A Criminal Enterprise

Is There A Free-Standing Actual Innocence Claim?

Posted in Uncategorized by Robert Smith on October 18, 2009

See Previous Post: The Next Round for Troy Davis (discussing background of SCOTUS action on Troy Davis’ Original Writ Application)

On August 29, Judge William Moore of the United District Court for the Southern District of Georgia (who is on the receiving end of the Supreme Court’s transfer of Troy Davis’ Original Writ Petition) ordered Georgia to respond first (within 45 days) and Davis to respond (within 45 days of notice of Georgia’s filing). Among the issues to be addressed:

In his Petition for a Writ of Habeas Corpus, Petitioner has asserted a free-standing actual innocence claim. (Doc. 2 at 28-32.) The Supreme Court has never explicitly held that such a claim is cognizable under the Constitution, much less explicitly determined the appropriate burden of proof in such a case. See House v. Bell, 547 U.S. 518, 554-55 (2006), Herrera v. Collins, 506 U.S. 390, 417 (1993) . Accordingly, Petitioner and Respondent should be mindful to address not only the merits of this claim, but also whether such a claim is constitutionally cognizable and, if so, the appropriate burden of proof.

Georgia filed its response on Oct 9th. The State breaks into three categories its argument that there is no such thing as an actual innocence claim on federal habeas review:

1. The Court has not recognized such a right (which falls easily into the “no shit, Sherlock” category)

2. The parole board heard Davis’ claim and did a thorough job of considering it (including hearing from witnesses, etc)

3. Georgia has an independent process for evaluating actual innocence claims (unlike in Herrera) and Davis was able to avail himself of that process–the Extraordinary Motion for a New Trial– at any time.


This seems a wholly insufficient response. The first and second points are facially unpersuasive (I doubt that even the State is convinced by its argument that a parole board hearing is equal to a judicial hearing). The third point is more interesting. If a state were to provide co-extensive process, then I think there is a good argument to be made that federal courts would owe the same level of deference as under AEDPA. But the Extraordinary Motion for a New Trial employs procedural defaults (strict definition and timing requirements based on availability  of “new evidence”, an unfavorable view of recantation evidence, and, in this case, the possibility that an evidentiary hearing is not granted despite what has to meet any threshold for evaluation of new evidence).  But none of this answers the question of whether an “actual innocence” claim exists under the 8th Amendment.

I would love discussion on this issue (as it is necessarily amorphous and inevitably encompasses several competing considerations (individual fairness, finality, federalism, systemic integrity, etc.). Here are some knee-jerk preliminary thoughts:

1. Maybe there should be two standards. If a defendant can demonstrate his guilt phase innocence based on new reliable evidence by showing that no reasonable juror could find him guilty then he gets a new trial (this is the Jackson standard in habeas, but there is room to play with the would/could distinction. Would might be more accurate as it is closer to Strickland and Brady than to the Jackson insufficiency standard).

But, since death is different in kind than any other punishment and the possibility of future exonerating evidence is irrelevant once the person is executed(think Willingham), a showing of innocence (innocence of guilty, not innocence of the death penalty) by  clear and convincing evidence (as opposed to the more probable than not under Schlup or the “no reasonable juror” standard that should get you a new trial) then he cannot be executed.

It seems to me that this compromise balances the tensions between 1. finality 2. the difficulty in re-trying old cases with stale evidence 3. the individual’s liberty interest and 4. society’s confidence in the legitimacy and accuracy of the criminal justice system.

The language in House demonstrates that the Court believed House to be far away from any possible Herrara claim, but it might be that the best standard for not being executed (as opposed to getting a new trial) is  the “probably innocent” standard.

2. I like Souter’s argument in his dissent in Kansas v. Marsh, as I think it helps to rebut the argument that innocence has never been an independent 8th Amendment issue.

We are thus in a period of new empirical argument about how “death is different,” Gregg, 428 U. S., at 188 (joint opinion of Stewart, Powell, and Stevens, JJ.): not only would these false verdicts defy correction after the fatal moment, the Illinois experience shows them to be remarkable in number, and they are probably disproportionately high in capital cases. While it is far too soon for any generalization about the soundness of capital sentencing across the country, the cautionary lesson of recent experience addresses the tie-breaking potential of the Kansas statute: the same risks of falsity that infect proof of guilt raise questions about sentences, when the circumstances of the crime are aggravating factors and bear on predictions of future dangerousness.

