fails to consider the savings that result when a case is plea-bargained to life in prison, a bargain few murderers would agree to in the absence of the death penalty.

Second, the study intentionally ignores the savings that result from the deterrent effect of the death penalty, asserting without justification that one article criticizing the numerous deterrence studies is “conclusive.”

Third, the study assumes that the long delays and high reversal rates that have characterized Maryland’s death penalty in the past will continue indefinitely, ignoring the potential savings from reform of the review process.

Continue reading "Flawed, Misleading Study on Death Penalty Costs" »

Posted by Kent Scheidegger at 03:28 PM | Permalink | Comments (4)

Virginia Governor Tim Kaine has once again vetoed legislation to repeal that state's triggerman rule, reports Mason Adams for the Roanoke Times. This statute automatically exempts from the death penalty a murderer who uses someone else to actually commit the killing, with a few exceptions. The state was able to fit John Allen Muhammad, the D.C. sniper, into one of the exceptions, but it was a tight fit. Maryland had no applicable exception, so this serial killer escaped the only fitting punishment for the six murders he was convicted of in that state.

A person who uses another to commit a murder as Muhammad did is more culpable, not less, than a solo actor. In cases where the nontriggerman is merely an accomplice rather than the driving force, the jury can take that into consideration as a mitigating circumstance. A bright-line exclusion of nontriggermen is irrational.

Gov. Kaine's only stated reason for his action is an opposition to "expansion of the death penalty." But Virginia does have the death penalty whether he likes it or not, and making the penalty fit the heinousness of the crime should have priority over the expansion/contraction issue.

Posted by Kent Scheidegger at 11:54 AM | Permalink | Comments (1)

Today, the Ninth Circuit designated for publication its order of February 14 on remand from the United States Supreme Court in Arave v. Hoffman.

Accordingly the U.S. Supreme Court vacated this court's judgment to the extent that it addressed the claim of ineffective assistance of counsel during plea bargaining, and remanded for future proceedings. We now instruct the district court to dismiss with prejudice Hoffman's claim of ineffective assistance of counsel during plea bargaining. The district court's grant of Hoffman's habeas petition on his claims of ineffective assistance of counsel with respect to sentencing still stands. The State of Idaho should proceed with the resentencing of Hoffman as ordered by the district court.

How nice. They "instruct" the district court to do substantially what it did correctly the first time before they mucked it up.

Posted by Kent Scheidegger at 10:11 AM | Permalink | Comments (0)

A trial judge in Connecticut has allowed a claim of the type rejected by the Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987) to go forward. This is the perennial claim that statistics show a racial or geographic "bias" in the administration of the death penalty. A long forgotten, but important, fact in the McCleskey case is that the federal district judge, after a full hearing with experts on both sides, found that the study did not prove what its authors claimed it proved. See McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984).

In Connecticut, the first study by the Public Defender came up with the "wrong" answer, so they suppressed it. As noted here, the claim that the study had to be suppressed because the results were not statistically significant does not pass the straight-face test. So now they have a new study that gets the "right" answer, and they can go forward. Katie Melone has this story in the Hartford Courant.

Posted by Kent Scheidegger at 04:00 PM | Permalink | Comments (0)

In London, the Sun asked readers of its Web site, "Should Britain bring back the death penalty?" The result: "And a staggering 99 per cent of the 95,000 readers who responded to our You The Jury poll said the Government SHOULD reintroduce it."

Internet polls mean very little, as they suffer from a two-stage selection bias. Only those who view the particular story are solicited, and only those who choose to answer it are counted. Even so, 99% of a sample that large is surprising.

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (0)

In its decision yesterday in State v. Mata, S05-1268, the Nebraska Supreme Court affirmed the judgment, including the death sentence, of child-killer Raymond Mata. However, as noted in yesterday's News Scan, the court declared the sole method of execution prescribed by statute in that state, electrocution, to be unconstitutional. So does that mean the death penalty is on hold unless the Legislature affirmatively restores it by enacted a new method? Would the advocates of repeal be able to achieve their goal through a combination of a court changing the rules and a legislative deadlock, as they have in New York?

Not necessarily.

