I'm about to travel to Albany, New York to attend tomorrow's 157th commencement ceremony for Albany Law School graduates. Ben Riemer receives his J.D. at the Saratoga Performing Arts Center, and almost immediately begins studying for the Texas Bar exam. He'll be joining Bickel & Brewer in Dallas.
Posts will resume later.
Tony Mauro reports, "Clement Resigns as Solicitor General," for Legal Times.
Solicitor General Paul Clement, who led the courtroom defense of the Bush administration's anti-terror legal policies -- and emerged unscathed -- announced Wednesday he is leaving his job June 2.
Clement argued 49 cases before the Supreme Court in the last seven years and was viewed by Washington law firms as probably the most valued "catch" from the Bush Justice Department, with some managing partners guessing he could easily attract a $2 million or $3 million package.
But details about his next step were not forthcoming from Clement. A Justice Department spokesman said Clement had "no specific plans" and looked forward to spending the summer with his family.
At the Washington Post's On God blog, Claire Hoffman interviews Steve James, one of the filmmakers behind the documentary, "The Struggles of a Minister of Death."
I had breakfast a few weeks ago with acclaimed documentary filmmaker Steve James whose work includes "Hoop Dreams" and one of my favorites, "Stevie". James and Peter Gilbert have a new film out, "At the Death House Door" that examines the journey of a Presbyterian minister Carroll Pickett who spent 15 years as chaplain at the infamous Huntsville, Texas, prison where he bore witness to 95 executions.
After each execution, Pickett recorded an audiotape account of that fateful day. (Here's a review in the Chicago Tribune). The film sort of sneaks under your skin as it follows Pickett's struggles and transformation from a pro-death penalty preacher to a very isolated being trying to reconcile his faith and feelings to his role in these deaths.
It opens this week and actually there's a screening in D.C. tonight at 7 p.m. at the AFI Silver Theater with a discussion afterward with the filmmakers as well as Rev. Pickett so this is nicely if a bit belatedly timed. Check it out.
In North Carolina, the Raleigh News & Observer's Titan Barksdale reports, "Death penalty documentary drives pleas for more scrutiny."
Rep. Rick Glazier and others called on leaders across the country Wednesday to scrutinize the death penalty and its application to help prevent executing innocent inmates.
Glazier, a Cumberland Democrat, spoke in the legislative auditorium as part of a panel that included legal scholars, a filmmaker, a minister and a Chicago Tribune investigative journalist. The discussion stemmed from the national premiere of a documentary, "At the Death House Door."
The film, co-directed by Peter Gilbert and Steve James, is set in Texas and explores the effects of the death penalty on those closest to the process -- mainly the condemned inmates and a death row chaplain who was responsible for comforting them before the execution.
"Many victims are created when one man is put to death," Gilbert said.
Two themes quickly emerged during the discussion: the effect of race on criminal cases and wrongful convictions.
On Wednesday, Glazier wore a button encouraging people to "Support the Racial Justice Act." Co-sponsor for that legislation, he said that race can not be ignored as factor in convictions.
Carroll Picket's memoir, Within These Walls, is available under Books in the right-column. Earlier coverage is in the documentary index.
The Washington Post reports, "Lethal Injection Methods Weighed," by Jerry Markon.
A federal appeals court took up an issue Wednesday with broad implications for how executions will be carried out nationwide: whether Virginia's method of lethal injection induces an agonizing death.
The debate before the U.S. Court of Appeals for the 4th Circuit came in the case of Virginia death row inmate Christopher S. Emmett. His lawyers are challenging the state's lethal injection procedures, saying that prisoners are not fully anesthetized before being administered drugs that can cause excruciating pain. The Virginia attorney general's office said the state's executions are humane and constitutional.
Lawyers said it was the first time an appeals court has debated lethal injection since the U.S. Supreme Court ruled in April that the three-drug protocol most commonly used in executions by states and the federal government is not cruel and unusual punishment. Similar hearings are expected across the country, exploring how the court's decision will be carried out.
"The death penalty is constitutional. It's constitutional to use lethal injection. That's been established," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. "Now, we're getting down to the details. Should lethal injection be done the way it's been done?"
At issue is whether Virginia's method is constitutional in light of the Supreme Court decision.
And:
It was unclear how the 4th Circuit will rule in the Virginia case, but Judge Roger L. Gregory aggressively questioned state lawyers. He said prison officials rely on "peeping through a hole, a curtain, to see if you're asleep" to determine whether an inmate is fully unconscious.
"We know that Virginia is effective at death because all of these inmates have died," Gregory said. "The question is, are you effective at preventing the excruciating death?"
"Virginia, Delaware death row inmates challenge lethal injections," is AP's dispatch via Google.
Attorneys for death row inmates in Virginia and Delaware argued Wednesday that their states' lethal injection procedures need changing despite a recent U.S. Supreme Court ruling that upheld the most widely used method of execution.
Some of the 35 states that use lethal injection moved swiftly to schedule executions put on hold for seven months while the Supreme Court considered a Kentucky case arguing that lethal injection was cruel and unusual punishment. Georgia became the first to kill an inmate last week.
But death row inmates in other states continue to press legal challenges on similar grounds, and federal courts held separate hearings Wednesday on two such cases.
In Delaware, death row inmates have filed a class-action lawsuit claiming the state's lethal injection method is substantially different from the Kentucky method.
In the Maryland Daily Report, Alan Cooper writes, "4th Circuit hears lethal injection case."
The case took an unexpected turn, though, with questioning by one of the judges leading to the possibility that Christopher Scott Emmett could be injected with a different drug than the commonly used combination.
As Washington attorney Matthew S. Hellman was describing what he saw as Virginia’s “unique and uniquely dangerous” lethal injection procedure, Judge Dennis C. Shedd interrupted and asked whether the real issue in the case was opposition to the death penalty or a humane method of carrying it out.