3. My guess is that the historical landscape is distorted because of (1) the short time between conviction and execution and (2) the lack of the science, etc, to determine innocence after the fact. But if we look to the purpose animating the “better to let 10 guilty go free” or the “beyond a reasonable doubt standard” we find that the Framer’s had an abiding interest in not letting an innocent person be executed…. but they felt that (as we did until recently) any error came from imperfect process and so cementing solid constitutional procedures and protections would eliminate risk. But we know now that isn’t true. So if we abstract from the purpose of protecting the innocent we likely would find that executing the innocent (even those who have had a perfect trial) would defy original intent.

4. All that said, I wonder if there were cases at Common Law or in England where someone confessed to the crime after the trial and conviction of someone else. Perhaps there is some authority that contradicts the historical arguments made by Rehnquist, etc..

5. The most appealing counter-argument is the “serious disruption to the federal courts” that freestanding innocence claims will have. But I doubt it pans out. First, in the death penalty context, there are only roughly  3,200 death row inmates in the state and federal system combined. Out of these inmates, a sizeable percentage have (1) (small percent) plead guilty, but received death by 3 judge panel or penalty jury or (2) (big percent) admit guilt at trial and ask for remorse. So really..what rush to the courthouse. And if the Court adopts Schlup as the threshold for even hearing the claim, then are we really to expect more of an outpouring of petitions to federal courts than we see now under Schlup? And won’t most of them be easily disposed of anyway? Schlup discusses the minimal disruption in actual innocence cases. Also finality claims are at a low in those context and individual rights claims at a high.

I’ll end with these words from the Herrera dissent:

The execution of a person who can show that he is innocent comes perilously close to simple murder.” The dissent also talks about how Courts cannot complain about only having affidavit evidence when they truncate review by not holding an evidentiary hearing. I think this is from Schlup, but could be important in terms of casting doubt on the remaining testimony (based on physical impossibility evidence, etc, not presented at trial but that could be presented at an evidentiary hearing now that the science exists):  “In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments.

Four questions:

(1) Is “innocence” mentioned anywhere in the AEDPA legislative history?

(2) Do any other questions recognize free-standing innocence claims?

(3) How many states have recognized an actual innocence claim based on the federal (or their respective State) constitution?

(4) Is there reliable polling data on how the public feels about allowing actual innocence claim without procedure defaults, etc?


Chris Geidner: “The Machinery of Death: What Happened Today in Ohio”

Posted in Uncategorized by Robert Smith on October 6, 2009

Thank you to Chris Geidner at Law Dork for permission to repost his insightful piece on today’s events in Ohio:

The Machinery of Death: What Happened Today in Ohio

Today was a complicated day for Ohio.  Specifically, it was a complicated day for those officeholders responsible for implementing and judging Ohio’s death penalty process — and for those seeking an insight into the future of Ohio’s death penalty.

In recent months, Governor Ted Strickland (D) has overruled his Parole Board’s recommendation to grant clemency to Jason Getsy, who was executed on Aug. 18, and finally put a stop to the attempted execution of Romell Broom on Sept. 15 after the execution team failed over a two-hour period to access a vein to inject him with the lethal drugs.  The botched attempt at executing Broom led the editorial board ofThe New York Times to state that “every state should use this shameful moment to question whether they ought to be putting people to death at all.”

And today did begin with the U.S. Court of Appeals for the Sixth Circuit issuing a stay of the scheduled execution of Lawrence Reynolds, yet another Ohio Death Row inmate.

The 2-1 panel opinion from the Sixth Circuit would have put a halt to the October 8 execution of Reynolds.  Ohio Attorney General Richard Cordray (D), however, took quick action to attempt to keep the execution on schedule by asking the U.S. Supreme Court to lift the stay.  Before the Supreme Court could take action on the request, though, Strickland granted a reprieve that put off the execution for several months — but did nothing to answer the current questions surrounding Ohio’s implementation of the death penalty.

Continue Reading

[New Orleans] Judge refuses to increase bond [from ZERO] for cardiologist’s son charged with killing pedestrian while driving drunk

Posted in Uncategorized by Robert Smith on September 29, 2009

This is the title (with my slight modifications) of a disturbing article by Gwen Filosa in today’s Times Picayune. Here is the background:

An Orleans Parish judge has refused to increase bond for a man charged with vehicular homicide,  despite prosecutors’ pleas that his family’s wealth and ties overseas make him a flight risk.

Abhishek BhansaliAbhishek Bhansali,  23,  a New Orleans native and son of a prominent cardiologist,  quickly bonded out of jail on his own recognizance after police arrested him March 21 for allegedly killing a pedestrian outside an Uptown club while drunkenly operating a 2008 BMW. He has pleaded innocent to the charge.