Continue reading "Can Nebraska Restore Its Death Penalty Without Legislation?" »

Posted by Kent Scheidegger at 01:42 PM | Permalink | Comments (2)

The sun set on three murderers in the Land of the Rising Sun today, the AP reports. What kind of crime gets one executed in Japan? Pretty much the same as here: (1) murder of a prior rape victim in retaliation for reporting the crime; (2) rape and murder in two separate cases; and (3) murder of two people and attempted murder of a third.

The anti side likes to say that having the death penalty places the United States "in the same category" as dictatorial regimes such as China and Iran. That fatuous argument creates the categories for the purpose of the desired result by focusing on whether a country has the death penalty and ignoring far more important variables, including whether the justice system provides basic due process of law and whether it punishes criminally political dissent and exercise of religion. If we wanted to place countries into categories, we would begin with the most important variable, due process, and then create further subdivisions with lesser variables down the line.

As a country that provides due process and has the death penalty but only for murder (and theoretically major crimes against national security and possibly rape of children), the United States would be in the same category as Japan. I'm okay with that.

Europe criticizes the fact that the Japanese don't tell the inmate's family until after the execution. Yes, they should change that, but Europe will criticize them regardless.

Posted by Kent Scheidegger at 08:19 AM | Permalink | Comments (0)

Update Jan. 31 at 3:55PST: The Supreme Court has granted a stay pending filing and disposition of a certiorari petition. AP story is here. SCOTUSblog post here.
---------------------------------
The Eleventh Circuit vacated a stay of execution granted on an injection claim in McNair v. Allen. The court found that the § 1983 claim was barred by the statute of limitations. There are two plaintiffs in the case. The one with an imminent execution date (tomorrow) is James Callahan.

The full details of Callahan’s crime are set forth in Callahan v. Campbell, 427 F.3d 897, 903-10 (11th Cir. 2005). In short, on February 3, 1982, Callahan abducted 26-year-old Rebecca Suzanne Howell from a laundromat in Jacksonville, Alabama. He murdered her, then dumped her body in a creek, where it was discovered two weeks later.

Footnote 1: Although Callahan was not charged with rape, forensic evidence suggested Howell was sexually assaulted prior to her death.

The decision is correct based on pre-Baze precedent on a ground not at issue in Baze. There would seem to be no reason for the Supreme Court to grant a stay. However, after the Supreme Court granted certiorari in Baze, which does not involve a default issue, it did grant stays in other cases involving defaulted claims. At this point, the justices probably know what their decision is going to be in Baze, and it will be interesting to see if they grant a stay in this case. If I had to bet, I'd put my money on a grant. AP story is here. Lyle Denniston has this post at SCOTUSblog, and Doug Berman has this one at SL&P.

Next door, the inmates in the Florida injection cases, Ian Lightbourne and Mark Schwab, have asked Justice Thomas for an extra two months to file their cert. petitions here and here. Extension requests are typically decided by the circuit justice (unlike stays of execution, which the circuit justice almost always refers to the full court), so it matters that Florida is in Thomas Country.

Posted by Kent Scheidegger at 01:52 PM | Permalink | Comments (0)

An attempt to repeal the death penalty in Connecticut was rejected by a vote of 89-49 by that state's House of Representatives, Keith M. Phaneuf and Jenna N. Carlesso report in the Journal Inquirer.

Posted by CJLF Staff at 04:47 PM | Permalink | Comments (0)

In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.

What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.

In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:

The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.

Posted by CJLF Staff at 03:23 PM | Permalink | Comments (0)

The Tennessean has this article on Gov. Bredesen's opposition to a proposal to change lethal injection from the three-drug method presently under attack in Baze v. Rees to a one-drug method similar to that used by veterinarians. His position, in essence, is that any change from an established method triggers many years of litigation. In other words, the hyperlitigiousness surrounding the death penalty and the willingness of some courts to accept flimsy reasons for stopping executions actually operate to preserve a method that the opponents say is cruel.

"While some Tennessee lawmakers and death penalty advocates were pushing for the state to go ahead with a one-drug protocol to continue with executions, most are waiting to see what the nation's high court will decide" in Baze.

Posted by Kent Scheidegger at 04:02 PM | Permalink | Comments (2)

We are still waiting for a decision in Medellin v. Texas, argued October 10. (Briefs are here; argument transcript here.) This is the case on the Vienna Convention on Consular Relations and the International Court of Justice decision on the cases of 50+ Mexican nationals on death row in the United States.