“What if the state agreed to your protocol? Would that eliminate an appeal?” asked Shedd, who is hearing the case along with Judges William B. Traxler Jr. and Roger L. Gregory.
“It is possible that it could be worked out,” Hellman responded. “We haven’t explored that possibility.”
Shedd pressed his point with Senior Assistant Attorney General Richard C. Vorhis, who defended Virginia’s method of execution.
“If the real purpose is not to fight the death penalty, but a humane death,” Shedd asked, “why not give the inmate what he wants?”
Vorhis said he would have to discuss the issue with state officials. But if the method Hellman endorsed is scientifically sound, “I believe they would adopt it wholeheartedly,” he said.
When he stood for his rebuttal argument, Hellman said he had discussed the issue with his colleagues at the counsel table during Vorhis’ argument. If the state would agree to execute Emmett with a large dose of an anesthetic instead of the three-drug cocktail used in Virginia and most other states, “this case would go away,” Hellman said.
The 4th Circuit’s published opinions are binding in Maryland as well as Virginia, North and South Carolina and West Virginia.
The lethal injection index, with full coverage of Baze v. Rees, is here.
Mike Farrell's delightful memoir, Just Call Me Mike, is now available in trade paperback. He'll be in Austin on Saturday as part of his national book tour.
More info on the Book People event Saturday at 7:00 pm is here.
More events are here, including a stop tonight in Santa Fe and Taos, tomorrow.
An earlier post when the hardcover edition was printed is here.
That's the title of the fabulous Ruth Marcus' must-read column in today's Washington Post. LINK Here's the beginning.
The court stepped in, summarily overturning laws in 16 states. Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the "broader, organic purpose of a constitutional amendment."
Another example of "unelected judges" demonstrating "little regard for the authority of . . . the states" and "even less interest in the will of the people"? Of judges, unconstrained by constitutional text or history, turning to " 'emanations' . . . and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning"?
The case is Loving v. Virginia, the 1967 ruling in which a unanimous Supreme Court found that state laws prohibiting interracial marriage violated the constitutional guarantee of equal protection. The decision has been on my mind recently because of the death this month of Mildred Loving, the African American woman who dared to marry a white man and try to live with him in Virginia. Last week, I happened to listen to C-SPAN's riveting rebroadcast of the oral argument.
A few days before that program, John McCain delivered the tired broadside, quoted above, against activist judges. As my car radio crackled with the tinny voice of Virginia's lawyer urging the court not to usurp the state's "legitimate legislative objective of preventing the sociological and psychological evils which attend interracial marriages," I could not help but recall McCain's critique.
I'm not suggesting for a second that the presumptive Republican nominee opposes interracial marriage or disagrees with the ruling. My point, rather, is that the debate over the role of the judiciary deserves a far more nuanced approach than McCain's caricature of "the common and systematic abuse of our federal courts by the people we entrust with judicial power."
That's the title of commentary at Jurist by Rick Kirgis, secretary of the American Society of International Law. LINK
If the state of Texas goes ahead with the planned execution of José Ernesto Medellín without allowing him any judicial reconsideration of his murder conviction and his death sentence (to determine whether he was prejudiced by the Texas authorities’ failure to notify him of his right to contact the Mexican consulate after he was arrested), the United States will breach its obligation under the United Nations Charter and the Statute of the International Court of Justice (ICJ) to comply with the decision of the ICJ against the United States in the Avena case. In that case the ICJ held that the failure to provide review and reconsideration for Medellín and similarly-situated Mexican nationals convicted of murder in the United States was a violation of the Vienna Convention on Consular Relations (the Vienna Convention). Under the UN Charter and ICJ Statute, the ICJ decision is final and binding on the United States.
The ICJ in the Avena case said that the availability of a clemency process (in this instance, potentially by the governor of Texas) would not qualify as an appropriate means of undertaking the review and reconsideration. According to the ICJ, a judicial process is required.
It is immaterial for international law purposes that it is the state of Texas, rather than the federal government of the United States, that has failed to provide the required review and reconsideration.
Last week, a state district judge in Houston set an August 5 execution date for Jose Medellin, as noted in this post. More on Medellin I and Medellin II, via Oyez.org. Earlier coverage of Medellin v. Texas (Medellin II) is here.
That's the title of a post at BLT and report at NLJ by Pedro Ruz Gutierrez.
Reality is setting in. With time dwindling for President George W. Bush to get his nominees through, he's looking for compromise. Glen Conrad is just the latest example.
Last Thursday, Bush tapped Conrad, a U.S. district judge in Virginia's Western District, to fill one of the remaining Virginia vacancies on the 4th U.S. Circuit Court of Appeals. Conrad is the fifth appellate nominee this year and follows several others announced in breakthrough deals between the White House and the Senate.
Even Curt Levey of the conservative Committee for Justice acknowledges that tapping Conrad from a bipartisan list drawn up by Virginia Sens. Jim Webb and John Warner made sense. "It's so little time left that you really needed to get someone from the Webb-Warner list," Levey says.
Also last week, two consensus candidates for the 6th Circuit -- Michigan Court of Appeals Judge Helene White and Raymond Kethledge, a corporate defense lawyer at Bush Seyferth Kethledge & Paige in Troy, Mich. -- had their confirmation hearings. Virginia Supreme Court Justice G. Steven Agee, another nominee for the 4th Circuit, had his hearing May 1. And Catharina Haynes, a former Baker Botts partner in Dallas, was confirmed April 10 for a 5th Circuit seat.
Earlier coverage of federal judiciary appointments is here.
National Law Journal reports, "50 state bar presidents call for increase in legal aid funding."
The presidents of the 50 state bar associations are asking congressional leaders to increase legal aid funding for low-income Americans next year by 14%, partly because the housing crisis has pushed up demand for such services.