Michael Keith,  34,  a father of three who lived in Metairie and had served in the Marines,  was knocked 150 feet into the air while walking in the 3700 block of Tchoupitoulas Street. He was pronounced dead at the scene about 3 a.m.

Bhansali was speeding and had swerved into the wrong lane  —  driving against traffic  —  when he struck Keith,  a police report says. The driver was well over the legal limit for alcohol consumption,  registering .128 on a blood-alcohol test,  according to police. The legal limit in Louisiana is .08.

Magistrate Gerard Hansen on March 21 gave Bhansali,  a New York University business graduate who has worked on promotional campaigns for Absolut vodka,  the most lenient of bonds,  allowing a promise to return,  without financial risk.

This situation doesn’t need much commentary. Earlier this year, in Amite, Louisiana, a man accused of killing three people (in the course of the same incident) was released on 250,000 bond AND a GPS bracelet. No word on whether that guy’s dad is a wealthy cardiologist, but some meaningful bond amount and GPS seems to make a lot of sense.

Much the same disparity could be seen in Mississippi earlier this month.  Darlena Mickel, who allegedly caused the death of a toddler while driving intoxicated, had her bond set at 500,000. This despite the victim’s family (who are Mickel’s neighbors) testimony during the bond hearing that Mickel would  “lay down her life for that kid” and that the accident was “an accident.” Oh, and at the time of the bond hearing, the lead investigator “thought” that Mickel was intoxicated, but was awaiting a toxicology screen for confirmation. Mickel testified that she had no prior criminal record.

By contrast (though nowhere near the free bail in New Orleans), in July 2009, in Jackson, Mississippi, Karen Irby was released to her home on 250,000 bond (half the amount of Mickel’s) after this event (to be fair, Irby received extensive injuries, which might decrease flight risk):

Jackson police said Irby was driving a Mercedes at about 100 mph when it slammed into a truck carrying doctors Daniel Pogue and Lisa Dedousis. Both died. Irby and her husband, Stuart Irby, suffered extensive injuries.

Karen Irby had alcohol in her system at the time of the wreck Feb. 11 at about 10 p.m., records show.

Under the terms of her $250,000 bond, Irby is being held on house arrest and is being monitored electronically, according to court records.

Not even famous NFL players get away with this treatment. Last week, former Detroit Lion Charles Rogers, also 28, had bond set at 50,000 for misdemeanor drunk driving and  he didn’t kill anybody.

Now I’m not an expert on benchmark bond amounts, and I realize that different places and different judges feel differently about different crimes and are willing to take different risks re likelihood of flight, but here are a few guidelines I am sure of:

1. rich people should not receive a lower bond for a more aggravated version of the same crime that a poorer person commits

2. SOME bond, or at least a GPS device, is called for when a person is accused (especially on damn good probable cause) of killing another person while driving drunk.

But I thought these points were obvious.

P.S. I recommend reading the comments in the comment section at the end of the Times-Pic article linked above. Examples:

This is a family that has been good for New Orleans. People of this city (depending on who they knew) have always been given special treatment. Why should this family be any different? They have definitely earned it.
I’m not saying the victim’s family should not prevail in civil court .Just why should another life be ruined (even if it was by his own stupid mistake)?


You cannot be serious, that he should get away with murder simply because his family has done good things for the city?!?! Driving with a blood alcohol content THAT far above the legal limit is NOT a “stupid mistake”, and I’m fairly certain you would not feel the same way if it was one of your loved ones who had been crossing the street.


Please. Favored treatment happens every day. We’ve got police who killed or beat people on the streets as if nothing happened. However, bond is to insure that a suspect will appear in court. This guy has no reason to run. He will get lenient treatment like every drunk driver in Louisiana who kills or injures someone.


Ben Willard is a disgrace to the bench. Anyone who has ever observed his court knows that he is totally incompetent and undoubtely is influence by the prestige of this family. I wonder if they contributed to his campaign. Justice is suppose to be blind not blindsided by people of wealth and position. Is it possible for New Orleans to ever be free of corruption and inappropriate actions of its leaders.

Cardozo Law Review’s “De Novo” Online Forum Publishes Short Piece on Proportionality Review

Posted in Uncategorized by Robert Smith on September 24, 2009

The Cardozo Law Review posted an article that Bidish wrote today (see first item below). The Charles Hamilton Houston Institute’s release on the need for a meaningful arbitrariness review is also below (second item).

View this document on Scribd

CHHIRJ release:

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Strickland Prejudice: What Would One Juror Do?

