A Criminal Enterprise

A Dearth of Precedent: What Happened to Racism?

Posted in Uncategorized by Bidish J. Sarma on November 30, 2010

It turns out that an exhaustive Lexis-Nexis search for Louisiana Supreme Court cases in the past ten years that discuss “racism” or “race discrimination” or “racial discrimination” yields just 31 results. Of those 31 cases, 27 are capital direct appeals over which the Court has mandatory jurisdiction. These death penalty cases have often raised claims that the State discriminated against racial minorities in the selection of grand or petit jurors. Remarkably, only four other Louisiana Supreme Court cases in the past decade even mention “racial discrimation.” One of these cases involves disciplinary action against two lawyers, and only makes a passing reference to a race discrimination lawsuit one was retained to litigate. See In Re Kelly, 857 So. 2d 451 (La. 2003). Another involved a lawsuit by former police officers that alleged racial discrimination and harassment against the Baton Rouge Police Department. However, the Louisiana Supreme Court’s opinion did not deal with these heavy allegations, but instead simply remanded the case to lower courts to allow the Police Department to pursue its argument that the plaintiffs’ claims had prescribed (an argument which no lower court recognized as a winning argument). See Alcorn v. City of Baton Rouge, 863 So. 2d 517 (La. 2004). In the end, then, only two Louisiana Supreme Court non-death-penalty opinions meaningfully discuss race discrimination. In one of those cases, the Court reversed the intermediate appellate court’s finding that a civil service board violated the African-American plaintiff police officer’s constitutional right to equal protection when it imposed a fitness qualification upon him at the time he was up for promotion although no similar previous qualification had ever been imposed on white officers. See Moore v. Ware, 839 So. 2d 940 (La. 2003). The Louisiana Supreme Court was not impressed with Mr. Moore’s claim of race discrimination, holding “the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination.” Id. at 950. In the fourth and final non-capital case, the Louisiana Supreme Court conducted a thorough review of the party’s peremptory strikes to find that the civil defendant has intentionally discriminated against African-American prospective jurors on the basis of their race. See Alex v. Rayne Concrete Serv., 951 So. 2d 138 (La. 2007). Perhaps what is most remarkable about the Alex case is that the Louisiana Supreme Court has never engaged in such a detailed review of a claim of race discrimination in jury selection in a death penalty case, where much more is at stake.

The dearth of recent high court rulings on race in this state is surprising, especially given that: the U.S. Supreme Court in 2008 found that Jefferson Parish prosecutors discriminated on the basis of race in the selection of Allen Snyder’s capital jury; the Jena 6 episode erupted in December 2006; and incidents like the Danzinger Bridge shootings occurred in Katrina’s wake just five years ago. It is undeniable that race and racism still matter in Louisiana. So, why is so little apparently going on in front of the state’s highest court? I can think of a few possibilities, though these are all speculative:
(1) The Louisiana Supreme Court has declined to utilize its discretionary review power in cases which raise issues of racial discrimination, but has been compelled to confront those issues in death penalty cases because state law provides that the Court must decide those cases on the merits;
(2) Civil suits alleging race discrimination are disproportionately settled outside of court;
(3) Potential plaintiffs in Louisiana lack faith in the judicial system’s ability and willingness to decide claims of discrimination fairly;
(4) A paucity of (pro bono/public interest) civil rights lawyers interested in identifying issues and equipped to litigate them means that individuals with legitimate claims can’t afford or find representation;
(5) As some legal commentators recently explained, claims are difficult to mount because systems rather than identifiable and particular individuals perpetuate covert discrimination: “outcomes are rarely attributable to overt racial discrimination; instead, they result from patterns of implicit bias and institutionalized racism that tend to repeat and normalize the status quo.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1179 (2008);
(6) The U.S. Supreme Court’s Equal Protection’s “intent” doctrine has made it nearly impossible to prove that the State has intentionally discriminated on the basis of race. See, e.g., id. at 1190-91;
(7) Individuals are reluctant to make allegations of race discrimination because they “are politically incendiary.” Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1103 (2009).

Perhaps the explanation is some combination of these factors, plus others I haven’t identified. Whatever the cause, the result is alarming. The reality is: “While the Jena 6 incident was a disturbing and highly visible reminder of the continued prevalence of racism in America, the equally troubling reality is that far less visible forms of racism and discrimination occur everyday and go largely unchallenged.”  Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1177 (2008). Incremental steps must be taken to address each of the factors contributing to the problem of unchallenged racism. But, there certainly exists an opportunity for the courts to step up and meaningfully analyze the claims that are actually presented to them. At the Louisiana Supreme Court, a logical first step would be to give capital defendants meaningful appellate review when they make substantiated claims that the State discriminated against prospective jurors in their cases. Then, it can step beyond the world of mandatory jurisdiction and provide litigants with a realistic hope that their concerns will not fall upon deaf ears. But, a simple Lexis search leaves one to wonder whether the fight for racial equality is fading, despite clear evidence for its need.

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Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

Autobiography of an Execution

Posted in Uncategorized by Sophie Cull on February 12, 2010

Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”

Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.

Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.

My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.

Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.

My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.

I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.

At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.

We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.