The presidents, in a letter to the House and Senate subcommittees that oversee funding for the Legal Services Corp., the federal agency tasked with distributing federal legal aid money to the states, asked the subcommittees to appropriate $400 million for fiscal year 2009, up from $350 million ultimately spent for fiscal year 2008. They argue in the letters that funding has dropped off since the mid 1990s not only because of lower appropriations, but also because of inflation.
The State from Columbia, South Carolina has, "Public defender hopes to aid less fortunate."
Being a public defender is not an easy task, but Doug Strickler would have it no other way.
“This is why I went to law school,” Strickler said shortly after being installed as the 5th Circuit’s public defender to represent poor defendants in Richland and Kershaw counties.
Raised in a middle-class military family, Strickler says it’s his responsibility to give back to others.
“I’m a child of the ’60s,” he said.
Nearly 100 people attended Strickler’s swearing-in ceremony, laughing and clapping as attorneys and judges told funny stories and heaped praise on the veteran public defender.
Circuit Judge G. Thomas Cooper spoke about the positive changes Strickler has made as the chief Richland County public defender, a job he has held since 2003.
“There has been a transformation in the way we do business around here,” Cooper said.
Strickler instituted a new case management system and has more than doubled the number of defense attorneys — to 31 from 13.
“I will tell you without fear of contradiction,” Cooper said, “Doug Strickler is the most dedicated public defender I have ever encountered.”
This post yesterday contained another article by State writer Ishmael Tate on the PD office in South Carolina.
The Supreme Court agreed to take the Virginia death penalty case yesterday, as noted in this post.
AP reports, "Court will decide case of Va. man on death row," via Google News.
The Supreme Court on Monday granted a temporary reprieve to a death row inmate in Virginia to consider whether lower courts correctly weighed his claim that his lawyer did a poor job of representing him.
Edward Nathaniel Bell, 40, had been facing execution in July for murdering a police officer.
Bell asked the court to step into his case, arguing that he could have been spared a death sentence if his lawyer had done a better job of representing him during the sentencing phase of his trial.
His execution was previously delayed by the Supreme Court's consideration of lethal injection procedures. The court upheld the execution method last month.
The justices said they would resolve an issue that has split federal appeals courts around the country.
Death row inmates may petition the federal system to review their cases after they have run out of appeals in state courts. Some appeals courts have deferred to state court rulings against the defendant, even when new evidence becomes available in the federal appeal. Other courts have taken the evidence into account.
Bell contends that the 4th U.S. Circuit Court of Appeals in Richmond was wrong when it determined that Virginia courts acted reasonably in turning down his claims. Bell argues that the state refused to consider evidence that could show he was deprived of adequate representation in violation of his constitutional rights.
The high court will hear arguments in the case in the fall.
In the Washington Post, Tom Jackman writes, "Court Stays Execution of Va. Man, Takes Case."
The appeals lawyers for Edward N. Bell also noted that federal courts are split on the issue of how to analyze whether the trial lawyers' defense was reasonably effective. The Supreme Court often takes cases to resolve such splits and accepted Bell's appeal, without comment, for oral arguments in the fall.
"For some time, there has been an anomaly in the law," said James G. Connell III of Fairfax, one of Bell's appeals lawyers. "Federal courts are expected to defer to state courts, when [in fact] the state court didn't have all the facts."
Bell's lawyers argue that the facts did not all come out until the case reached federal court, because Bell's original lawyers did not present any evidence about his life during the sentencing phase of the case.
In most criminal cases in Virginia, if a jury finds a defendant guilty, the case enters a sentencing phase. Prosecutors give additional evidence, to show that the defendant either committed a particularly vile crime or is a future danger to society. Defense lawyers typically give evidence that their client has had a difficult life or is not an evil person.
In death penalty trials, mitigation evidence produced by the defense is often seen as the most important part of the trial by defense lawyers, who are battling to save their clients' lives.
But Bell's lawyers decided not to introduce any evidence, and the Virginia Supreme Court and the U.S. Court of Appeals for the 4th Circuit found that to be a reasonable decision.
The Winchester Star reports, "Supreme Court to review Bell sentencing."
At issue is whether federal courts should consider new information that a lower court didn’t have in determining if the lower court ruled reasonably.
Specifically, the U.S. Supreme Court wants to ponder if the U.S. Fourth District Court of Appeals should consider testimony that the U.S. District Court of Western Virginia heard — but the Virginia Supreme Court didn’t — when the state Supreme Court ruled against a new sentencing hearing for Bell.
The state Supreme Court ruled in 2004 that Bell’s original attorneys Mark B. Williams and Jud A. Fishel should have provided a better defense during the sentencing phase of the original capital murder trial in 2001.
Williams and Fishel didn’t call a character witness supporting Bell during a seven-minute defense in the sentencing phase.
Northern Virginia Daily has three articles. First, "Bell execution delayed." It also has, "Bell's time on death row has cost the state nearly $350,000." Yesterday, before the cert grant, the paper reported, "Death row more solitary than standard prison life."
Michael Perlin of the New York Law School has posted, "Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions that Won't Go Away," at SSRN. Here's the abstract:
In Panetti v. Quarterman, the US Supreme Court expanded upon and clarified its earlier decision in Ford v. Wainwright, barring the execution of persons with mental disabilities who do not have a rational understanding of the reasons he is to be executed. The Panetti decision, however, has a second holding that may be equally important: that the failure to provide a defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts thus deprived him of his constitutionally adequate opportunity to be heard.
Both of these holdings leave open multiple questions that will likely be explored in subsequent cases (how severe does a mental illness have to be to qualify under this standard? how closely will it monitor the extent to which lower courts implement the new standard? To what extent does this decision augur a new level of comfort with expert testimony in other sorts of criminal proceedings). However, the Court chose not to address the question that many observers had thought was at the core of the case: whether a defendant can be medicated so as to make him competent to be executed? Does the Court's decision to not confront this question mean that it will never deal with such a case?
