Once upon a time in the land of the midnight sun, a nearsighted woman was raped by two men. She identified a man as one of them and he was sentenced to prison. Now, with the aid of the Innocence Project, he wants his DNA compared with fluids donated by the rapist to prove his innocence, asserting his willingness to pay for the tests himself so the state will have no financial excuse.
Many states have fashioned procedures for such post conviction testing. Alaska is not one of them. Their high court denied his request in 2001. Now the U.S. Supreme Court has issued a 5-4 opinion upholding the denial. Chief Justice Roberts wrote for the majority. He could find no provision in the Constitution that mentioned the right to a DNA test. As an example of the philosophy of judicial restraint, he suggested that this was an issue that state legislatures are better able to address. He was joined by Alito, Thomas, Scalia, and Kennedy (the so-called swing vote).
Justice Stevens dissented, finding it outrageous that a man must serve a life sentence when there is a means of proving or disproving his guilt which is available, cheap, and certain. And, oh yeah, isn’t there a provision called the 14th Amendment which guarantees "due process"? He was joined by Ginsberg, Breyer and Souter, who filed as separate dissenting opinion - differing from the other dissenters in the issue of how broad a "right" should be.
The case presents a fairly clear example of what is at stake in the selection of Supreme Court justices. The trenches are deep and apparent: judicial restraint vs. judicial activism. The issue: is there a court of last resort when an injustice is ignored by legislatures and state courts?
To be clear, before trial, an accused has a recognized right to access of the evidence to test it. That right was recognized long ago by the same Supreme Court (in Brady v. Maryland). Also, during post-conviction habeas corpus proceeding, most states and federal courts authorize appointment of experts for DNA testing. State rules about these processes vary greatly - most impose nearly insurmountable obstacles to overturn convictions.
The fact is that the legal system is psychologically defensive about admitting its possible errors. The tradition and bias is to favor closure over certainty. Conservative jurists wax eloquently about the need for finality in the system. Public opinion generally concurs - how many times have you heard the media decry the "endless appeals" by prisoners alleging "technicalities" and using "legal tricks" to overturn convictions?
In the 90's, Congress passed legislation (with President Clinton’s support) limiting access to habeas corpus post-convictions appeals. We are now living with the effects of that misguided law. To date, more than 200 guilty verdicts have been proven by DNA evidence to have been wrong. Many of those innocent people had been condemned to death or life sentences.
Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts
Friday, June 19, 2009
Sunday, May 24, 2009
Obama and The Supremes: hit or miss?
The political spin amounting to a tornado is beginning in the imminent choice of a replacement for Justice Souter on the Supreme Court.
The Right righteously demands a non-activist moderate instead of a radical liberal. Coming from the same shrill voices that applauded the nominations of Clarence Thomas, Antonin Scalia, John Roberts and Sam Alito, who were intended to and have tilted the Court sharply to the right for the coming decades, amounts to monumental chutzpah.
None of these men is moderate when it comes to the critical close calls (the 5-4 votes) on social issues that have the most impact on our country. On issues such as racial and gender equality, access to the courts, executive vs. legislative power, federalism, government vs. business interests, criminal rights, all four of these men always — I mean always — find rationales to serve their radical biased personal views against abortion but for capital punishment, against expansion of civil liberties and for expansion of corporate freedom, against regulation to redress inequality and for limiting access to justice for individuals.
They mouth the words of respect for precedent unless they can find intellectually dubious paths around it. They decry judicial activism that overturns laws that express the will of The People unless they disagree with such laws and can find excuses to overturn them by resorting to a strict construction of the Constitution.
Reaction from The Left has been predictably disorganized. The most vocal have been particular one issue interest groups : environment, labor, press and so on. The loudest voices have called for an "identity" choice, i.e, a woman, Hispanic, or other minority to make the Court look more like America – as if that is a good thing in and of itself.
My view is that choosing on those bases could be disastrous. Clarence Thomas and Sandra Day O’Connor are examples. Single issue candidates might be just as bad. In my legal experience, for instance, those only interested in womens’ issues are often disinterested in criminal rights for others, especially where women are the perceived victims. The same is true about any single interest group.
On the other hand, Obama has made comments that might presage other problems. He wants someone who, though intelligently grounded in The Law, is also compassionate, possesses common sense, and understands the struggles of people in the real world. This scares the indignant intellects of The Right, who read liberal judicial activist into the definition.
