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in October
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Today's
Stories
September 12, 2003
Writers Block
Todos
Somos Lee: Protest and Death in Cancun
Laura Carlsen
A Knife to the Heart: WTO Kills Farmers
Dave Lindorff
The Meaning of Sept. 11
Elaine Cassel
Bush at Quantico
Linda S. Heard
British
Entrance Exams
John Chuckman
The First Two Years of Insanity
Doug Giebel
Ending America as We Know It
Mokhiber / Weissman
The Blank Check Military
Subcomandante Marcos
The
Death Train of the WTO
Website of the Day
A Woman in Baghdad
Recent Stories
September 11, 2003
Robert Fisk
A Grandiose
Folly
Roger Burbach
State Terrorism and 9/11: 1973 and 2001
Jonathan Franklin
The Pinochet Files
Niranjan Ramakrishnan
Postcards to the President
Norman Solomon
The Political Capital of 9/11
Saul Landau
The Chilean Coup: the Other, Almost Forgotten 9/11
Stew Albert
What Goes Around
Website of the Day
The Sights and Sounds of a Coup
The Great Alejandro Escavedo Needs Your Help!
September 10, 2003
John Ross
Cancun
Reality Show: Will It Turn Into a Tropical Seattle?
Zoltan Grossman
The General Who Would be President: Was Wesley Clark Also Unprepared
for the Postwar Bloodbath?
Tim Llewellyn
At the Gates of Hell
Christopher Brauchli
Turn the Paige: the Bush Education Deception
Lee Sustar
Bring the Troops Home, Now!
Elaine Cassel
McCain-Feingold in Trouble: Scalia Hogs the Debate
Norman Finkelstein
Hitchens
as Model Apostate
Hammond Guthrie
When All Was Said and Done
Website of the Day
Fact Checking Colin Powell
September 9, 2003
William A. Cook
Eating
Humble Pie
Robert Jensen / Rahul
Mahajan
Bush
Speech: a Shell Game on the American Electorate
Bill Glahn
A Kinder, Gentler RIAA?
Janet Kauffman
A Dirty River Runs Beneath It
Chris Floyd
Strange Attractors: White House Bawds Breed New Terror
Bridget Gibson
A Helping of Crow with Those Fries?
Robert Fisk
Thugs
in Business Suit: Meet the New Iraqi Strongman
Website of the Day
Pot TV International
September 8, 2003
David Lindorff
The
Bush Speech: Spinning a Fiasco
Robert Jensen
Through the Eyes of Foreigners: the US Political Crisis
Gila Svirsky
Of
Dialogue and Assassination: Off Their Heads
Bob Fitrakis
Demostration Democracy
Kurt Nimmo
Bush and the Echo Chamber: Globalizing the Whirlwind
Sean Carter
Thou Shalt Not Campaign from the Bench
Uri Avnery
Betrayal
at Camp David
Website of the Day
Rabbis v. the Patriot Act
September 6 / 7, 2003
Neve Gordon
Strategic
Abuse: Outsourcing Human Rights Violations
Gary Leupp
Shiites
Humiliate Bush
Saul Landau
Fidel
and The Prince
Denis Halliday
Of Sanctions and Bombings: the UN Failed the People of Iraq
John Feffer
Hexangonal Headache: N. Korea Talks Were a Disaster
Ron Jacobs
The Stage of History
M. Shahid Alam
Pakistan "Recognizes" Israel
Laura Carlson
The Militarization of the Americas
Elaine Cassel
The Forgotten Prisoners of Guantanamo
James T. Phillips
The Mumbo-Jumbo War
Bill Glahn
RIAA Watch: Slumlords of the Internet
Walter A. Davis
Living in Death's Dream Kingdom
Adam Engel
Midnight's Inner Children
Poets' Basement
Stein, Guthrie and Albert
Book of the Weekend
It Became Necessary to Destroy the Planet in Order to Save It
by Khalil Bendib
September 5, 2003
Brian Cloughley
Bush's
Stacked Deck: Why Doesn't the Commander-in-Chief Visit the Wounded?
Col. Dan Smith
Iraq
as Black Hole
Phyllis Bennis
A Return
to the UN?