The Court picked some low-hanging fruit today. In New York State Bd. of Elections v. Lopez Torres, the Court answered the question of whether the federal constitution requires primaries in state judicial elections. (Answer, without dissent: of course not.) The opinion is by Justice Scalia, and the case was argued October 3. There is also an eyes-glaze-over tax case, Knight v. Commissioner. This is a unanimous opinion by Chief Justice Roberts in a case argued a mere 7 weeks ago.

At this point, we can start playing the SCOTUS-watchers' favorite parlor game, guessing the outcome of the remaining October cases by guessing which justice they are assigned to. There were nine cases on the initial calendar, but one of them was one-lined per curiam when Justice Kennedy was recused and the others split 4-4. Opinions from that session have been written by Stevens (Gall), Souter (Watson), Ginsburg (Kimbrough), Kennedy (Stoneridge), and Scalia (today's New York case). Assuming the opinions are spread among the justices, as they generally are, this leaves four justices (Roberts, Thomas, Breyer, and Alito) and three cases. In addition to Medellin, there is Washington State Grange, on that state's primary election law, and United States v. Santos, on money laundering.

I expect that Roberts, Thomas, and Alito will all vote for the State in this case. If so, Medellin would win only if Breyer is writing the opinion, and he would be doing that only if Stevens assigned it to him. I'm inclined to think that Stevens would have kept a blockbuster case on presidential power and international court relations for himself if he were making the assignment, but that is admittedly just speculation at this point. Stayed tuned.

Posted by Kent Scheidegger at 03:00 PM | Permalink | Comments (0)

Last Friday, Charles Peters, founding editor of the Washington Monthly, had this op-ed in the Washington Post, praising the Illinois legislative accomplishments of Barack Obama. In particular, he notes the bill to require videorecording of interrogations.

This seemed likely to stop the beatings, but the bill itself aroused immediate opposition. There were Republicans who were automatically tough on crime and Democrats who feared being thought soft on crime. There were death penalty abolitionists, some of whom worried that Obama's bill, by preventing the execution of innocents, would deprive them of their best argument.

Wow. That last sentence is an incendiary charge. Peters is claiming that some "death penalty abolitionists" opposed a bill intended to stop the execution of innocent people not for some alternative reason but because they actually want innocent people to be executed to strengthen their case. Now, that is fanaticism.

This accusation does not come from the conservative side of the aisle. Quite the contrary, the Washington Monthly is a left-leaning publication. I don't know if the accusation is true and would be interested in hearing from anyone with solid information on the subject.

Posted by Kent Scheidegger at 10:41 AM | Permalink | Comments (0)

Today, the United States Supreme Court heard oral argument in the case of Baze v. Rees, regarding the constitutionality of Kentucky’s method for executing the death penalty. Kentucky uses a combination of three drugs originally developed in Oklahoma and presently in use in every state that has the death penalty except Nebraska. Audio (with still pictures) is on C-SPAN. Transcript is on the Court's site.

Overall, the argument appeared to go well for the state. Even Justice Stevens said the state had "a very strong case" (p. 41).

Continue reading "Baze Argument" »

Posted by Kent Scheidegger at 01:27 PM | Permalink | Comments (1)

Mayo Clinic Proceedings has published some reaction to the articles previously noted here. Not content with having contemporaneously published two editorials critical of David Waisel's article on physician participation in executions, they now publish a third, plus a commentary by the anti side's favorite lethal injection expert, Mark Heath.

They also publish six letters, four of which are on the opposition side. Despite having called only for responses that address the ethics of physician participation and not capital punishment generally, they go ahead and violate their own limit by publishing two letters attacking capital punishment generally. One of them is from Margaret R. Wentz, BA, of the Mayo Clinic. (You have to wonder about a person who uses a bachelor's degree as a title.) Ms. Wentz demonstrates her lack of sophistication on the subject with this obvious non sequitur: "Additionally, the death penalty is not a deterrent to crime. National crime rates vary little between states that have the death penalty and those that do not." She cites the notorious Helen Prejean and the Death Penalty Information Center for this nugget, making no mention of the large body of peer-reviewed literature finding a deterrent effect. The editors claim "the various letters and commentaries were subjected to the journal’s typical rigorous peer-review process." Excuse me if I am unimpressed with your rigor.