It scares me for a different reason. I remember California’s recall of state Supreme Court justices, including Chief Justice Rose Bird, on the complaint that she and her allies on the Court imposed their personal views against capital punishment to overturn numerous death sentences. The recall campaign was actually funded by corporate interests that were more concerned with the Bird Court’s bias against them. A succession of conservative governors — Republican (Dukmejian and Wilson) and Democrat (Grey Davis) made appointments that turned the Court around. The result pleased corporate lawyers. The California Supreme Court now affirms virtually all death sentences, overtly favoring compassion for crime victims over the perceived sympathy for criminals of the previous Court. The conservative justices are no less result oriented than those they replaced. They just support their rulings with different reasons.
The lesson I learn reading these cases over the last thirty years is that "compassion" and "common sense" is just as subjective and useless a standard as "strict construction" and "judicial activism".
Obama’s dilemma is that he is intellectually honest, respectful of the Constitution, and a decent person. I fear that he will not be as ruthless in his choice as W. and his neo-cons were. Obama is not likely to insist on a litmus test that includes ideological orthodoxy. In other words, Obama will not choose someone as far to the Left as those chosen for the Right.
Pundits and Court historians like to observe that presidents have been often surprised and disappointed by their choices. True, Eisenhower regretted Warren, FDR regretted Frankfurter. But modern appointments have not provided such shocks. Vetting is much more thorough; no longer are justices seen as rewards for lengthy service. Disgusted by the Warren experience and Roe v. Wade, the Right has been vigilant about critical issues and disappointments have been rare exceptions. Nixon misfired on Blackmun and Powell, but he satisfied the Right with Renquist who Reagan elevated to Chief.
The truth is that Obama’s first choice — and any he is likely to make in this or his next term — are not likely to radically alter the Rightward lean of the Supreme Court for the foreseeable future. Except for Scalia (73), the other sure reactionary votes are in their prime: Thomas (61), Alito (59), Roberts (54). John Paul Stevens (89), Ginsburg (76 , with cancer), and Breyer (71) make up the usual opposition to the four votes from the unified Right. Souter, now retired, sometimes joined the three moderates. The so-called swing vote is usually cast by Anthony Kennedy (73), a Reagan appointee.
So replacement of Souter with a certain vote on the Left will not change the Court’s math. But a mistaken choice — a stealth conservative on issues other than the one the judge has clearly in focus, a weak personality who cannot influence others on the Court, or an older person who will retire too soon — would be a tragedy.
The Right righteously demands a non-activist moderate instead of a radical liberal. Coming from the same shrill voices that applauded the nominations of Clarence Thomas, Antonin Scalia, John Roberts and Sam Alito, who were intended to and have tilted the Court sharply to the right for the coming decades, amounts to monumental chutzpah.
None of these men is moderate when it comes to the critical close calls (the 5-4 votes) on social issues that have the most impact on our country. On issues such as racial and gender equality, access to the courts, executive vs. legislative power, federalism, government vs. business interests, criminal rights, all four of these men always — I mean always — find rationales to serve their radical biased personal views against abortion but for capital punishment, against expansion of civil liberties and for expansion of corporate freedom, against regulation to redress inequality and for limiting access to justice for individuals.
They mouth the words of respect for precedent unless they can find intellectually dubious paths around it. They decry judicial activism that overturns laws that express the will of The People unless they disagree with such laws and can find excuses to overturn them by resorting to a strict construction of the Constitution.
Reaction from The Left has been predictably disorganized. The most vocal have been particular one issue interest groups : environment, labor, press and so on. The loudest voices have called for an "identity" choice, i.e, a woman, Hispanic, or other minority to make the Court look more like America – as if that is a good thing in and of itself.
My view is that choosing on those bases could be disastrous. Clarence Thomas and Sandra Day O’Connor are examples. Single issue candidates might be just as bad. In my legal experience, for instance, those only interested in womens’ issues are often disinterested in criminal rights for others, especially where women are the perceived victims. The same is true about any single interest group.
On the other hand, Obama has made comments that might presage other problems. He wants someone who, though intelligently grounded in The Law, is also compassionate, possesses common sense, and understands the struggles of people in the real world. This scares the indignant intellects of The Right, who read liberal judicial activist into the definition.