Dr. Susan Block
Exxxtreme Ashcroft
Dave Lindorff
Courage and the Democrats
Abe Bonowitz
Reflections on the "Matyrdom" of Paul Hill
Robert Fisk
We Were
Warned About This Chaos
Website of the Day
New York Comic Book Museum
September 4, 2003
Stan Goff
The Bush
Folly: Between Iraq and a Hard Place
John Ross
Mexico's
Hopes for Democracy Hit Dead-End
Harvey Wasserman
Bush to New Yorkers: Drop Dead
Adam Federman
McCain's
Grim Vision: Waging a War That's Already Been Lost
Aluf Benn
Sharon Saved from Threat of Peace
W. John Green
Colombia's Dirty War
Joanne Mariner
Truth,
Justice and Reconciliation in Latin America
Website of the Day
Califoracle
September 3, 2003
Virginia Tilley
Hyperpower
in a Sinkhole
Davey D
A Hip
Hop Perspective on the Cali Recall
Emrah Göker
Conscripting Turkey: Imperial Mercenaries Wanted
John Stanton
The US is a Power, But Not Super
Brian Cloughley
The
Pentagon's Bungled PsyOps Plan
Dan Bacher
Another Big Salmon Kill
Elaine Cassel
Prosecutors Weep' Ninth Circuit Overturns 127 Death Sentences
Uri Avnery
First
of All This Wall Must Fall
Website of the Day
Art Attack!
September 2, 2003
Robert Fisk
Bush's
Occupational Fantasies Lead Iraq Toward Civil War
Kurt Nimmo
Rouind Up the Usual Suspects: the Iman Ali Mosque Bombing
Robert Jensen / Rahul Mahajan
Iraqi Liberation, Bush Style
Elaine Cassel
Innocent But Guilty: When Prosecutors are Dead Wrong
Jason Leopold
Ghosts
in the Machines: the Business of Counting Votes
Dave Lindorff
Dems in 2004: Perfect Storm or Same Old Doldrums?
Paul de Rooij
Predictable
Propaganda: Four Monts of US Occupation
Website of the Day
Laughing Squid
August 30 / Sept. 1,
2003
Alexander Cockburn
Handmaiden
in Babylon: Annan, Vieiera de Mello and the Decline and Fall
of the UN
Saul Landau
Schwarzenegger
and Cuban Migration
Standard Schaefer
Who
Benefited from the Tech Bubble: an Interview with Michael Hudson
Gary Leupp
Mel Gibson's Christ on Trial
William S. Lind
Send the Neocons to Baghdad
Augustin Velloso
Aznar: Spain's Super Lackey
Jorge Mariscal
The Smearing of Cruz Bustamante
John Ross
A NAFTA for Energy? The US Looks to Suck Up Mexico's Power
Mickey Z.
War is a Racket: The Wisdom of Gen. Smedley Butler
Elaine Cassel
Ashcroft's Traveling Patriot Show Isn't Winning Many Converts
Stan Cox
Pirates of the Caribbean: the WTO Comes to Cancun
Tom and Judy Turnipseed
Take Back Your Time Day
Adam Engel
The Red Badge of Knowledge: a Review of TDY
Adam Engel
An Eye on Intelligence: an Interview with Douglas Valentine
Susan Davis
Northfork,
an Accidental Review
Nicholas Rowe
Dance
and the Occupation
Mark Zepezauer
Operation
Candor
Poets' Basement
Albert, Guthrie and Hamod
Website of the Weekend
Downhill
Battle
Congratulations
to CounterPuncher Gilad Atzmon! BBC Names EXILE Top Jazz CD
August 29, 2003
Lenni Brenner
God
and the Democratic Wing of the Democratic Party
Brian Cloughley
When in Doubt, Lie Your Head Off
Alice Slater
Bush Nuclear Policy is a Recipe for National Insecurity
David Krieger
What Victory?
Marjorie Cohn
The Thin Blue Line: How the US Occupation of Iraq Imperils International
Law
Richard Glen Boire
Saying Yes to Drugs!
Bister, Estrin and Jacobs
Howard Dean, the Progressive Anti-War Candidate? Some Vermonters
Give Their Views
Website of the Day
DirtyBush
Hot Stories
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
William Blum
Myth
and Denial in the War on Terrorism
Standard Schaefer
Experimental Casinos: DARPA and the War Economy
Uzma
Aslam Khan
The Unbearably Grim Aftermath of War:
What America Says Does Not Go
Paul de Rooij
Arrogant
Propaganda
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click Here
for More Stories.
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September
13, 2003
Dead
Wrong or Right On?
The
Supremes, Juries and the Death Penalty
By ELAINE CASSEL
On September 2, the U.S. Court of Appeals for
the Ninth ruled in Summerlin v. Stewart that past death sentences
imposed by judges, rather than juries, must be set aside. The
decision could lead to the resentencing of as many as 122 prisoners
in six death penalty states within the Circuit where judges impose
criminal sentences: Arizona, Colorado Idaho, Montana, Nevada,
and Idaho.
The decision was a logical--indeed, an
inevitable--outgrowth of two recent Supreme Court decisions.
But that hasn't stopped the Attorney General of Arizona from
seeking U.S. Supreme Court review. Other attorneys general from
affected states may join him.
If it grants review, the U.S. Supreme
Court should affirm the Ninth Circuit's well-reasoned opinion.
Its prior rulings demand it.