Posted in Uncategorized by Robert Smith on September 23, 2009

I finally read the 5th Circuit’s recent decision in Linda Carty’s case. (fifth circuit opinion here, Clive Stafford Smith’s Op-ed in the Guardian available here, StandDown Texas post here and here ). My major beef is not with the court’s final decision (I don’t know the facts well enough to know if this was the right outcome), but with how courts in general handle the question of whether a defendant was prejudiced by the ineffective assistance of her counsel (the same goes for Brady “materiality” and Brecht “harmless error”).

In reviewing Carty’s ineffective assistance of counsel claim, the Fifth Circuit concluded that, yes, counsel was deficient, but

Carty bears the burden of showing a reasonable probability of a different result had Corona not testified. Although this is a close case, she has not made the requisite showing that his testimony rendered her conviction “fundamentally unfair or unreliable.”

Although the proffered testimonies would have given more detail and more focus to the mitigating evidence, in light of the totality of the evidence presented at trial, they were not of sufficient quality and force to establish a reasonable probability that, had the jury heard them, it would have elected to impose a life sentence.

[The improperly admitted] testimony provided nuance to the case but did not alter the entire evidentiary picture.

Carty has not shown that but for trial counsel’s deficient failure to advise Corona of his marital privilege there was a reasonable probability that she would not have been convicted of capital murder.

The Strickland standard turns on what a jury would have decided (guilt/innocence or life/death) absent the ineffective assistance. For example, when evaluating whether a death sentence should be overturned due to penalty phase ineffective assistance of counsel, the standard is whether a reasonable probability exists that, absent the errors, the sentencer would have concluded the balance of aggravating and mitigating circumstances did not warrant death.

Question: How do three judges on the Fifth Circuit know what a jury would have decided? Or, put differently, what decisional guideposts do courts use to decide whether a jury (in most cases, one juror–since one juror’s decision is enough to change the outcome) would have reached a different conclusion.

Answer: There are no set standards.

The Fifth Circuit in this case looked at the “overwhelming evidence of guilt” and whether the new evidence was merely “cumulative” to other evidence presented at the penalty phase.

But shouldn’t appellate judges know how actual juries decide issues (setting aside for a moment the alternative option that SCOTUS can decide instead to do away with the charade and change the standard to whether or not the outcome is now objectively unreliable)?

For example, while the degree to which new evidence is cumulative is relevant, how it is relevant differs based on the facts of a case. In Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004), the Ninth Circuit explained that “a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented.” The Third Circuit took a similar approach in Jermyn v. Horn, concluding that although child abuse evidence was presented at the penalty phase, “strong and specific testimony about a horrific home” presented at the post-conviction hearings evidenced abuse of an “entirely different weight and quality.” 266 F.3d 257, 310-311 (3d Cir. 2001).

The approach taken by the Ninth and Third circuits accord with the weight of social science research (including studies of capital jury decision-making and interviews with actual capital jurors). Evidence that is more vivid and comprehensive can do more than “provide[] nuance to the case” and in fact can “alter the entire evidentiary picture”

Who delivers the message (lay, expert, lay AND expert? Family member?) can also make a difference in the outcome of a case, especially when the only other mitigation evidence comes from the defendant. As Judge Cole wrote, dissenting from the Sixth Circuit’s 2006 opinion in Slaughter v. Parker,

The [majority’s] holding presumes a defendant’s self-serving testimony—even when he testifies to spare his own life—has the same impact regardless of whether other witnesses corroborate it. That conflicts with the Supreme Court’s recognition in Skipper v. South Carolina, 476 U.S. 1, 8 (1976), that a defendant’s testimony is inherently suspect and a jury will naturally discount it.” Slaughter v. Parker, 467 F.3d 511, 513 (6th Cir. 2006) (Cole, J., dissenting).

Again, social science research confirms Judge Cole’s intuition: simply adding another supporting  voice to the chorus  may enhance the credibility of a position.

I am not advocating (at least not here) for any specific criteria. But I think it would be nice to tether appellate determinations about what a juror would do to something more than whatever the judge would do if she was to sit on the new jury.

I also think it is important to abandon  “linear” or  “additive” models, as scholars have long done. Justice Souter in Old Chief came close to making the case:

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict

Note: My thoughts on this issue stem from an amicus brief that Charles Ogletree and I wrote shortly after I graduated from law school. That case, Jeffrey Leonard’s (known only as “James Earl Slaughter” until after he was convicted and sentenced to death), is a prime example of how excluding new evidence that isn’t different in kind can be the equivalent of treating a stick figure of a woman and the Mona Lisa as being the same. Our amicus in that case is embedded below and Judge Cole’s unforgettable dissent from the denial of rehearing en banc is here (and is absolutely worth a read, and I cannot resist including his intro at the very end of this post).