One item that is worthwhile is the letter from C&C blogger Steven Erickson. He calls Arthur Caplan on the carpet for making the ridiculous statement that the United States executes "children" in an article published two years after Roper v. Simmons banned execution of anyone under 18. This is on top of the fact that 16- and 17-year-olds are not "children" in the first place.

Posted by Kent Scheidegger at 01:04 PM | Permalink | Comments (3)

The U.S. Supreme Court will hear oral argument in Baze v. Rees, the Kentucky lethal injection case, on Monday. Briefs and other pertinent documents are collected here. Orin Kerr has this post at the Volokh Conspiracy. Alison Nathan and Douglas Berman have this dialog on SSRN, forthcoming in PENNumbra. (Doug calls it a debate, but they don't really disagree enough to call it that, IMHO.) Adam Liptak has this story in the NY Times on the resistance toward going to a single-drug method.

Posted by Kent Scheidegger at 08:17 AM | Permalink | Comments (1)

As 2007 winds down, we have another welcome piece of evidence that persons of sense are reaching critical mass at the notorious U. S. Court of Appeals for the Ninth Circuit. Judge Stephen Reinhardt, the epitome of judicial activism, has long been infamous for the rate at which he is reversed -- sometimes unanimously -- by the Supreme Court. Today, in Smith v. Baldwin, though, he was reversed 13-2 by the Ninth Circuit itself.

The case arises from the 1989 burglary of the Oregon home of Emmett and Elma Konzelman, then aged 87 and 74. Roger Smith and Jacob Edmonds entered the house. The Konzelmans were beaten with a crowbar, and Mr. Konzelman died of his injuries.

Continue reading "Growing Sense at the Ninth" »

Posted by Kent Scheidegger at 12:36 PM | Permalink | Comments (2)

Lili O. Graue, David T. R. Berry, Jessica A. Clark, Myriam J. Sollman, Michelle Cardi, Jaclyn Hopkins, & Dellynda Werline (2007), Identification of Feigned Mental Retardation Using the New Generation of Malingering Detection Instruments: Preliminary Findings, Clinical Neuropsychologist, 21(6), 929-942.

Abstract: A recent Supreme Court decision - Atkins v. Virginia, 536 U.S. 304 (2002) - prohibiting the execution of mentally retarded (MR) defendants may have raised the attractiveness of feigning this condition in the criminal justice system. Unfortunately, very few published studies have addressed the detection of feigned MR. The present report compared results from tests of intelligence, psychiatric feigning, and neurocognitive faking in a group of 26 mild MR participants (MR) and 25 demographically matched community volunteers asked to feign MR (CVM). Results showed that the CVM suppressed their IQ scores to approximate closely the level of MR participants. WAIS-III and psychiatric malingering measures were relatively ineffective at discriminating feigned from genuine MR. Although neurocognitive malingering tests were more accurate, their reduced specificity in MR participants was of potential concern. Revised cutting scores, set to maintain a Specificity rate of about .95 in MR clients, were identified, although they require cross-validation. Overall, these results suggest that new cutting scores will likely need to be validated to detect feigned MR using current malingering instruments.

The authors are all with the University of Kentucky, Lexington. Research Digest Blog has this summary.

Posted by CJLF Staff at 04:33 PM | Permalink | Comments (0) | TrackBacks (0)

"There was no evidence that the defendant's race was related to procedural and sentencing advancement," that is, to the likelihood that a death-eligible case would move forward to a penalty trial and from there to a death sentence.

Since 2003, the Chief Public Defender of Connecticut has had in hand a study that says this but refused to release the study until it came out in litigation yesterday. Lynne Tuohy has this article today in the Hartford Courant.

Continue reading "Suppressing Evidence" »

Posted by Kent Scheidegger at 03:43 PM | Permalink | Comments (0)

Jane Brody has this piece in the New York Times which discusses recent findings regarding how teenagers perceive and deal with risk:

Is it that teenagers think that they are immortal or invulnerable, immune to the hazards adults see so clearly? Or do they not appreciate the risks involved and need repeated reminders of the dangers inherent in activities like driving too fast, driving drunk, having unprotected sex, experimenting with drugs, binge drinking, jumping into unknown waters, you name it?