The Summerlin Case
Itself:
An Illustration of the Death Penalty Gone Wrong
Summerlin's case was "stranger than
fiction," to quote the majority opinion. "It is the
raw material from which legal fiction is forged: A vicious murder,
an anonymous psychic tip, a romantic encounter that jeopardized
a plea agreement, an allegedly incompetent defense, and a death
sentence imposed by a purportedly drug-addled judge."
Summerlin is functionally retarded. He
suffers from organic brain dysfunction and poor impulse control.
It seems inconceivable that he could have meaningfully assisted
in his own defense. In light of his mental state, it is cruel
to impose the death penalty upon him--an issue the U.S. Supreme
Court has separately addressed in Atkins v. Virginia.
Summerlin's judge was later disbarred
for drug addiction, and may well have been affected by that addiction
during the case.
The prosecutor had initially been willing
to accept Summerlin's plea of guilty and to recommend a long
prison term. This was during the time frame in which Summerlin's
public defender had sex with the prosecutor, a bizarre fact that
remained undisclosed for some time and that ultimately led to
her withdrawal from the case late in the proceedings.
In spite of the plea agreement, the judge
indicated that he might ignore the sentencing recommendation
and impose a higher sentence. Summerlin withdrew his guilty plea.
When Summerlin was convicted by a jury, the judge who had sabotaged
Summerlin's plea imposed the death penalty--for Arizona places
the penalty phase of a criminal trial in the hands of the judge.
It was this procedure that the Supreme Court had rejected in
a prior case.
Unsurprisingly, throughout the trial,
as the Ninth Circuit's opinion describes, confusion reigned.
Later, Summerlin's appellate counsel argued that his substitute
trial counsel, called into a complex case with the highest stakes
at the last minute, was not able to provide the effective assistance
of counsel the Sixth Amendment guarantees. The Ninth Circuit
rejected this contention, however, but reversed the sentence
of death.
The Decisions Upon
Which the Ninth Circuit's Summerlin Decision Was Based
In 2000, in Apprendi v. New Jersey, the
Court held that juries--not judges--must decide beyond a reasonable
doubt every fact that leads to the imposition of an increased
penalty for the defendant.
Apprendi affirmed one of the most fundamental
principles of our system--that every criminal defendant has a
right to a jury trial. Conservative and liberal justices alike
joined in the outcome, including Justices Thomas and Scalia.
Scalia stressed that the Sixth Amendment right to a jury trial
"has no intelligible content unless it means that all the
facts which must exist in order to subject the defendant to a
legally prescribed punishment must be found by the jury."
Then, in 2002, in Ring v Arizona, applying
the same logic, the Court held that juries must determine the
factual bases for death sentences in particular. Again, Justices
Scalia and Thomas voted with the majority. The result of the
Court's holding was to invalidate Arizona's, as well as other
states' death penalty systems--which had previously allowed only
judges to impose the death penalty.
Together, the two decisions plainly hold
that judges cannot make factual findings that lead to a sentence
of death. Compared to life imprisonment, or virtually any other
penalty, a death sentence is an increased penalty. And under
Apprendi, a jury thus must find the facts supporting an increased
penalty. Moreover, if there was ever any doubt that Apprendi
applied in the death penalty context, Ring certainly resolved
it.
The Retroactivity
Issue:
The Basis for the Petition for Supreme Court Review
So what could the basis for the current
petition for Supreme Court review be? Hasn't the Court already
resolved this question? Plainly, Summerlin's judge-imposed death
sentence was unconstitutional. So he can't be executed, right?
Not according to the attorney generals.
They will argue that the Court's decisions are not retroactive,
so that past death sentences can stand. The Arizona Supreme Court
has been equally recalcitrant. It ruled that Ring should not
be applied retroactively to its death row prisoners. So has the
Nevada Supreme Court, and the U.S. Court of Appeals for the Eleventh
Circuit.
The Ninth Circuit disagreed. It held
that the mandate of Ring must be applied retroactively. Significantly,
the issue was not close: It drew agreement from eight of eleven
federal judges on the en banc panel. (An "en banc"
panel represents a larger portion of the Circuit's sitting judges
than an original three-judge panel.)
The key modern U.S. Supreme Court decision
that provides guidance on whether a constitutional ruling that
changes the law must be retroactively applied is Teague v. Lane.
Under Teague, a court must ask whether the decision was merely
procedural, or a substantive one that affected the fundamental
structure of criminal proceedings.
In Summerlin, the Ninth Circuit, having
properly asked this question, found that Ring was plainly substantive,
in the deepest sense. The majority reasoned correctly that Ring
did more than alter "who decides" death." It also
"restructured Arizona law and it redefined, as a substantive
matter, how that law operates."
The Ninth Circuit was absolutely right.
If you doubt it, recall that liberal and conservative Justices
alike agreed--and expressed in their Apprendi opinions--how very
fundamental and basic is the principle that juries, not judges,
must find sentence-determining facts.