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We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as “James Slaughter,” approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court’s seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact. Accordingly, I dissent from the denial of rehearing en banc.

Nightly News–September 17, 2009

Posted in nightly news by Robert Smith on September 18, 2009

National News:

  • Raymond Clark III, who is a Yale lab technician, was arrested and charged with the murder of 24 year-old Yale graduate student, Annie Le , who was found dead and stuffed into a wall in a medical school laboratory on Sunday. Police took Clark into custody yesterday to obtain DNA samples, but he was not under arrest at that time. Police claim to have “250 pieces of evidence” and are hinting at a “workplace  violence” theory, but are not releasing much information about if and how Le and Clark were acquainted outside of working together in the same building (where she conducted experiments on mice and he cared for and cleaned up after them).  CNN covers the story here and here. Harvard Law Prof Alan Dershowitz provides a primer on the distinction between “person of interest” and “arrested” here. Yale University President Richard Levin’s letter to the Yale community here.
  • A Hofstra student who claimed that she was raped by four men (all of whom were arrested, locked-up, and charged with first-degree rape), recanted her story today, claiming that the sex was consensual. One of the defendants lawyers claims that a video shot from one of the defendants cell phones proves that this was not a rape. Something seems off here, and I hope we get more of the story soon. Apparently the police are considering  filing charges against the student. The Huffington Post reports that Hofstra University has suspended her. Crime and Federalism has these two posts, here and here (though I mostly disagree with his critique of feminism (or at least the majority of feminists that I know), and wish that neither the woman’s name  nor the  names of the accused were released. I certainly do not wish ill on the woman who appears to have made the false accusation, and think (at least without knowing more) we need to be sensitive of the possible reasons that she would have pressed the claim.)
  • A Louisville, Kentucky jury acquitted former high school teacher and football coach, David Stinson, who was charged in relation to the heat related death of one of his former football players. Stinson allegedly required the boys to keep working out despite extremely warm weather. One of the players collapsed (his body temp reached 107) and died several days later. Despite the acquittal, Stinson points out that he had lost his coaching and teaching jobs. Story here. Here is a Find Law article with back coverage on the case. Three assistant coaches defended Stinson’s actions. Is this a case of serious prosecutorial overreaching?


  • Capital Defense Weekly has this post on the Florida Supreme Court’s remand for a new penalty phase trial in Hurst v. State:

“The Florida Supreme Court Thursday in Timothy Lee Hurst v. State, No. SC07-179, unanimously granted a new sentencing hearing.  The Court granted Mr.  Hurst relief as trial counsel failed to present evidence that included his low IQ, borderline intellectual functioning and possible brain damage due to fetal alcohol syndrome.”

  • Sentencing Law and Policy questions whether Romell Broom’s case will end up at SCOTUS. That post also points out that (as Professor Berman suggested might happen) two federal defenders asked judges to allow them access to Romell Broom to attempt to glean information that the execution process is painful.
  • StandDown Texas on Sharon Keller and Todd Willingham and Troy Davis  here.
  • Gamso for the Defense has an interesting take on the botched execution attempt in Ohio: “Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we’re just fine with it.” The spirit of these remarks reminds me of this great article by Billy Sothern in the Nation right after the decision in Baze v. Rees.

Romell Broom Must Die

Posted in Uncategorized by Robert Smith on September 16, 2009

In May of 1946,  the state of Louisiana attempted to execute Willie Francis for the murder of  a well-known local businessman. But a strange thing happened after Willie was strapped into the electric chair. It didn’t work right. Willie didn’t die. Willie’s case, Francis v. Resweber,  ended up at the United States Supreme Court, where he lost 5-4. Louisiana promptly strapped Willie back into the electric chair. And that time it did work. This horrifying story has been told many times and in various mediums. I recommend three in particular: Willie Francis Must Die Again (documentary) , The Execution of Willie Francis (book), and, most recently, When Willie Francis Died (link to SSRN Page. This article also discusses the references to Willie’s case made in Baze v. Rees, the recent lethal injection decision).

The electric chair is long gone in Ohio. But that didn’t stop today’s botched execution. Execution team volunteers tried for  two hours to find a vein to carry Ohio’s lethal cocktail into Broom’s body. When they could not, Governor Strickland granted Broom a temporary reprieve (read: one week delay).