In this discussion of Panetti, I offer some possible answers to these questions.
The Scott Panetti index is here. Thanks to Saor Stetler for circulating.
The U.S. Supreme Court granted cert in the above-styled case today. Oral arguments have been completed for this term of the Court; Bell v. Kelly will be heard in the term that begins in October 2008. Lyle Denniston has this at SCOTUS Blog:
The Court agreed to hear one new case, an appeal by a death row inmate in Virginia, Edward Nathaniel Bell. The Court limited its review to the question of whether federal courts hearing a state prisoner’s habeas case must defer to state court findings even if the state court did not consider the specific evidence at issue. The case is Bell v. Kelly (07-1223). The case will be heard in the Term starting Oct. 6. In a separate order, Chief Justice John G. Roberts, Jr., ordered a delay in Bell’s execution, scheduled for July 24.
Bell’s appeal argued that there is a split in the federal Circuit Courts over the degree of deference to state courts, under federal habeas law, when the evidence was not considered by the state court and arose for the first time in a federal habeas hearing. The evidence in this case dealt with a claim that Bell’s case was harmed by the failure of defense lawyers to offer mitigating evidence on the death penalty issue.
The Tennessean reports, "With son on death row, House's mom became his crusader," written by Chris Echegaray.
In a bedroom of a white ranch-style home, Joyce House, mother of death row inmate Paul Gregory House, has a touch lamp on a night table next to a bed.
One tap and the lamp lights up. It's easily reachable for a man who has multiple sclerosis. The bed is raised high enough for Joyce House to help maneuver her son, who uses a wheelchair.
couple of paintings hang on the bedroom wall, a television is near the foot of the bed, set up with a DVD player — a technological advancement Paul House doesn't know about.
The bedroom is like the rest of the house: quiet, simple and immaculate.
After he spent 20-plus years behind bars for a 1985 murder, Joyce House was expecting her son to come home when a U.S. Supreme Court decision said a jury should have heard testimony that might have exonerated him and after a U.S. district judge ordered him released pending a new trial. But she will have to wait a couple of more weeks.
Paul House is still in the Lois M. DeBerry Special Needs Facility in Nashville awaiting a May 28 hearing that will set the conditions of his release.
As Paul House prepares to go home, Union County District Attorney General William Paul Phillips says he is preparing to retry House. The courts have said the prosecutor has 180 days to begin.
Echegaray also reported the earlier article, "Decision to retry Paul House is assailed by his lawyer."
An East Tennessee district attorney's decision to retry death row inmate Paul House is "personal" and a waste of taxpayer money, House's federal public defender says.
Stephen Kissinger says he will ask a federal judge not to give prosecutors more time to try House again for the 1985 murder of a Union County woman.
Judge Harry Mattice Jr. ruled in December that the inmate should be released or retried based on a U.S. Supreme Court ruling that a jury should have heard testimony that might have exonerated House.
On Monday an appeal of the judge's ruling was rejected by a three-judge panel of the 6th Circuit Court of Appeals.
Union County District Attorney General William Paul Phillips has 180 days from Monday to retry House, who has been in prison for more than 20 years. Phillips says he has enough evidence to try the case again and intends to handle the prosecution himself.
Kissinger said the trial would cost more than $100,000.
"You really have to be mystified, perplexed about that decision," he said. "It doesn't make sense. How can you justify that kind of money when you have the Supreme Court's decision?
Earlier coverage is here. More on House v. Bell, via Oyez, is here.
Paul House's case is one of those contained in Capital Punishment Stories, by Foundation Press as part of its Law Stories series. The book should be published later this year. Indiana University Law prof Joseph Hoffman presented the House case at UT Law's symposium on the book, noted in this post last year.
Ishmael Tate reports, "Indigent legal defense system to get overhaul," in the Rock Hill Herald.
South Carolina's patchwork system that provides attorneys to defendants who can't afford them is undergoing a multimillion-dollar transformation -- one that advocates say is long overdue.
More than eight in 10 of nearly 126,000 cases heard in the state's general sessions courts last year involved defendants unable to afford a lawyer, according to the S.C. Administrative Office of the Courts.
In some rural counties, the percentage of defendants represented by public defenders is as high as 95 percent, said Patton Adams, executive director of the S.C. Commission on Indigent Defense.
Indigent defense is important because each person charged with a crime has the constitutional right to adequate representation.
A system of 39 nonprofit agencies previously provided representation to indigent defendants in South Carolina's 46 counties. But critics say that system had become broken.
And:
South Carolina has lagged behind neighboring North Carolina and Georgia, which already have overhauled their state indigent defense systems, said Bob Spangenberg, president of Spangenberg Group, a consultant to justice systems across the country.
South Carolina's new system, he said, "really puts you in the mainstream of the movement that's been going on for the past 10 years."
The indigent defense index is here.
In North Carolina, the Charlotte Observer has an AP report, "Lowered expectations for NC legislative session this week."
When lawmakers return to work this week at the General Assembly, it'll be for a short session with lowered expectations.
After three consecutive years of passing landmark legislation - the state lottery in 2005, new ethics rules in 2006, and an overhaul of Medicaid spending in 2007 - nothing that weighty is on the horizon.
And with a small revenue surplus easing pressure to tinker with the budget, lawmakers are more likely to wrap up the "short session" in short order so they can get back home and start their general election campaigns.
And:
Democratic leaders also want to find some money to untangle North Carolina's mental health reform efforts, which have been mired in cost overruns and uneven services. They'll also back efforts to improve the state's probation and parole system after its shortcomings surfaced following the slaying of the student body president at the University of North Carolina at Chapel Hill.
The GOP wants to vote on ending the state's de facto death penalty moratorium, extended by legal battles over the role of a physician should play at executions. Senate Minority Leader Phil Berger, R-Rockingham, said they also want debate on legislation that would make it a separate crime to kill the unborn child if a pregnant woman.
