Serious Appellate Review Can Make a Difference

If perfunctory or truncated review of Georgia's death sentences by the state Supreme Court would be likely to result in imposition of arbitrary and unconstitutional sentences, then, by similar logic truncated federal habeas review over state criminal proceedings would likely result in rising incidents of unfair and unconstitutional decisions at the state level.

At this link is the opinion by Justice Stevens in which he underscores the truncated Georgia Supreme Court mandatory review of its death penalty cases is not the kind of review represented to the US Supreme Court in Zant.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Texas Justice Re-redux

One more instance of a Texas exoneration, and how bad laws make everybody less safe, and life more miserable for the accused and wrongly convicted by making it easier to be wrongly convicted, at the link. Having identified the problem, let's put a stop to it. Thanks, Grits.

Scotus Term Summary, 2007-08

New York Times summarizes here, the most important decisions of the Supreme Court term just ended, leading with the Guantanamo Bay habeas/access to courts decision, Boumediene v. Bush, No. 06-1195, (the guarantee of habeas corpus applies at the Navy base in Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.).

Not very surprisingly, the decision was “no bolt out of the blue” according to the majority. The minority (Justice Scalia for one) strove mightily to instill fear, the fear of deaths of more Americans, as a direct result of the decision.

Curious, how justices can disagree so drastically on the nature of a notion of what it means to live, and govern, under the rule of law.

What one hand giveth, the other taketh away: By contrast to the sharp division in the Guantánamo case, the court was unanimous in another case on the availability of habeas corpus. It rejected the Bush administration’s argument that two United States citizens facing criminal charges in Iraq, and held in that country by the American military, could not seek federal court review of their detention. The two were entitled to file habeas corpus petitions, Chief Justice Roberts wrote for the court in Munaf v. Geren, No. 06-1666. Proceeding to the merits of the petitions, the court ordered them dismissed on the ground that holding the men while awaiting further action by the Iraqi authorities did not violate their rights.

The Times counts five access to courts decisions deserving of mention.

Of the ten criminal cases deserving mention, two involved sentencing after Blakely: Gall v. United States, No. 06-7949, (upheld a trial judge’s refusal to impose prison time on a young drug offender, despite the sentence of 30 to 36 months called for by the guidelines), AND Kimbrough v. United States, No. 06-6330 (the court upheld a lower sentence for a man convicted of a crack cocaine offense than the guidelines called for under a formula that treated crimes involving crack cocaine much more harshly than those involving cocaine in its powdered form. Justice Ginsburg wrote the opinion. Both cases were decided by the same 7-to-2 alignment, with Justices Thomas and Scalia dissenting). Others involved the lethal injection challenge, death penalty for rape of a child, money laundering, and another had implications for international law.

Wrongly Convicted Struggle: Solution -- Revive Section 1983

Here is one from WP, Exonerated Struggle.

And from Reason, Suing the DA, Should prosecutors be immune from civil lawsuits?

(Radley Balko | April 24, 2008)

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

***

We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

***

The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

And on the recent Death Penalty case, via Doug (I could not have said it better):

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq. But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle. Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

One More Arrow in the DP Abolition Quiver

A few choice excerpts:

Hill and his team work out of an office in the Capital Defenders’ headquarters, in downtown Atlanta, in a mock courtroom that is normally used for training. The prosecution has indicated that it may call as many as four hundred witnesses, and in Hill’s office are twenty-seven black binders, spanning eight feet of floor space, containing witness statements and other evidence gathered by the district attorney. The prosecution has also produced more than forty thousand pages of other material, and there are more than four hundred hours of tapes of telephone calls that Nichols has made from jail. On the wall are twenty sheets of yellow paper, each one representing a location relevant to the case. ***

Nichols was prepared to plead guilty to every count in the indictment and accept a sentence of life in prison if Howard agreed to abandon his quest for the death penalty.