And if this case alone is not enough, the problem appears to be important and recurring. CNN Reports:

In May 2006, Ohio officials took nearly 90 minutes to carry out the execution of Joseph Clark because of problems finding a vein. Once they did find one, it collapsed, according to the Toledo Blade. Clark repeatedly shook his head, according to the newspaper, and told officials, “It don’t work.”

A year later, Ohio inmate Christopher Newton’s execution reportedly took two hours after a prison team had trouble finding a vein.

Granted, Willie Francis felt more physical pain than Romell Broom. But it’s been more than six decades since Willie Francis had his day at the Supreme Court. And what common decency and common sense should have told us then is pellucidly clear now: The execution process is emotionally and psychologically devastating—for the defendant, his family and friends, the victim’s family and friends, the guards, the legal teams and even the politicians who must make last minute judgment calls.

Regardless of the degree of mercy that any defendant shows a victim, our system demands that we not carry out cruel and unusual punishment and that we provide due process of law. Whether the Constitution permits Ohio another shot at executing Romell Broom is a question that deserves a hard look. And if the courts won’t look, then I hope Governor Strickland will.

Other coverage: StandDown Texas has this post (which includes Professor Deborah Denno’s take). Sentencing Law and Policy has this post. Capital Defense Weekly here.  Crim Prof blog here.  Crime and Consequences blog has this post, which includes:

I have said from the beginning that the switch to lethal injection was a bad idea. All we needed to do to fix the gas chamber problem was use a different gas.

Devastating Drunk Driving Story Touches Upon Important Sentencing Questions

Posted in Uncategorized by Robert Smith on September 13, 2009

The Austin Statesman leads with this article:  “10 years after accident that disfigured her, Jacqui Saburido says she’s trying to find peace: The life she wants remains out of reach; accepting the life she has is now her goal.”

I’m still processing, and hope to write more later, but the article is a must read for anyone thinking about sentencing issues—especially those that relate to drunk driving (not because the article discusses such issues explictly, but because the article captures the complexity of responding to drunk drivers and their victims).

Here is the backdrop:

Ten years ago, Saburido was a beautiful, 20-year-old woman from a wealthy family, studying English in Austin and taking a break from engineering classes at a Caracas university. On the night of Sept. 19, 1999, she went to a party on Lake Travis. She stayed late, dancing merengue and salsa, and about 4 a.m. she and three friends caught a ride with a young Russian student back into the city.

At the same time, Reggie Stephey, an 18-year-old wide receiver at Lake Travis High School, was driving home from another party in Austin. He had been drinking.

On a curve along RM 2222, Stephey’s 1996 Yukon SUV plowed into the car carrying Saburido and her friends. The crash killed the driver, Natalia Chyptchak Bennett, and Laura Guerrero, a 20-year-old University of Texas student from Colombia. Two other passengers were pulled from the wrecked car as it burst into flames.

Saburido, trapped in the front passenger seat, burned for nearly a minute before paramedics could put out the fire. Horrific burns covered nearly her entire body, except for the bottom of her legs and feet.

Reggie spent seven years in prison for a horrible decision that he made as a teenager. In some real sense, this is a waste. The state pays to warehouse a kid who made a bad decision with deadly consequences, but who seemingly had the ability to contribute to society. Now, a decade behind and an ex felon ….

On the other hand, Jacqui will in all liklihood struggle (mentally and physically) for the rest of her life. So Reggie did the time for his crime, but he moves on (though I’m not doubting that he will carry the burden) as Jacqui continues to suffer. The sense that you can pay for your crime with a fixed term doesn’t add up here.

The story also highlights that Jacqui forgave Reggie, and that the two have worked together on anti-drunk driving campagins, but that she has mixed feelings about his enrollment at UT. He studies, she feels stagnant. This is a reminder that forgiveness is an act that varies in degree and fluctuates over time.  And a reminder that we should be thoughtful about its role in criminal sentencing.

One response is to severely ratchet up drunk driving sentences. But I am very skeptical that this is the right answer. This story emphasizes how the law is unable to make the victim whole and can simulataneously both over-sentence and under-sentence the offender. I think lawmakers, and those who think about public policy, would be wise to meet with people like Jacqui and Reggie when thinking through how drunk driving sentences should operate.