But Republicans, who hold the lowest number of seats at the Legislature in a decade, will likely struggle again to pass be heard on policy unless they're working with strong bipartisan support.
North Carolina legislators convene Tuesday at noon.
Friday's Salt Lake City Tribune carried a report by Pamela Manson, "Critics blast death penalty measures."
Opponents of proposed constitutional amendments designed to streamline death penalty appeals said Thursday that the measures are too broad and would upset the balance of powers among the three branches of government.
The proposal could allow the Utah Legislature to eliminate the authority of judges to consider claims, after a certain time, that an inmate is innocent, Salt Lake City attorney Alan Sullivan told the Constitutional Revision Commission.
"It's important for courts to correct their mistakes," he said.
The proposal by the Utah Attorney General's Office to modify the state constitution would allow the Legislature to set limits on post-conviction relief petitions, a type of appeal.
A two-thirds vote by state lawmakers is required to put the measure on the 2010 ballot.
The Constitutional Revision Commission serves as an advisory body to the Legislature.
The changes would apply to post-conviction appeals in all criminal cases, but are aimed particularly at death penalty cases.
Thanks to Rick Halperin for circulating.
In Mississippi's Jackson Clarion Ledger, Marc Harrold writes the OpEd, "Supreme intervention? The Roberts Court and the death penalty."
While I am personally against capital punishment, it seems clear that the U.S. Constitution does not deem all state-sponsored executions to be "cruel and unusual" punishments.
The 5th Amendment to the Constitution ("incorporated" to the states by the 14th Amendment) states that an individual shall not "be deprived of life ä without due process of law." As such, if an individual is afforded due process, the Constitution clearly allows that same individual to be "deprived of life" (executed).
The Supreme Court has "sustained the death penalty for murder when imposed pursuant to the statutory procedures." The court further held that, "the death penalty is not invariably cruel and unusual within the meaning of the 8th Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime."
Inherent in this deprivation of life is the fact that some method has to be used. The government cannot simply wish people dead; it has to use some means to kill them. In a constitutional sense, therefore, capital punishment is not per se "cruel" and the determination of "cruel[ty]" is not outcome derivative; that any punishment that results in death is "cruel."
To predict the impact the (Chief Justice John) Roberts court will have on death penalty jurisprudence, we must categorize the different types of cases that have been, and are likely to be, heard by the Roberts court. These cases tend to address one of three questions: who can be executed (capacity), how can they be executed (method), and for which crimes can they be executed (proportionality)?
And:
The most difficult aspect of future death penalty jurisprudence to predict is the Roberts court's determination of proportionality, in other words, for which crimes is the sentence of death proportional to the crime itself? As seen above, the Supreme Court has clearly held that, when applied pursuant to certain safeguards, the death penalty is constitutional as punishment for murder.
But what about rape of a child? This is the issue that the Supreme Court will soon decide in Kennedy v. Louisiana. Is a Louisiana statute that allows for the death penalty as punishment for the rape of a child constitutional?
In 1977, in Coker v. Georgia, the Supreme Court held that a sentence of death was "grossly disproportionate" for the crime of raping an adult woman and therefore violated the 8th Amendment's prohibition against cruel and unusual punishment. In making its determination, the court subjectively determined that, while rape is a serious crime, "in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder." Based on what?
Harold is a visiting professor for the National Center for Justice and the Rule of Law at the University of Mississippi School of Law.
AP writer Mark Sherman has, "Follow year of division, Supreme Court avoids 5-4 splits," via Google News.
This could be the Supreme Court term, one court watcher joked recently, that Justice John Paul Stevens remembers he is a Republican.
A 1975 appointee of President Gerald Ford, Stevens is regarded as the anchor of the court's liberal wing. But he has joined with his more conservative colleagues in three high-profile cases that defied predictions they would showcase deep ideological divisions on the court.
Last term was marked by an unusually high number of 5-4 decisions, and many experts believed this term's notable cases would produce similar outcomes.
But the biggest cases decided so far — upholding lethal injection procedures, photo identification requirements for voters and Texas' treatment of a Mexican on death row — have had six or seven justices, including Stevens, in agreement on the outcome.
Just one case has been decided by a 5-4 vote. Two others split 4-4 with a justice not participating. Another was 5-3.
Taking stock of the court with half its decisions still to come is a bit like wrapping up a sporting event at halftime. So far, however, Stevens' voting pattern and the lack of 5-4 decisions stand out.
With roughly three dozen cases left to decide — including the rights of foreigners detained at Guantanamo, Washington's handgun ban and the death penalty for raping a child — the court has plenty of time to revert to its recent pattern of ideological division and Stevens could end up breaking with the conservatives frequently.
And:
Supreme Court cases are important not just to those involved in the dispute before the court, but to other similarly situated parties and judges who look to the court for guidance.
"In these key cases, they have not given lower courts, legislators or lawyers a clear sense of what is the rule of law to be followed and applied," said Erwin Chemerinsky, a Duke University law professor.
Roberts has spoken of his desire to have the court decide cases narrowly, but clearly. Chemerinsky said the absence of those kinds of outcomes is not a criticism of the chief justice, but a recognition that he is one of nine strong personalities.
Last term, the liberal justices were vocal in their frustration with the outcomes of the big cases. Stevens and Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter each read at least one dissent from the bench — a practice that usually happens once or twice a term for the entire court.
No one has read a dissent yet, although that too could change as the term nears its end.
"I wouldn't be surprised that if a lot of what remains on the docket comes down 5-4," Chemerinsky said.
Monica Mercer of the Chattanooga Free Press Times reports, "Stevens addresses lethal injections."
Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row.
“I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.