Howard said no. As an elected official, he had little to lose by taking a hard line against one of the most notorious criminals in the country. The long wait to bring Nichols to trial has been frustrating for Howard, who works in an office in the old courthouse, five floors beneath the murder scene. Defending his decision to reject Hill’s plea offer, Howard told me, “My belief is that punishment is a question that should be decided by the community. It is not appropriate to kill four people and outline for the citizens what his punishment should be. I don’t think the defendant should choose his own punishment.” ***

Florida caps legal fees in death-penalty cases at fifteen thousand dollars, and South Carolina and Oklahoma allocate twenty-five thousand. Expenses for experts, however, often push the total cost in those states to six figures; in Georgia the average death-penalty defense costs about three hundred thousand dollars, and so it is not surprising that a case as complicated as Nichols’s has cost a great deal more. ***

Last month, Fulton County allocated a hundred and twenty-five thousand dollars for a psychiatric evaluation of Nichols and for other defense experts, but the standoff over the other costs of his defense remains unresolved. On January 18th, the Georgia council asked Judge Fuller to assign the case back to the state Capital Defenders. Hill would not comment, but Stephen Bright, of the Southern Center for Human Rights, called the move “a gross violation of the right to counsel.” Both Judge Fuller and Nichols’s defense team have argued that changing lawyers at this point would violate Nichols’s rights. Ironically, the refusal of state authorities to continue to pay Nichols’s legal fees has only increased the chances that he will avoid the death penalty. (“If this case was properly funded, it would have been over a year ago,” Fuller told me.) And, in the meantime, the Georgia council’s financial problems are beginning to affect other trials. In November, a judge in a murder case in rural Pike County removed two private attorneys because the council could no longer afford to pay them.

Toobin

Crow's Nest

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En - "lightning" On "Cruel and Unusual"

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Potter Stewart, Furman v. Georgia (1972).

It really is morbid not just because morally questionable but also because that bad bankroll represents a huge and wacky enchilada of opportunity costs diverted from fighting injustices on many other fronts including wrongful convictions, education, probation, treatment and parole, DNA analysis and, of course, Non-Death Penalty Habeas Corpus. Prof. Berman notes excessive numbers of capital cases on the Supreme Court's ever shrinking docket. ACS Blog's Martin Magnusson has this piece, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket” echoing concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."

Also review Coker v. Georgia, 433 U.S. 584 (1977) (the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman) and the syllabus:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.

Capital punishment for sex offenses is not just of historical interest. A number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible. In August 2003 Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child. Litigation over the death penalty for child rape seems like a certainty over the next decade. (Prof. Berman's SL&P). Before Furman, “as a practical matter, the death penalty had nearly withered away for crimes other than murder and rape. From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder. In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women. Of the 455 rapists executed, 405 (89%) were black. Prof Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences. Struck by Lightning: Louisiana's Electrocutions for Rape in the Forties and Fifties by Burk Foster (September 1996). (Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 188-207. Originally appeared in The Angolite, September/October 1996, pp. 36-47.).

A Capital Week on Death Row

You have got to look at this one, from SL and P (Doug B). Maryland and South Dakota have introduced laws to ban capital punishment, and Martin O'Malley, the new governer of MD captured some attention -- Ohio Death Penalty Information:

• AP reports here on a bill about to be introduced in the Maryland legislature to replace the death penalty with a maximum sentence of life without parole.

Excerpt:
...Governor Martin O'Malley says he'd sign the measure into law -- if it passes the House and Senate. O'Malley says he believes the state wastes a lot of money pursuing a policy that "doesn't work to reduce crime or save lives."

Doug B's begins,

For anyone categorically opposed to the death penalty, the past week has to be a cause for celebration. As DPIC is now spotlighting on its home page, "seven executions in three states were stayed for various reasons between January 19 and the 25th."

A One Sided View of a SCT Argument

Reviewing Oral Argument in Abdul Kabir FKA (sic) Cole v Quarterman, and Brewer v. Quarterman. Robert C. Owen for Petitioners.

The death cases have instructional value for several reasons. We demonstrate how questions of life and death are treated for the world to see, (apart from what we are NOT accomplishing in Iraq).