None of the above, says Valerie F. Reyna, professor of human development and psychology at the New York State College of Human Ecology at Cornell. The facts are quite the opposite. Scientific studies have shown that adolescents are very well aware of their vulnerability and that they actually overestimate their risk of suffering negative effects from activities like drinking and unprotected sex.

That's funny, I thought the psychological community was in agreement that "the characteristics of adolescents" were "as a group, are not yet mature in ways that affect their decision-making." At least that was the position of the American Psychological Association when it came to the juvenille death penalty. Indeed, the APA stated in it's brief that during adolescence the "brain has not reached adult maturity, particularly in the frontal lobes, which control executive functions of the brain related to decision-making." What they failed to mention, however, is that the process of myelination (which is what the APA brief was alluding to) is not complete until around age 50.

A good reason why institutions like APA should not take such strong positions on issues like the juvenile death penalty is because the science is rarely as settled as they make it out to be. We have a lot yet to learn about the human brain and development. Yet, when science enters the legal and political arena it risks its credibility when later discoveries, like those mentioned in the Times article, undermine positions that were so strongly held in the past.

Posted by Steven K. Erickson at 03:52 PM | Permalink | Comments (0) | TrackBacks (0)

Continue reading "Vote on Timmendequas's Law" »

Posted by Kent Scheidegger at 10:15 AM | Permalink | Comments (1) | TrackBacks (0)

The New Jersey Assembly passed Timmendequas's Law today, as expected. Jeremy Peters reports here in the NYT.

Joe Logan has this story in the Philadelphia Inquirer of the opposition to the law by the family of Megan Kanka, who was murdered at the age of 7 by Jesse Timmendequas. That crime sparked the enactment of the first "Megan's Law," back in the days when the New Jersey Legislature cared more about victims than about criminals.

Posted by CJLF Staff at 04:12 PM | Permalink | Comments (2) | TrackBacks (0)

I talk to the press fairly often on the subject of the death penalty and am quoted in the stories occasionally. They invariably spell my name correctly, no small accomplishment. The quotes are almost always accurate when they are direct quotes. Reporters' paraphrases of what I say, on the other hand, are often off the mark. On occasion, though, even a direct quote can be wrong. Sometimes it is simply not what I said. Sometimes, a quote is accurate as far as it goes but clips off an essential part of the statement. A whopper of a truncated quote that is effectively a misquote can be found in this AP story by David Crary.

On the subject of the cost of the death penalty, I have stated my position publicly many times. That position is that the death penalty would not cost significantly more than life imprisonment if we did them both correctly. It might cost less. To see why we must look separately at the guilt and penalty phases.

Continue reading "A Bad Misquote on Death Penalty Costs" »

Posted by Kent Scheidegger at 08:19 AM | Permalink | Comments (1)

Capital Defense Weekly contends,

In an opinion out Wednesday, the Tennessee Attorney General has held that it is inappropriate to kill animals by the same lethal injection protocols used to kill people.

Nope. The opinion in question deals with intracardial injection, a method never used for execution of murderers in the United States, or anywhere else that I know of.
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Update: CDW has this bizarre follow-up supposedly responding to the above yet making no mention of the holding of the AG opinion or intracardial injection and challenging me to retract a statement I didn't make. I decline.
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Misuse of the American Veterinary Medical Association's Guidelines on Euthanasia by the anti crowd has been so rampant that the AVMA now has a red-type disclaimer on the cover noting how the guidelines are not pertinent to the debate. The text of the disclaimer is after the jump.

Continue reading "Veterinary Misinformation" »

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (3) | TrackBacks (0)

The U. S. Supreme Court's orders list from last week's conference is here. Conspicuously absent is Berry v. Epps, No. 07-7348. On October 30, the Court granted a stay of execution in that case but provided that the stay terminated automatically if certiorari were denied. The certiorari petition was on the conference list for Friday, but apparently it has been delayed to a future conference. Our previous post is here.

If the Court has simply decided to hold all cases until it resolves Baze v. Rees, one can only wonder why they put it on the conference list at all.

Posted by Kent Scheidegger at 08:29 AM | Permalink | Comments (1) | TrackBacks (0)

The California Supreme Court has issued this