Yet just three weeks ago, the Supreme Court ruled that Kentucky’s use of that cocktail on death row did not constitute cruel and unusual punishment. Justice Stevens concurred with the court’s decision, but conceded his opinion would “generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.”
Justice Stevens talked about the lethal injection case and other recent Supreme Court decisions as he addressed an audience of legal professionals at the Chattanooga Convention Center during the last evening of the 68th conference of the U.S. Court of Appeals for the 6th Circuit. Justice Stevens presides over the 6th Circuit in his position on the Supreme Court.
Held in Chattanooga this year for the first time, the conference drew almost 50 federal judges and more than 800 attendees who practice law in the sixth circuit, which has jurisdiction in Tennessee, Kentucky, Ohio and Michigan.
An AP dispatch, "Justice contrasts two types of deaths," via the Fort Worth Star-Telegram.
Supreme Court Justice John Paul Stevens says the euthanized Kentucky Derby horse Eight Belles probably died more humanely than Death Row prisoners do.
Stevens spoke Friday night a month after he voted with a majority of the Supreme Court to approve the most widely used method of lethal injection. At time of his vote he said for the first time that he now believes that the death penalty is unconstitutional but that that was not the case to rule on that issue.
According to the Chattanooga Times Free Press, Stevens told an audience of 50 federal judges and more than 800 attorneys at the 68th conference of the 6th U.S. Circuit Court of Appeals that he checked into the procedure used to kill Eight Belles and was surprised to learn that it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many states, including Kentucky, use to execute prisoners. Stevens drew a round of applause for the comments.
The lethal injection index, with full coverage of Baze v. Rees, is here.
That's the title of an editorial in Sunday's Dallas Morning News. LINK
A poignant drama unfolded in the state Capitol last week that should have been witnessed by all Texans.
Nine men at a head table in the Senate chamber looked out at a sea of faces and shared stories of lost freedom. Unjustly convicted in Texas courts, each was locked away in prison until the truth of his innocence was established, most of them through DNA tests.
The first to speak, James Lee Woodard, lost 27 years after the travesty of a wrongful conviction in Dallas County. Brandon Moon spoke of his lost 17 years. And Charles Chatman, 27 years. James Curtis Giles, 10 years. Carlos Lavernia, 15 years. Alejandro Hernandez, 13 years. Billy James Smith, 19 years. James Waller, 10 years. Thomas McGowan Jr., 23 years.
Some told their stories with passion and resolve, others with sadness. The facts chill to the bone. They reveal how scant or sketchy evidence, faulty witness identification, faulty forensics and gamesmanship by prosecutors helped railroad innocent people – and let the guilty get away.
"It was a nightmare," said Mr. McGowan, erroneously picked out of a photo lineup by a rape victim in Richardson in 1985. "It could happen to your kids; it could happen to you."
Lawmakers in Texas must do something about that ghastly possibility. Eight lawmakers were in the audience Thursday to hear the testimonials of the exonerated men. Also attending were legal experts, judges, police brass and other law enforcement officials.
They gathered at the invitation of Sen. Rodney Ellis of Houston, who has championed the formation of a state innocence commission to dissect cases of exonerated people and recommend ways to improve the system. The concept is a sound one and has been adopted by at least five states.
And:
A state innocence commission could recommend best practices in these areas:
•Eyewitness identification and testimony
•Photo lineups
•Suspect interrogation
•Preservation of biological evidence
•Forensic technology
•Defendant's access to case files
•The right to competent defense counsel
•Ethical and legal responsibilities of prosecutors
Coverage of Thursday's Summit on Wrongful Convictions is here.
That's the title of an editorial in today's Houston Chronicle, subtitled, "Too many Americans, especially those who reside in Harris County, are behind bars."
ACCORDING to data maintained by the International Center for Prison Studies at King's College London, the United States has 2.3 million people behind bars — more than any other country. China, with four times the population, imprisons only 1.6 million criminals (not counting hundreds of thousands of political prisoners).
The U.S. incarceration rate, 751 prisoners per 100,000 in population, is about six times the median rate for other countries.
In few places is this appalling and embarrassing condition more manifest than in Texas, which has the second-highest number of prisoners behind California, and the second-highest incarceration rate behind Louisiana.
Holding 10,245 inmates as of midnight Tuesday, the Harris County Jail is so crowded that Sheriff Tommy Thomas has already sent 600 inmates to a lockup in Louisiana and will be sending 1,130 more to facilities in that state.
The Texas Commission on Jail Standards recently found the Harris County Jail in compliance with all applicable standards. However, the jail is certified to hold only 9,400 inmates, almost 2,000 fewer than have been recently crowded into its four facilities.
And:
A large part of the jail overcrowding problem resides with the elected judges here. They don't make good use of pre-trial release and other jail diversion programs that allow minor, nonviolent offenders to return to their jobs and families while awaiting trial.
Some judges set up defendants to fail, making the terms of their probation so onerous that successful completion is unlikely. A minor infraction can send a probationer back to jail and then to prison to serve a long sentence.
The Legislature is also to blame. Over the years it has made too many minor offenses felonies. Judges are allowed to set high, unattainable bail, dooming many indigent inmates to months or years of jail time before they have a chance to make their case in court.
The AP dispatch, written by Jeff Carlton,"Wrongly convicted gather at Capitol to share stories," via the San Antonio Express-News.
One by one, nine wrongly convicted men stood up on the floor of the Texas Senate on Thursday to explain how innocent men ended up in prison and how to prevent it from happening again.
"I'm here to tell you I lost everything. I am still hurting. I am still broken," said James Giles, who spent 10 years in prison for a rape he did not commit. "We can do better in the justice system. The system failed all of us."
A week after a man who spent 27 years in prison became the 18th Dallas County man since 2001 to have his conviction tossed aside after DNA testing, state officials and men who lost years of their lives behind bars met in the Capitol to discuss what they said was Texas' "disturbing number of wrongful convictions."