One more thing. Jacqui’s family is wealthy. But what about those who are not? 9/11 victims family fund (for example) and basic public assistance are not equal support schemes. Of course, victim’s compensation (and support) schemes vary widely. But it seems to me that one possible societal response to fill the gap left where our criminal laws inevitably fail, is to use scarce resources to beef up assistance (monetary, emotional, community support) and not to dramatically increase prison sentences. This is not to say that we should be soft on drunk driving, just that we should understand the complexity, and finds ways to respond to drunk drivers that supplement for part (or in some cases all) of prison sentences and attempt to address the gap left open when a prison sentence ends but the impact of the offense does not.

Worst of the Worst Elude Death

Posted in Uncategorized by Robert Smith on September 12, 2009

I recently read an article with this title, which includes a startling statistic cited by Ohio Public Defender Tim Young:

Ohio prosecutors have obtained 724 capital indictments since 2000, but only 50 death sentences. That, Young said, is a 93 percent failure rate.

Out of the 7% percent of capital indictments that do result in death, how many capital sentences  remain in-tact after the appellate process?  I looked at cases on direct review of the trial court judgment (quick and dirty, so please let me know if I have missed any). In Ohio, these capital appeals go to the Ohio Supreme Court. Since January 1, 2005, the Ohio Supreme Court has reviewed the cases of 29 death-sentenced inamtes on direct review. Here are the numbers:

  • Direct Review (29 cases)

Six Penalty Phase Reversals (including one reversal for whole new trial)

  1. State v. Diar, 120 Ohio St. 3d 460 (Ohio 2008)(failure to give a solitary juror instruction)
  2. State v. Brown, 115 Ohio St. 3d 55 (Ohio 2007) (reversed for new trial: Brady, IAC)
  3. State v. Roberts, 110 Ohio St. 3d 71 (Ohio 2006)(improper ex parte communication at penalty phase)
  4. State v. Tenace, 109 Ohio St. 3d 255 (Ohio 2006)(disproportionate, cumulative mitigation warranted life)
  5. State v. Hancock, 108 Ohio St. 3d 57, 62 (Ohio 2006)(erroneous submission of the excluded exhibits)
  6. State v. Jackson, 107 Ohio St. 3d 53, 88 (Ohio 2005)(abuse of discretion at voir dire)

Twenty-three cases affirmed

= 21% reversal rate on direct appeal. (20.68% rounded-up)

  • Eight Other State Court Reversals since 2005
  • The Ohio Supreme Court vacated 6  death sentences since 2005, as the defendants were mentally retarded:
  1. Paul Greer (2008)
  2. Clifton White (2008)
  3. Raymond Smith (2008)
  4. Derrick Evans (2008)
  5. Kevin Yarbrough (2007)
  6. Darryl Gumm (2007)
  • Trial Court Reversals
  1. State v. Mapes, 2006-Ohio-294 (2006) (trial court reversed death sentence for ineffective assistance of counsel)
  2. State v. Mark Burke (2006) (coroner changed opinion of key evidence)
  • Ten Federal Sixth Circuit reversals  since 2005 (including affirmations of district court reversals).
  1. Williams v. Anderson, 460 F.3d 789 (6th Cir. Ohio 2006)(ineffective assistance of counsel at the penalty phase)
  2. Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007)(ineffective assistance of counsel)
  3. Davis v. Coyle, 475 F.3d 761 (6th Cir. Ohio 2007)(improper restriction on right to present mitigation evidence)
  4. Haliym v. Mitchell, 492 F.3d 680 (6th Cir. Ohio 2007)(ineffective assistance of counsel at the penalty phase)
  5. Madrigal v. Bagley, 413 F.3d 548 (6th Cir. Ohio 2005)(confrontation clause reversal)
  6. Joseph v. Coyle, 469 F.3d 441 (6th Cir. Ohio 2006)(erroenous jury instruction)
  7. Stallings v. Bagley, 561 F. Supp. 2d 821 (N.D. Ohio 2008)(district court relief, IAC)
  8. Murphy v. Bradshaw, 2008 U.S. Dist. LEXIS 29832 (S.D. Ohio Apr. 11, 2008)(district court, failure to suppress conf)
  9. Dickerson v. Bagley, 453 F.3d 690 (6th Cir. Ohio 2006)(IAC)
  10. Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. Ohio 2006)(IAC)
  • Innocence (since 2005)
  1. “On February 28, 2005, Ohio Common Pleas Judge Richard Niehaus dismissed all charges against Derrick Jamison for the death of a Cincinnati bartender after prosecutors elected not to retry him in the case.” (DPIC)
  • Clemency (since 2005)
  1. John Spirko (2008)
  2. Jeffrey Hill (2009)

In total 27 death sentences have been overturned (or commuted) since 2005. This bolsters Tim Young’s observation that Ohio is not getting much bang for its buck. Out of the 50 death sentences since 2000, I do not know how many were after January 1, 2009. But if that number is 27 or less, then the input/output ratio of Ohio’s death row is roughly a wash.