The "juries must find facts"
rule Apprendi set forth was no mere procedural quirk. According
to even Justice Scalia--no friend of the criminal defendant--it
was a truth without which the Sixth Amendment right to a jury
trial "has no intelligible content." One could hardly
imagine a statement more passionately stressing the importance
of this rule--and this is just the rule that Ring applied.
The majority of the Ninth Circuit judges
believed that the constitutional reach of Ring was so great that
the decision must be applied retroactively to all condemned men
on the death rows within its jurisdiction. As concurring Judge
Stephen Reinhardt pointed out in his impassioned opinion, "[I]f
our society truly honors its constitutional values, it will not
tolerate the execution by the state of individuals whose capital
sentences were imposed in violation of their constitutional rights.
It should not take a constitutional scholar to comprehend that
point."
After all, imagine the alternative--as
Reinhardt did all too clearly. He described a system in which
"prisoners [would] be executed by the state solely because
of the happenstance that the Supreme Court recognized the correctness
of their constitutional arguments too late--on a wholly arbitrary
date, rather than when it should have. . . ."
In addition, he asked, "Will we
add to all of the other arbitrariness infecting our administration
of the death penalty the pure fortuity of when the Supreme Court
recognized its own critical error with respect to the meaning
of the Constitution?Can we justify executing those whose legal
efforts had reached a certain point in our imperfect legal process
on the day the Supreme Court changed its mind, while invalidating
the death sentences of those whose cases were waiting slightly
further down the line?"
Justice so arbitrary is antithetical
to a free society. It is antithetical to America's legal system,
which strives for both justice and fairness. And it is antithetical
to the Constitution.
Why the Added "Burden"
Of Summerlin Isn't Really a "Burden" At All
It's true that, as the Ninth Circuit
dissenters pointed out, that honoring the right to jury--not
judge--factfinding for death penalty defendants will impose burdens
on states where prisoners have, at least temporarily, suffered
a reprieve. But these burdens derive from Ring, not from the
Ninth Circuit's decision in Summerlin.
Incredibly, the Summerlin dissent complains
that since Ring invalidated five States' death penalty systems,
Summerlin might lead all 168 prisoners on death row in those
States to challenge their sentences--which would then "burden"
the courts.
But what is the burden of prisoners challenging
their death sentences when the Supreme Court has left the door
open in Ring? After all, shouldn't we be more worried if states'
death penalty systems were voided, and death row prisoners could
not challenge their sentences?
Equally incredibly, the Summerlin dissent
also expresses fear that the 529 prisoners on death row in Alabama,
Delaware, Florida, and Indiana will now challenge their sentences
too--leading to even more "burden." Why would they
challenge their sentences? Because there, "the jury renders
an advisory verdict but the judge makes the ultimate sentencing
determination...."--and thus violates Ring.
In other words, by the dissent's logic,
the courts in those states may be "burdened" because
under Ring, those systems, too, might be unconstitutional. And
for that reason, death row prisoners might possibly have the
temerity to challenge the death sentences that resulted from
those unconstitutional systems.
Finally, even by the dissenters' own
count, fewer than 1000 prisoners will challenge their sentences
based on the retroactive application of Ring. If our federal
court system cannot handle these cases, when the challengers'
very lives are at stake, what good is it?
The Supreme Court is likely to affirm
Summerlin and reject the dissenters' view that people should
die rather than challenge their unlawful sentences. In so doing,
it will slow down the machinery of death in America's prisons
and hasten the day when the death penalty is outright abolished.
Elaine Cassel
practices law in Virginia and the District of Columbia, teachers
law and psychology, and follows the Bush regime's dismantling
of the Constitution at Civil
Liberties Watch. This article originally appeared on FindLaw's
Writ. She
can be reached at: ecassel1@cox.net
Weekend
Edition Features for Sept. 1 / 7, 2003
Neve Gordon
Strategic
Abuse: Outsourcing Human Rights Violations
Gary Leupp
Shiites
Humiliate Bush
Saul Landau
Fidel
and The Prince
Denis Halliday
Of Sanctions and Bombings: the UN Failed the People of Iraq
John Feffer
Hexangonal Headache: N. Korea Talks Were a Disaster
Ron Jacobs
The Stage of History
M. Shahid Alam
Pakistan "Recognizes" Israel
Laura Carlson
The Militarization of the Americas
Elaine Cassel
The Forgotten Prisoners of Guantanamo
James T. Phillips
The Mumbo-Jumbo War
Bill Glahn
RIAA Watch: Slumlords of the Internet
Walter A. Davis
Living in Death's Dream Kingdom
Adam Engel
Midnight's Inner Children
Poets' Basement
Stein, Guthrie and Albert
Book of the Weekend
It Became Necessary to Destroy the Planet in Order to Save It
by Khalil Bendib
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