Recently in Death Penalty Category

Back in June, Doug Berman and Stephanos Bibas published their final version of "Engaging Capital Emotions" in Northwestern University Law Review Colloquy.  I found the article while I was cleaning out my desk today, and a re-read (and Kent's post yesterday) inspired me to blog about it. 

The article expresses Berman and Bibas' views on the role emotions play in death penalty litigation while focusing particularly on cases of child rape.  Their theory is that human emotion drives many of our criminal law practices, and is particularly relevant in the area of capital punishment.

Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.

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"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.

That balance is the key point.

The dissent picked up two more votes on Maryland's death penalty study commission, reports Gadi Dechter in the Baltimore Sun.

In an interview, [Attorney General Douglas] Gansler, a Democrat, said that he did not believe lawmakers would be greatly influenced by the recommendations of a commission and that he expects the General Assembly to retain the practice."This commission was stacked from the beginning to come out with findings against the death penalty," said Gansler, a former chief prosecutor in Montgomery County. He said he supports the death penalty if it is handled in a "fair, race-neutral, socioeconomic-neutral way."

The California Court of Appeal, First District has held that the lethal injection protocol is a regulation subject to the Administrative Procedures Act. The decision in Morales v. Cal. Dept. of Corrections and Rehabilitation is here. If CDCR had simply checked the boxes on the APA when this first came up, the regulation would be final by now.

Pennsylvania has filed its certiorari petition seeking Supreme Court review of the Third Circuit decision overturning the death sentence of the notorious Mumia Abu-Jamal. The case is Beard v. Abu-Jamal, No. 08-652. Abu-Jamal's petition seeking review of the Third's decision to uphold his conviction is due next month.

Joe Palazzolo at BLT notes the conflicting stories regarding whether former Deputy AG Eric Holder has been tapped for the top spot. Newsweek says yes and the WaPo says "almost certainly." On the other hand, "An official in the Obama camp told the [New York] Times that the Newsweek report was 'wrong.'"

Palazzolo notes that the controversial pardon of Marc Rich would likely come up in confirmation hearings. There is another issue that requires airing if Holder is indeed the nominee. That is DoJ's controversial data dump late in the Clinton Administration of uncontrolled numbers on the ethnic breakdown of federal capital cases.

Irrespective of the debates about culpability and psychopathy, the noted traits of the psychopath - the glibness, lack of remorse, irresponsibility - speak volumes about the type of folks given the psychopathic label. And while merely reading a court opinion in no way makes a diagnosis, the case of O'Kelly v. State (#S08PO916) provides a chilling account of someone likely deserving of that label:

The U. S. Supreme Court this morning dumped the capital habeas case of Bell v. Kelly with a one-line order: "The writ of certiorari is dismissed as improvidently granted." Sometimes "improvidently granted" is a term of art, but this time it is literally true. They took a case that does not present the issue the petitioner claimed it presents. As noted here, the premise of the question presented -- that the state court refused to consider evidence -- is false, and counsel for petitioner admitted as much in oral argument. As discussed here, the case could have been used to resolve some important issues nonetheless, but the Court decided to simply dump it.

Update: Doug Berman at SL&P has this post invoking the late Gilda Radner: "Oh, never mind."

That is the title of this Gallup report by Lydia Saad. On the generic question (problematic for measuring absolute support but useful for gauging long-term trends), the result is 64-30, down a tad from last year but the same as three years ago. On the better-worded too often / not often enough question, the sum of not often enough and about right (support for current law or tougher), comes to 71% versus 21% for too often.

For all the talk about increasing opposition to the death penalty, answers to this question have been remarkably steady for the seven years Gallup has asked it.

From The Economist print edition (the title above is theirs, also):

Mixed signals from Canberra over the Bali bombers

THE death sentences against the three Bali bombers put Australia—88 of whose nationals died in the attacks—in a difficult spot. It officially opposes capital punishment and is seeking clemency for three Australian drug-traffickers facing execution in Indonesia. Even some of the Bali victims’ families spoke out against the shedding of more blood. Out of respect for such views, Indonesia delayed the executions during a five-day visit to their country this month by Prince Charles—heir to throne of Britain, Australia and several other countries that oppose capital punishment.

However, many Australians disagree with the government’s policy and there has been an especial clamour for the maximum penalty to be paid by the Bali bombers. Ahead of the executions the prime minister, Kevin Rudd, was pushed to say that the bombers “deserve the justice that they will get”. But within hours of the Bali three’s execution, Mr Rudd’s government announced a new campaign to press for a United Nations ban on capital punishment worldwide.

Frustrated at these mixed signals, Indonesia’s foreign minister, Hassan Wirajuda, has asked Australia to respect his country’s legal system. Indeed, the Rudd government’s drive for a global ban on the death penalty will conflict with its desire to strengthen relations with Australia’s Asian neighbours. Singapore, Malaysia, Vietnam, China and Japan all execute criminals and generally resent being told not to. Mr Rudd’s campaign for a ban will win many backers, especially Europeans, but its chances are not good.