The event was billed as the nation's first "Summit on Wrongful Convictions." It brought together lawyers, police chiefs, judges and lawmakers, who sought to identify systemic problems that could be addressed through changes in law.
Since 2001, DNA testing has cleared 33 Texans who spent a combined 427 years in prison, according to The Justice Project, a Washington, D.C.-based group. Eyewitness misidentification was a factor in 27 of those cases, easily the most common link.
State Sen. Rodney Ellis, D-Houston, said he will sponsor a bill during next year's legislative session that would mandate police departments use specific procedures when presenting live lineups or photo arrays to eyewitnesses. Several of the men who were wrongly convicted talked about how an incorrect identification by an eyewitness was a key factor in their false convictions.
"Exonerated inmates urge criminal justice changes in Texas," is Max Baker's report in the Fort Worth Star-Telegram:
State Sen. John Whitmire, chairman of the powerful Criminal Justice Committee, also attended, saying that he gets 300 letters a month from inmates seeking help and that many of them have a valid complaint.
The Houston Democrat said what "keeps him up at night" is that Harris County sends the most people to prison and to Death Row.
"Nothing is more important than clearing the wrongfully convicted," he said.
And:
Here are a few criminal-justice bills that have been introduced in the Legislature but did not pass:
Capital defender office -- Establish an office to handle all Death Row inmates' appeals.
Innocence Commission -- Create a nine-member commission to evaluate wrongful-conviction cases to try to determine what went wrong.
Eyewitness identification -- Establish guidelines for photo lineups, including not allowing the supervising case officer to attend.
Taping interrogations -- Require law enforcement agencies to record video or audio of interrogations.
Witness inducement -- Require law enforcement officials to report when witnesses have received payment or a reduced sentence in return for testimony.
Open files -- Require district attorneys to release certain evidence to the defendant within 30 days of indictment.
R.G. Ratcliffe has, "Nine who were wrongly convicted plead for reform," in the Houston Chronicle. The San Antonio Express-News carries his report, as well; both are Hearst-owned papers.
Nine wrongfully convicted men who spent a collective 148 years in Texas prisons met with a select group of prosecutors, judges and police chiefs in the Senate chamber Thursday to urge the state to establish a commission to investigate claims of innocence.
"I'm crying out for mercy today for someone who may still be in prison," said James Curtis Giles, who served 10 years in prison for rape before DNA testing proved him innocent.
State Sen. Rodney Ellis, D-Houston, has been leading the effort to have an "innocence commission" formed in Texas. Ellis told the gathering that he has asked Gov. Rick Perry and other state leaders to establish such a commission but has not heard back from them.
Perry's top criminal justice adviser, Mary Anne Wiley, said the governor shares Ellis' concerns on issues such as improving the legal defense for people on trial and separating control of crime laboratories from the control of police departments. But she said he does not want to create another layer of government in the criminal justice system.
News 8 Austin has, "Exonerees, lawmakers meet to address wrongful convictions. Streaming video of the report is at the link.
Thursday marked James Woodard's ninth day of freedom after 27 years behind bars for a murder he did not commit.
The Dallas native was joined by eight other exonerated men who spoke with lawmakers and judges.
Carlos Lavernia, formerly labeled Austin's "Barton Creek Rapist," was another of the wrongly convicted. Twenty years into his 99-year sentence, a DNA test proved Lavernia's innocence.
"I feel great because now I can breathe the air, fresh air," Lavernia said.
My live blog of the Summit is here. Earlier coverage is here. Archived streaming video of the Summit should be posted soon at the Texas Senate website, here. You must use Real Player, and can download a free version if you do not already have it on your computer.
I'll be live blogging Senator Rodney Ellis' Summit on Wrongful Convictions. It's just starting with Senator Ellis making introductory comments and recognizing the dozen or so House and Senate members attending the Summit.
The Summit is being webcast, here, on channel 1.
A group of nine exonerees is at a front table. James Lee Woodard just started, as they introduce themselves. Every one of these stories is a powerful testimony to flaws that led to wrongful convictons.
The thirty-one desks in the Senate chamber are filled with legislators, judges from the Court of Criminal Appeals, law enforcement personnel, staff from innocence projects, policy makers, judges, State Bar of Texas officials (former SBoT President Martha Dickie), and criminal justice reform advocates(Edwin Colfax and Andrea Marsh) . District Attorneys Barry Macha of Wichita Falls and Craig Watkins are also present. Travis County's next DA, Rosemary Lehmberg, is also here.
Exonerees are still talking on-by-one and discussing specific reforms such as eyewitness identification procedures and improvements to Texas' post-conviction DNA testing access that would have helped prevent their wrongful convictions or led to earlier exonerations.
Media outlets are present, including Elise Hu, KVUE-TV's Capitol reporter, so I expect to see lots of print and broadcast coverage. News 8 Austin, Time-Warner cable's local Austin news channel is also here. (1:50 pm)
The exonerees have finished, and Senator Ellis is about to recognize Barry Scheck, co-founder of the New York-based Innocence Project, to speak. (2:01 pm) Among other best practices, he just mentioned the Tarrant County District Attorney's office open-file policy and the need for better discovery in Texas. (2:11 pm)
Craig Watkins will be speaking after Scheck. (2:05 pm)
Watkins is speaking now. (2:23 pm)
Senator Ellis is now opening the forum to discussion and he's called on CCA Judge Barbara Hervey. CCA Judge Cheryl Johnson is also here. (2:31 pm)
Senator John Whitmire, Dean of the Senate and Chair of Senate Criminal Justice, is speaking now. (2:33 pm) He is delivering a serious, hard-edged message to his colleagues about the need to pass reforms, and urging his colleagues to do a better job of reading their mail and actively investigate credible cases that are submitted by constituents.