It scares me for a different reason. I remember California’s recall of state Supreme Court justices, including Chief Justice Rose Bird, on the complaint that she and her allies on the Court imposed their personal views against capital punishment to overturn numerous death sentences. The recall campaign was actually funded by corporate interests that were more concerned with the Bird Court’s bias against them. A succession of conservative governors — Republican (Dukmejian and Wilson) and Democrat (Grey Davis) made appointments that turned the Court around. The result pleased corporate lawyers. The California Supreme Court now affirms virtually all death sentences, overtly favoring compassion for crime victims over the perceived sympathy for criminals of the previous Court. The conservative justices are no less result oriented than those they replaced. They just support their rulings with different reasons.
The lesson I learn reading these cases over the last thirty years is that "compassion" and "common sense" is just as subjective and useless a standard as "strict construction" and "judicial activism".
Obama’s dilemma is that he is intellectually honest, respectful of the Constitution, and a decent person. I fear that he will not be as ruthless in his choice as W. and his neo-cons were. Obama is not likely to insist on a litmus test that includes ideological orthodoxy. In other words, Obama will not choose someone as far to the Left as those chosen for the Right.
Pundits and Court historians like to observe that presidents have been often surprised and disappointed by their choices. True, Eisenhower regretted Warren, FDR regretted Frankfurter. But modern appointments have not provided such shocks. Vetting is much more thorough; no longer are justices seen as rewards for lengthy service. Disgusted by the Warren experience and Roe v. Wade, the Right has been vigilant about critical issues and disappointments have been rare exceptions. Nixon misfired on Blackmun and Powell, but he satisfied the Right with Renquist who Reagan elevated to Chief.
The truth is that Obama’s first choice — and any he is likely to make in this or his next term — are not likely to radically alter the Rightward lean of the Supreme Court for the foreseeable future. Except for Scalia (73), the other sure reactionary votes are in their prime: Thomas (61), Alito (59), Roberts (54). John Paul Stevens (89), Ginsburg (76 , with cancer), and Breyer (71) make up the usual opposition to the four votes from the unified Right. Souter, now retired, sometimes joined the three moderates. The so-called swing vote is usually cast by Anthony Kennedy (73), a Reagan appointee.
So replacement of Souter with a certain vote on the Left will not change the Court’s math. But a mistaken choice — a stealth conservative on issues other than the one the judge has clearly in focus, a weak personality who cannot influence others on the Court, or an older person who will retire too soon — would be a tragedy.
Thursday, May 14, 2009
Another Death Row Inmate Proved Innocent
Is the appointment of a Supreme Court Justice important?
Have innocent people been executed?
Is speedy justice in death penalty cases desireable?
L.A. Times of May 13, 2009 cites another in a long line of convictions which have been proved to be wrong by D.N.A. evidence which showed the condemned prisoner to have been innocent.
This one was from Tennessee. The inmate, Paul House, had been convicted of rape murder in 1985. He was a paroled rapist, who had been walking on a road near where the body was found. He "had no good" alibi - in other words couldn't prove his innocence.
Now, Peter Neufeld of the Innocence Project obtained tests of hairs, semen and material from under the victim's fingernails. The semen proved to be her husband's, and DNA of someone other than House was found in the other material.
Nonetheless, the Tennessee appeals courts and Federal appeals courts all denied a new trial, finding that the new evidence still didn't conclusively prove House's innocence, which is the standard a habeas corpus claim must satisfy to overturn a conviction.
The U.S. Supreme Court, in a 5-3 vote authored by J. Kennedy ordered the reversal. Chief Justice Roberts dissented. The Times article notes that a 4-4 vote would have resulted in House's execution.
The local prosecutor has now declined to retry House, saying "the new evidence 'raises doubts about his culpability...'" He noted that DNA science was not available 24 years ago when House was convicted. However, he still believes "House knew something about the slaying, even if he was not the killer."
The Federal Public Defender commented: "He is conclusively innocent... If the state ... had its way in this case, he would have been dead 10 years ago."
Have innocent people been executed?
Is speedy justice in death penalty cases desireable?
L.A. Times of May 13, 2009 cites another in a long line of convictions which have been proved to be wrong by D.N.A. evidence which showed the condemned prisoner to have been innocent.
This one was from Tennessee. The inmate, Paul House, had been convicted of rape murder in 1985. He was a paroled rapist, who had been walking on a road near where the body was found. He "had no good" alibi - in other words couldn't prove his innocence.