The transparency of our system of justice is commendable and remarkable. Death is different. AEDPA and legalistic points aside, these, as do all cases brought before the SCT, spotlight how our system "works" and does not work.

Remember that almost fifty individual prisoners on TX death row will be affected by this decision (have cases pending raising the same issue re the pre-1991 jury instructions). That it takes over 15 years to resolve the matter says something too. I'll let that speak for itself. We can only wish that justice was as speedy as the recent Presidential decision to begin re-utilizing FISA authority for wiretaps.

Preliminary Box Score:
Edward L. Marshall for Texas makes an interesting point about the AEDPA inquiry under Teague and clearly established law (pp 35). He relies on and desperately wants the Court to look at Graham and Johnson, rather than Penry, Tennard (pp 40). But Johnson unfortunately may have been a very narrow fact-based decision, and Owen suggests in any event that the language favoring the state's case must be read in context of other language that does not help it.

Summarizing, the question was whether the jury instructions permitted "meaningful" consideration of mitigating evidence.

Argument:
O begins with: Would the reasonable juror find evidence of mistreatment as a youth as reasons to find defendant more dangerous rather than less dangerous, contrary to the lower courts' earlier findings on this? O noted that the Fifth Circuit in December's Nelson decision (split decision BTW) turned away from its prior position and followed the Court's guidance under Tennard and Smith. For that reason counsel had requested the Court vacate and return the case for reconsideration in light of Nelson.

But Nelson is likely to be challenged, said Ginsburg, resulting in delay.
Stevens thought that these cases are different and there was no reason to wait to decide them. So after about five or ten minutes O turned to the merits (pp7).

CJ Roberts first wanted to compare the evidence with that in Penry. This is precisely how law is made and he gets right to it. Is the case similar enough to follow or different enough to distinguish? He suggested these were "closer" cases. Owens, not conceding that calls them "different" but not closer, returning to the suggestion that the evidence made defendants out to be more not less dangerous (therefore, not mitigating). This is important because the question is whether the instructions permitted a reasonable juror to consider the evidence AS MITIGATING, apart from the question of future danger.

Justice Ginsburg next offers that the evidence even if not as strong as Penry's still really does fall into the category of MITIGATING (only if considered as such under the Tennard line of cases.)

Scalia notes Tennard post-dates the State court decisions in these cases. This is important because under AEDPA the question is whether the State court's decision was "unreasonable". It was Johnson and another case which the State court purported to be following at the time of its ruling. O points out that the Tennard dicta was made in the context of a COA qn. (misunderstanding the thrust of Scalia's remark -- the State decided Tennard in 1997).

When Scalia points out that Tennard did not overrule Johnson, O points out that in Johnson, the evidence in qn was limited to defendant's youth which is coextensive to dangerousness and mitigation, contrary to the cases at bar.

J Alito wants to know more about the similarities with Johnson, and Roberts goes to the specific evidence in Brewer's case, and thinks it is quite different than Penry.

O directs the justices back around to the question at hand, that evidence of mental impairment raises a probable inference of dangerousness in Tennard and Penry, as in the cases at bar.

Roberts makes the point that an absence of a "similar prosecutorial statement in the Cole case cuts against you" (getting very parsimonious in the differences--for Roberts, it is not just the evidence, its nature and character or the lack of it, but also how or if it was presented IN THE LOWER COURTS -- in this instance he felt that the absence of the prosecutor telling the jury about the "mitigating" evidence that O argues the reasonable juror would feel makes defendant more dangerous makes Cole different than Brewer's).

Is it reasonable to make such a fine distinction? How about: My lawyer was tongue-tied at trial, or the prosecutor mucked up and forgot to make a point or two. It is all in what you believe the proverbial "reasonable juror" could objectively believe. Are judges truly qualified to answer that as a matter of "science"? Regardless, these are the sorts of things judges do day-in and day-out. If not judges, do we need psychiatrists for that? I suppose the great thing about American justice is that common sense should prevail, so we appoint and elect judges and justices to define that for us. After all, that is why we call it "common" sense. What a system. Does it work? For whom does it work best? (IMO judges should be drawn from the commuity, receive expense pay only, and go back to their day jobs periodically to re-discover common sense and experience a little humanity and humility. I think I know more than a few lawyers who could benefit too).