I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.

Publisher: Grand Central Publishing; Date: February 2010

You can hear an interview with David Dow about the book here (see Feb 9):

http://www.abc.net.au/rn/lifematters/

Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”

Posted in Uncategorized by Bidish J. Sarma on February 9, 2010

The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN.  Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.

The abstract states:

Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims.  This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities.  Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences.  By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury.  This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.

After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization.  We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole.  Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty.  As always, we invite commentary and discussion here.

“The Numbers Speak”

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

Jeff Gamso at “Gamso – For the Defense” put up a thoughtful post that is responsive to the question I posed in my entry on the Gallup poll numbers.  You can visit check out his insightful analysis here: http://gamso-forthedefense.blogspot.com/2009/11/numbers-speak.html.

 

Do People Actually Care If the State Executes Innocent Defendants?

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

In October, Gallup released figures regarding its most recent poll on the death penalty.  The report is available on the Death Penalty Information Center website here.

The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).”  While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.

According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’”  As the report points out:

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case.  Justice Scalia, joined by Justice Thomas dissented from the order.  In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).

But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large.  Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved.  Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless?  How could one simultaneously hold both beliefs?

Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma.  Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment.  The Gallup numbers undercut the force of this assumption.  Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty.  The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…

The Right Wing Recognizes the Need for De-Criminalization

Posted in Uncategorized by Bidish J. Sarma on November 24, 2009

I was pleased to read this piece, entitled “Right and Left Join Forces on Criminal Justice” by Adam Liptak in the New York Times today. The article documents an important trend in the politics that govern the criminal justice system: many right-wing politicians and activists have taken a position against over-criminalization. Liptak effectively explains the varying conservative interests that have come together under the “anti-criminalization” banner:

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states. . . . Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

This trend stands in sharp contrast to the “tough-on-crime” conservative line that emerged in the 1980s and swept over the country. The realpolitik need for politicians to support tougher criminal sanctions and the death penalty became self-evident in the past two decades. Criminal punishment, for many years, looked like a one-way ratchet (see this post, explaining “just one single seemingly too lenient sentence has prompted an immediate legislative response, but often decades of seemingly too harsh sentences . . . will barely create a political ripple.”): sentences could only become harsher and the scope of behavior considered criminal could only expand. But, times have apparently changed. For now.

Ideologically, it makes sense that individuals skeptical of government power should hesitate to entrust life and liberty to the same State that they believe is incompetent to administer social welfare programs, regulate the economy, and efficiently tax its citizens. If conservatives harbored such doubts about the government, why did they so willingly give the federal and state government greater power in the criminal context? Why did they support more expansive criminal laws and harsher criminal sentences? Why did they profess such unyielding confidence that the government protects the individual’s right to a fair trial, and does not wrongfully convict and execute innocent people? The simple answer: political expediency.

I firmly believe that the current conservative alignment with liberal thinking on criminal justice issues is a temporary marriage of political convenience. But, it represents an important opportunity to correct some of the harm that has been done in the past 30 years. So long as the economy is a shambles, right-wing politicians can point to overcrowded prisons, burgeoning criminal court dockets, and massive government deficits and say – “see, we need to try something different.”

The Times article indicates that some conservatives have declared the shift in viewpoint to be fundamental. For example:

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Though I wish the shift was truly ideological in nature – as Meese suggests it is – this statement strikes me as nothing more than political posturing. Now is an opportune time to oppose “big government,” and the conservatives know it. Certainly some ideologues will continue to sing the same tune even if the economy rebounds or anti-crime legislation becomes politically expedient again. However, the emerging coalition is realistically a fragile one. I certainly hope that we make progress now.

As far as the death penalty is concerned, I am encouraged by the state legislatures that have sought to cut costs by eliminating capital punishment or limiting the circumstances in which it can be sought. My hope is that we can make enough progress to signal to the Supreme Court that our “standards of decency” have evolved as far as the Eighth Amendment is concerned, and that the perverse institution known as the death penalty will be done away with forever. Though anti-death penalty advocates must first win the battle in the states, those victories are not permanent; instead, they are subject to the will and whims of political opportunism. The fight can only end once-and-for-all in a court of law. Meanwhile, advocates of change in the criminal justice system should seize this moment to push forth the policies that will shrink government budgets, encourage rehabilitation and re-integration, and decrease criminalization.

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

Blog-Related News & Updates

Posted in Uncategorized by Bidish J. Sarma on October 2, 2009

First, Rob and I want to welcome our newest contributor – Sophie Cull.  We are glad to have a new writer and a new perspective on-board.  We think she’ll help diversify our blog.  She’s a criminologist (not a lawyer) and she has an international perspective because she hails from another country… two qualities we sometimes envy.  You can read more about each of us (and the blog in general) in the “About” section.

Second, I have the opportunity to spend some time in DC the next few weeks to watch this term’s first set of oral arguments before the Supreme Court of the United States.  I will take notes during the criminal law-related arguments and post recaps and my initial impressions each night.

Third, we want to encourage our site’s visitors to leave us comments.  A few interesting discussions have popped up in the comments section in the past two weeks, and we appreciate the back-and-forth exchange of ideas.