Now, Peter Neufeld of the Innocence Project obtained tests of hairs, semen and material from under the victim's fingernails. The semen proved to be her husband's, and DNA of someone other than House was found in the other material.
Nonetheless, the Tennessee appeals courts and Federal appeals courts all denied a new trial, finding that the new evidence still didn't conclusively prove House's innocence, which is the standard a habeas corpus claim must satisfy to overturn a conviction.
The U.S. Supreme Court, in a 5-3 vote authored by J. Kennedy ordered the reversal. Chief Justice Roberts dissented. The Times article notes that a 4-4 vote would have resulted in House's execution.
The local prosecutor has now declined to retry House, saying "the new evidence 'raises doubts about his culpability...'" He noted that DNA science was not available 24 years ago when House was convicted. However, he still believes "House knew something about the slaying, even if he was not the killer."
The Federal Public Defender commented: "He is conclusively innocent... If the state ... had its way in this case, he would have been dead 10 years ago."
Sunday, December 28, 2008
Obama and the death penalty
President Obama will have a full plate of immediate, if not emergency concerns, when he takes office. Death penalty policy understandably will not be the top priority for his administration.
Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.
A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.
Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."
Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.
During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.
Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.
Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.
A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.
Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."
Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.
During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.
Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.
Tuesday, July 01, 2008
June in a nutshell
George Carlin & Bo Diddley died...
I settled one murder case and picked up another one....
Some tasks were completed, some put off....
Hillary & Barack claimed an uneasy alliance...
Barack crabbed to the Center....
The Supreme Court ended its term, 5-4 votes reminding us that J. Stevens is 88, Bader Ginsburg is 75....
Ron is 73. ...
Interleague baseball proved again that the AL is far superior to the NL. ... Time to admit the DH rule is here to stay.
Tiger Woods proved again that he is a god.... Kobe proved he isn’t....
Another DA on one of my cases became a judge....
Two more friends retired....
I applied for Medicare.... gulp.
I settled one murder case and picked up another one....
Some tasks were completed, some put off....
Hillary & Barack claimed an uneasy alliance...
Barack crabbed to the Center....
The Supreme Court ended its term, 5-4 votes reminding us that J. Stevens is 88, Bader Ginsburg is 75....
Ron is 73. ...
Interleague baseball proved again that the AL is far superior to the NL. ... Time to admit the DH rule is here to stay.
Tiger Woods proved again that he is a god.... Kobe proved he isn’t....
Another DA on one of my cases became a judge....
Two more friends retired....
I applied for Medicare.... gulp.
Saturday, January 05, 2008
"The best of times ... the worst of times ..."
The U.S. Supreme Court accepted cert on a death penalty case arising in Louisiana which will provide an interesting test for the newly constituted Bush / Roberts court.
The defendant is appealing a death sentence for the crime of child rape, not murder.
For most of man’s history, capital crimes included any "felonious" (i.e., serious) crime. As Charles Dickens observed, writing about the late 18th Century custom,
The defendant is appealing a death sentence for the crime of child rape, not murder.
For most of man’s history, capital crimes included any "felonious" (i.e., serious) crime. As Charles Dickens observed, writing about the late 18th Century custom,
"[T]he hangman, ever busy and ever worse than useless, was in constant requisition; now, stringing up long rows of miscellaneous criminals; now, hanging a housebreaker on Saturday who had been taken on Tuesday; ... today the life of an atrocious murderer, and tomorrow of a wretched pilferer who had robbed a farmer’s boy of sixpence." ("A Tale Of Two Cities")
But after Caryl Chessman was executed in California in 1960 for multiple kidnap rape / robberies amidst public outcries, the Supremes ruled it a violation of the 8th Amendment to execute where no murder occurred. Chessman had been executed under a law enacted in the 1930's. California, like many other states, had made kidnaping itself a capital offense after the notoriety of the Lindbergh case.
A few years later, The US Supremes overturned a Georgia law permitting execution for rape of an adult (the victim was actually 16 years old) as "cruel and unusual punishment."
That has been the law in this country since. Now, as in the aftermath of the Lindbergh case, rage against abductors and molesters of children have led legislators in several states to reinstate the death penalty for such crimes.
Whether the Supreme Court, as presently constituted, will "honor precedent" as the recent nominees, Alito and Roberts, promised in their confirmation hearings, or will concur with their brethren Scalia and Thomas in a "strict interpretation" of the Constitution as it was intended in in the 18th Century is in serious doubt.
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