Roberts wants very much to believe that a juror COULD, IF SHE WISHED TO, have considered the evidence mitigating. But this does not appear to follow the Court's precedent in Tennard, Penry, but to essentially re-litigate the question whether mental impairment and/or mistreatment creates an inference of dangerousness unless provided a way to be considered as categorically and specifically mitigating. Texas, recognizing the weakness, had reformed this shortcoming by changing the instruction set, in 1991, to allow for that.

Roberts then notes Penry did not establish an absolute rule and thinks maybe O is arguing for such. pp19

O responds that no, the Court need only enforce Penry for Brewer to prevail.
Scalia wants more about the deferential review and O responds that yes, the State court chose between applying the Penry line or the Graham, Johnson and chose wrong. Not only that, the choice was "objectively" unreasonable, he concluded, as necessarily he must.

That is what AEDPA has done for us.

NB. I'll let somebody else do Ed's argument. But if somebody wants it from me my standard hourly rate is $625/hr. That's a joke. [At that rate I'd pay off my student loans in no time, but I wonder why that's not happening].

The tranny is here. (and it is not a GM, Ford or Toyota model -- I prefer Mazda myself).

From the Crows Nest

Today is Attorney General day as the Post has one, two and three (not blind mice) items and NYT one on this topic.

Yesterday just listening to some commentatary on the Devlin kidnapping case from Missouri, I heard something to the effect that many people are looking for an early plea arrangement in order to avoid the trauma to the kids of testifying at a trial (so it is not as traumatic to just talk about it in private to the REALLY NICE prosecutors, who are VERY interested also in getting that plea).

So, in that view, a trial imposes trauma, and that's a good enough reason to enter a conviction on a plea. Do we no longer CARE whether the man is guilty? Sure, the facts of this case appear open and shut, but it isn't always like that.

Meanwhile, back at the ranch:

This from the Post Thursday on Smith and the Supreme Court death penalty cases is good:

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

More on Politicized AGs: (from Howard at How Appealing)

"Surging and Purging": Today in The New York Times, columnist Paul Krugman has an op-ed (TimesSelect temporary pass-through link) that begins, "There's something happening here, and what it is seems completely clear: the Bush administration is trying to protect itself by purging independent-minded prosecutors."

In related news coverage, The Washington Post today contains an article headlined "Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, Defends Actions."

And in The San Francisco Chronicle, Bob Egelko reports that "U.S. attorney was forced out, Feinstein says."

Here is a link to one of the first opinions disposing of a challenge to the Adam Walsh Act.

This one is of local interest-- a challenge to an "anti-solicitation" Herndon, Virginia law targeting day laborers: (Washington Post)

Although town officials cited traffic safety as their chief concern, the law was passed in the midst of a debate over the impact of immigrant day laborers, who congregated in the parking lot on Elden Street in the mornings to seek work.

Thomas's attorneys, Rodney G. Leffler and Alexa K. Moseley of Fairfax, asked that the case be dismissed on First Amendment grounds, saying that solicitation has long been protected by the courts as free speech. Specifically, they said Herndon's law is flawed because it focuses only on solicitation for employment, while leaving other forms of solicitation -- such as charitable contributions or the sale of goods -- unrestricted.

Fairfax District Judge Lorraine Nordlund has scheduled a hearing for Feb. 14 but indicated that she could rule earlier based on written arguments. The lawsuit was filed last week.

Herndon Town Attorney Richard B. Kaufman declined to comment. "The Town of Herndon does not comment on ongoing criminal prosecutions," he said.

Vice Mayor Dennis D. Husch said the Town Council can rewrite the ordinance, if necessary.