He also expressed his frustration of being an official from Harris County who has been unable to prod the Harris County DA's office to become more active in examining wrongful convictions. Assistant DA Roe Wilson is here from that office. He lauded Craig Watkins for, "doing the right thing." (2:43 pm)
New Austin Police Chief Art Acevedo is speaking now. (2:44 pm)
Edwin Colfax of the Justice Project is talking about eyewitness id reforms. (2:53 pm) The last link is to a Justice Project publication on the topic.
Harris County ADA Roe Wilson is about to speak. The office has had a very rocky road for years now, ever since the beginning of the HPD crime lab scandal. Earlier this year, DA Chuck Rosenthal resigned in disgrace due to inappropriate e-mailing that involved his political campaign and non-office matters. (3:03 pm) She is describing the office's current relationship with the Innocence Project. She mentioned that the office has been reviewing all Chapter 64 (of the Texas Code of Criminal Procedure; access to post-conviction DNA testing) requests for post-conviction DNA testing, including those that had been rejecting by Texas courts.
Senator Whitmire is pressing her on the office's review of convictions where questions have been raised. 3:09 pm)
State Rep. Terri Hodge, a resolute advocate for the incarcerated, is speaking now about the problems of prosecutorial misconduct. (3:10 pm)
Houston Police Chief Harold Hurtt just spoke.
I had to step away for a few minutes to answer some questions from a reporter. Senator Bob Deuell just spoke. A number of people are making brief comments now, including Walker County DA David Weeks and Innocence Project of Texas director Jeff Blackburn. (3:35 pm)
State Rep. Jim McReynolds is speaking now about working on legislation in the House last session. (3:48 pm)
It sounds as if Senator Ellis hopes to close the Summit in about 15 minutes, at 4:00 pm. A very powerful statement that the Legislature needs to do what's right.
Mary Anne Wiley, one of Governor Perry's key criminal justice advisors in his General Counsel's office, is speaking now about some past collaborative work involving the Governor's office, legislators, and advocates and looking to future work. (3:51 pm)
An exoneree closed the Summit with a statement about the need for jobs and support.
The Summit should be available at Senate Media Services for archival viewing, here.
Fort Worth Star-Telegram editorial board member and columnist Linda Campbell has, "McCain's half-truths about judges."
John McCain ought to be ashamed of himself.
In his most pandering performance since speaking at Jerry Falwell's Liberty University to prove that he could schmooze even with agents of intolerance as long as they bring along Republican votes, McCain whacked away this week at that threadbare straw man, the "activist judge."
Speaking at Wake Forest University, he harrumphed about "the common and systematic abuse of our federal courts by the people we entrust with judicial power."
"For decades now," he claimed, "some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
And then he complained about lifetime-tenured judges who "show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people."
Well, here are some inconvenient details.
There are news reports on the lethal injection today from Texas, Arkansas, and Nevada. The Fort Worth Star-Telegram carries Mike Graczyk's AP dispatch, "Aug. 14 execution date for Texas 7 member."
One of the infamous "Texas 7" convicts who escaped from a state prison more than seven years ago and killed a Dallas-area police officer while on the lam now has an execution date.
Michael Rodriguez has been set for lethal injection Aug. 14, Kim Schaefer, a Dallas County assistant district attorney who handles capital cases, said Wednesday.
Rodriguez, 45, ordered his appeals dropped and had been asking the courts for nearly two years to give him a death date.
A federal judge signed off on Rodriguez's request Sept. 27, two days after the U.S. Supreme Court agreed to consider a Kentucky challenge to lethal injection as a means of capital punishment. That case stalled executions around the nation. But in a decision last month, the high court ruled lethal injection was not unconstitutionally cruel, clearing the way for capital punishment to resume.
The Pine Bluff Commercial carries the AP report, "Death-row inmate challenges lethal injection plans."
A death-row inmate who may be the next person scheduled to die in Arkansas after a U.S. Supreme Court ruling upheld lethal injection has challenged the state's plans to carry out the death penalty under a revised protocol.
Frank Williams Jr. filed a lawsuit in Pulaski County Circuit Court, saying state officials violated state law by adopting new regulations without giving the public notice and an opportunity to comment on proposed revisions.
Williams is seeking a court ruling that the revised Arkansas plan is invalid and should not be enforced.
And:
Chief Deputy Attorney General Justin Allen would not describe the changes but said they would not involve the three drugs used, their amounts or the order in which they are administered. State prison spokeswoman Dina Tyler described the changes as minor.
Tyler said last week that the changes included requiring at least two years of medical experience for those on the team inserting the intravenous lines and administering the drugs to the condemned inmate. Tyler said the policy also would be reworded to say the drugs would be "mixed according to manufacturer's directions."
Earlier coverage of the issue in Arkansas is in this post.
The Nevada Appeal has an AP dispatch, "Inmate joins legal challenge to execution procedure."
Condemned inmate William Castillo, who until now has declined to file appeals that could keep him alive, joined Wednesday in a state Supreme Court challenge of Nevada's lethal injection execution procedure.
The move by Castillo, represented by federal public defenders Mike Pescetta and Gary Taylor, was welcomed by the American Civil Liberties Union of Nevada, which had filed the challenge in October when Castillo was scheduled to die.
"This is a total surprise to us," said Lee Rowland of the Nevada ACLU, adding, "We're very glad that our lawsuit gave Mr. Castillo the time to reconsider and decide not to volunteer for the death penalty."
The state Supreme Court stayed Castillo's execution pending the U.S. Supreme Court's decision on lethal injections in Kentucky. Last month, the U.S. Supreme Court upheld Kentucky's execution method, which is similar to Nevada's. Since then, the Nevada stay has remained in effect.
The lethal injection index, with full coverage of Baze v. Rees, is here.
Senator Rodney Ellis convenes a Summit on Wrongful Convictions at 1:00 p.m. (CDT) today in the Texas Senate Chamber.
The Summit will be webcast by Senate Media Services,