More interesting, perhaps, are the characteristics of those inmates with death-sentence  affirmed by the Ohio Supreme Court on direct appeal since 2005. Out of 23 defendants,

  • 10 have an IQ 85 or below (including several in the low 70s) that the Ohio Supreme Court afforded some mitigating weight.
  • 1 (additional) inmate was just over the 18 years of age  constitutional floor
  • 2 (additional) inmates has severe mental health disorders (bipolar, psychiotic tendancies, etc)
  • 4 (additional) inmates has chronic addiction problems at time of offense (crack, cocaine, heavy drinking, meth)

= 17 / 23 inmates with severe  limitations on the ability to make sound decisions (with 11 pushing up against constitutional boundaries of IQ and age). This raises serious questions about these offenders being among the most culpable of murderers.

Note: a solid minority of the 23 fit into multiple categories, but I only placed them into one (by descending order)  for counting purpose.

On Probation in New York: The Best or Worst of Times?

Posted in Uncategorized by Robert Smith on September 8, 2009

“Probation officers are long arms of the law” is the title of this interesting article in today’s Lower Hudson Valley News Journal. The article re-conceptualizes probation as a comprehensive, cost-effective and recidivism-reducing sanction (rather than “a slap on the wrist” for those lucky enough to avoid prison).  Here are the highlights:

People get probation when judges deem they do not pose a serious risk of reoffending. Some of the most serious offenders have committed sex crimes, and they are monitored by specially trained probation officers who enforce some 30 special restrictions on their behavior.

Probation officers typically track people for three years for misdemeanor cases, five years for felony cases and up to 10 years for sex crimes – far longer than convicts would be supervised if they went to prison.

Not only does probation track offenders longer than if they went to prison, it saves taxpayers money. A prisoner costs $35,000 to $40,000 a year; monitoring a probationer costs $4,000 to $5,000 a year, according to state statistics. “It’s probably the best tool we have to prevent recidivism,” Bartlett said. “For people who are serious about not reoffending, it’s a great opportunity. It’s the best bang for our dollar.”

Some offenders see their probation officers nine times a month, including office visits, home visits, and visits to where they work or receive treatment. They also have to undergo drug testing and show pay stubs or proof that they are trying to get work. As their probation continues, they see their probation officer less often. Andrews, a 60-year-old Spring Valley resident, is one of 3,100 probation officers in New York state keeping track of 125,000 adults on probation, half of them felons. She spends her week juggling office visits, paperwork and phone calls to treatment centers, social programs and other agencies that help her probationers. She also makes surprise home visits, especially with the 18- to 25-year-olds. “One young man said, ‘Oh, Ms. Andrews, I didn’t know you make home visits!’ I told him, ‘You never know when I’m watching you.’

Drunken driving and drug-related offenses are the most common probation convictions – 26,000 cases in each category statewide In Putnam County, about half of the 600 probation cases are for drunken driving, said probation director Gene Funicelli. The key to drunken driving probation, Funicelli said, is to make sure the probationers stay away from alcohol. They can’t go to bars or have alcohol in their homes, because that violates the conditions of their probation. To make sure they’re following the rules, Putnam’s probation officers don’t hesitate to pay a visit or call their friends and family, Funicelli said. “We don’t go on the honor system,” he said, “We go to their work. We go to their house. We do a lot of field work.” In Westchester, Andrews makes sure her probationers attend court-ordered drug- or alcohol-treatment programs, get jobs, enroll in parenting classes and any other services that can help them.

Though the reality of the parole system might be far less shiny (i.e.  too high a case to parole officer ratio prevents proper monitoring, technology malfunctions, etc.), a careful look out how to expand probation (rather than prison) for some classes of offenders (especially for drug offenses) makes good sense in light of current economic distress and the embarrassing 1/100 behind bars epidemic.

Over at the sentencing law and policy blog, Doug Berman recently asked readers for comments on probation in high-profile cases like Chris Brown’s five-year probation term for domestic-violence. He also champions tougher sentences for drunk drivers (though he mentions a general preference for alternatives to incarceration). Suppose the existence of empirical proof that probation reduces recidivism for drunk driving or domestic abuse more than the standard prison sentence, would people like Professor Berman or organizations like MADD support a wide-spread shift towards probation? Or is there a “just desserts” need that  is not met by non-incarceration sentences?