Crows Nest on a Tuesday that feels like Monday

Here is Scot Henson on TX Parole

TDCJ categorizes offenders who are eligible for parole into seven risk levels, and under the current guidelines, level 7 offenders (those identified as the least dangerous) should be approved for release between 76-100% of the time. But take a look at the approval rates for Level 7 offenders at Texas' six regional parole panels from the Sunset report (pdf, p. 31):

Parole Panel Approval Rate for Guideline 7

Amarillo 42.96%
Angleton 54.47
Gatesville 38.29
Huntsville 45.71
Palestine 57.88
San Antonio 53.14

Not one of these parole boards comes close to approving Level 7 parole candidates at even the lowest part of the guideline range. One member of the Sunset Commission pointed out, the parole board is actually more likely to follow its guidelines for the most violent, dangerous offenders than they are low-level nonviolent ones. That makes little sense.

And a little more on that from Norm Sirak's place:

Pretty Hot Letter on Parole to Texas State Senator makes points (Dec. 27)

According to December's Progress Report Texas's Motion to Oppose Class Cert is Due Jan. 17. There have been six motions to dismiss to date, unheard of.

This, from ADAM M. GERSHOWITZ , South Texas College of Law, is a very interesting proposal, politically speaking, concerning the Death Penalty.

As is this one, by WAYNE A. LOGAN , Florida State University College of Law. Thanks as always to Prof. Berman. This article is reviewed (previewed?) by Corey Young over at Sex Crimes blog.

UPDATE: My Newsletter has just been posted here.(10:12am)

There is some groundbreaking work discussed here, this morning (when I noticed it). I'll be over at the Ceresville Mansion with Martin O'Malley, the Governer-elect, pre-inaugural breakfast a bit later politicking on the politics of crime, or just saying hello and whatever.

Last evening I saw the Guv-elect (can I call you Martin?) on Ch. 3 (WWPB) briefly responding to some questions, among them:

-what about the death penalty in Maryland?
-raising taxes (that's not a priority--candidly mentioning that the spending driving taxation requires some analysis)?

I'm sorry but that is all I saw before somebody changed the channel (I did not possess the control --"run"-- the TV Friday night). I'm usually out-voted anyway and so I try to get them out the door at every opportunity. Bah.

Politics of Crime

This qualifies for politics of crime (even if it's not habeas stuff which is the more keenly honed edge on this blog), as does the following item from Prof. Berman.
The President can do no wrong, except if his name was Nixon, in which case he gets pardoned, or if his name was Clinton, in which case he gets impeached. The real question:

does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?*** It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.

More by Orin Kerr here.

Prof. Berman lays this one out in the flats (not the ones out west, near where those Casinos are):

The over/under on tonight's big game right now is set at 46. Were I a betting man, I would take the over. But if 46 was set as an over/under for the number of executions in the United States in 2007, I probably would take the under. *** But, as spotlighted by ODPI in posts here and here, the death penalty landscape is probably more impacted by evolving political realities than legal issues. If elected officials (including state judges) discover they can disrupt marches to death chambers without serious political fall-out, there could be amazingly few executions (except perhaps in Texas) throughout 2007.

Who can take this one in for the TD?

Nothing good can come of this, then too I could be wrong. Scot Henson just reminded me of this one (the Texas Panetti SCOTUS cert), from Prof. Berman. Here Scot spotlights another innocence issue:

Whitley quotes Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, who points out that "no other county in the country beats Dallas. It’s a county that beats out most states in the country. It’s an indication of a system that needs reform.""So why is Dallas having such staggering numbers of the innocent put in prison?," queries Whitley. "One clue: Potkin says that almost all of those exonerated were convicted with eyewitness testimony that proved to be wrong. 'And these cases are recent, not from the ’80s,' she says."

No wonder so many innocent people are sitting in Texas prisons. The eyewitnesses are "wrong"? That sounds more than just a little "feeshy to mee." Scot assumes that the "eyewitnesses" are not subject to coercion (there are some things that best practices cannot cure) whereas IMO coercion is precisely where, and how, Texas is going wrong in obtaining its convictions.

Lot more goodies here on alternatives to prison, from Scot,

and here, victim advocates oppose "tuffer" penalties (truly amazing, if it did not make so much sense). My earlier post about hearts and heads here.

Interesting Contrasts and Currents

Saddam Hussein, “The Butcher of Baghdad,” was executed just before dawn 12/30/06 local, at 10 pm EST (that is 12/29 EST). We can depose a foreign tyrant but cannot keep him from being executed. So sadly so much power is so wasted. I have no doubt that no-one ever deserved to be executed more. However, to my mind, life without parole is the much greater deterrent, is the greater punishment, and teaches the greater moral lesson.

A New Jersey commission has voted 12-1 to abolish the death penalty in that state. Just as I thought, Prof. Berman has this excellent "first cut" take. Karl Keys at Capital Defense Weekly has still more on that, a little piqued, or at least disputatious, re Doug's use of the term "sophomoric" or something like that, (college student quality of the report--maybe the students are REALLY VERY HIGH QUALITY -- even though he is "underwhelmed") here. And Scott Henson does his usual excellent job here reviewing Texas developments in 2006.

Now, NPR is reporting that the executioners taunted on the gallows?! Apparently, despite the searching by American troops to prevent this, one of the five executioners already present (according to the report) must have taped this on a cellphone.

President Ford's state funeral began with much fanfare. America buries a great President. Ford taped an interview that was only to be released upon his death in which he described how big a mistake he thought it was to precipitously invade Iraq (paraphrasing): we must not use force unnecessarily, even to further spread democracy, unless our own national interests are clearly hinging on the immediate use of that force. Tuesday, January 2 was designated a national day of mourning.

Whoops! Did he really mean to inhale at that particular point in time? Nah. Must'a been just an accident, breathing in like that. (Thanks Jeralyn). For more on this SCOOP see here, Talk Left.

And the PD Awards are almost over now. I really like how Greg has that "feedroll" (with me in there heading up the "Z"s, and Arbitrary doing the "A"s). Only four blogs linking to me (so far) but all quality, I'm telling you.

2006 Top Ten Stories

Berman’s 2006 Top Ten (12/30/06) Click here.

10. The paucity of "tough-on-crime" politicking. Reports of rising crime rates and a Republican party with few good election themes had me expecting "tough-on-crime" political rhetoric throughout the election season. But this political dog did not bark, perhaps because Democrats have been consistently "tough" or perhaps because Republicans have found a new prison religion.

9. Continued rise in US incarceration. Though the politics of crime may no longer be out-of-whack, the impact of 20 years of tough-on-crime attitudes continued to be seen in record incarceration rates and overcrowded prisons in state after state. In California, the situation has gotten so bad, some sensible reform might even emerge (details here and here).
8. High-profile white-collar sentencings. Defendants Jack Abramoff, Bernie Ebbers, Andrew Fastow, Jamie Olis, George Ryan and Jeff Skilling all made sentencing headlines this year. Interestingly, Andrew Fastow and Jamie Olis got the same sentence, but the others' sentences were all over the map (and Ken Lay missed the sentencing fun by dying). White Collar Crime Prof Blog has other related year-end highlights here.

6. Continued dialogues about executive clemency. Though notably grants of clemency
remained rare in 2006, clemency issues continued to garner much attention. Ken Starr played a high-profile role in a California clemency request, Maryland's out-going governor keep using this historic power. Also, chief executives in Ohio, South Dakota, and Virginia put off scheduled executions for various reasons.

2. More sex offender mania and some pushback. The severity and creativeness of sentencing for sex offenders reached new heights in 2006. This category archive and the new blog Sex Crimes document that nearly every jurisdiction in the country was dealing with legislation or litigation involving sex offenders. And though getting tougher remained the chief talking point, concerns about the impact of broad residency restrictions or severe mandatory sentences started to garner more attention.

Death, Texas, and SCOTUS

More on Topic of Death Penalty (from Texas, via SCOTUSblog--many thanks!)

Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit's 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that "the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court's own approach" in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. "The need for this Court's intervention no longer exists," Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, "has been resolved." (Identical arguments were made in the two cases.)

The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court's more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state's Postconviction Litigation Division in the state attorney general's office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.

The Fifth Circuit Court of Appeals on Wednesday (Dec. 27) denied request for en banc consideration expressly to (try to) resolve the question of the Supreme Court's jurisdiction over the matter by making decision "final".

And, that's not all...for the rest of the controversy, link there. (How Appealing/Howard Bashman--thank you!)

This is big too (from Texas): (Thanks to Karl Keys--Capital Defense Weekly--link at right)

Although I have been repeatedly calling 2006 the “Year of the Needle” it may well be remembered as the year the Texas death penalty was saved. As I am prepping up the year end review in caselaw I am stunned at the developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso

Currents: Eddies and Flows

Re Carey v Musladin is Flawed (Sherry Colb, Findlaw)--Heart of Matter is:

events in a courtroom - overseen and approved by a judge - acquire a state action status that they would not otherwise have. And once the Court acknowledges that this is so, there is no reason to treat a "private" act in the courtroom as falling outside the scope of precedents that govern displays in the courtroom that undermine the fairness of a criminal trial.

I could not agree more.
[Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law will be published by Rowman & Littlefield in early 2007.]

Update: here by Prof. Amar (Findlaw, Wed. Dec. 20).

One More Torture Case Backed by Former Judges.

Washington Post Editorializes on Death.

Too Funny.

And learn lots about the politics of crime from NYT ("Right's Jailhouse Conversion")

Currents

Richard Cohen today writes:

He's my person of the year -- a fleetingly sane man in the maw of a thoroughly insane system.

That's my Post. (for now)

Categorically: Hey! Wait Just A Minute Here!

Maybe nobody noticed, but the Chinese guy writing in TIMEasia (see my earlier post today) basically says they kicked our asses in Korea at the Yalu River. This is completely tangential to my blog but I wonder if anybody out there happens to have heard a different perspective on that particular battle? Comments are greatly welcomed. By my calculation that was exactly 56 years ago November. Some of the guys are still alive and kicking. Any "old crows" out there with a story? Clint, we need a movie about that one soon!

Christmas Day Oddities

The Old South Hasn't Gone Anywhere, and Won't:

X _________ (just take a wild guess) and a number of political interest groups attacked Wallace's nomination (to the federal bench), led by a scathing report from the American Bar Association that gave him a "not qualified" rating. The report specifically questioned his record on civil rights, his treatment of minorities and his record on voting rights issues. The predominantly African-American Magnolia Bar Association also opposed Wallace's nomination on grounds the 5th Circuit bench needs more diversity based on the district's population.

Wallace was reticent about his political opposition, but when asked if he held racist views, Wallace said flatly: "No."

The ABA report noted: "Lawyers and judges stated that Mr. Wallace did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots and those who do not share his view of the world."

More Synaptical Sparks Concerning Ohio, Death Penalty and interesting comments about pain, punishment and death from crimeandconsequences dot com here.

Maryland, Death Penalty notes, and the Political Value to State Republicans, tipped in from Washington Post via How Appealing (Howard Bashman):

the confluence of national currents and a Maryland court ruling last week halting executions on a technicality could make the death penalty a defining issue of O'Malley's tenure.***executions are not likely to resume without action from his administration. Under the ruling by the Court of Appeals, new regulations must be drafted before the state may put more prisoners to death -- and early signs from O'Malley and his aides suggest that he sees no reason to rush that process. *** O'Malley said he was certain that "all of this will spark a renewed debate as to whether all of the money we spend prosecuting death penalty cases might be better spent fighting violent crime and saving lives."***Legislation that allowed executions to resume would be subject to a filibuster in the Senate, however, and is not certain to pass, said Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee. In coming weeks, lawmakers will be looking at O'Malley to signal where the process is headed, said Del. Samuel I. Rosenberg (D-Baltimore), vice chairman of the Judiciary Committee.

A pair of interesting posts from Howard Bashman, a Freebie, (in Law dotcom) about SCOTUS, from Legal Times (not cheap news), and what I might call a year-end wrap-up here (written by Howard).

Happy Holidays!