Two capital case are covered this week. Like most cases out of the Fifth CircuitROBERTSON v. JOHNSON is a lost holding that failure to instruct via special issue in a a capital case about mitigating evidence is not reversible error where the jury instructions instruct on mitigation through other means. Likewise the Eighth Circuit inOWSLEY v. BOWERSOX deined relief holding refusal to appoint substitute counsel did not violate petitioner's Sixth Amendment rights where he did not show any prejudice.

BUSH v. GOREpossibly offers a promising new venture into the realm of equal protection analysis and is examined at the end of this edition in a section style "Special Coverage."

The feature article this week examines actual innocence.

[Please note that due to a server error on my end last week's edition wasn't mailed out even though it was web posted. This week's edition includes all the cases and materials covered in last week's edition.]

Supreme Court

Cert questions from this past week.

Tyler v. CainQuestion(s) presented: (1) Does a petition for writ of habeas corpus asserting a claim of error under Cage v. Louisiana, 498 U.S. 39 (1990), rely on "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," within the meaning of the Antiterrorism and Effective Death Penalty Act [28 U.S.C. @ 2244(b)(2)(A)]? (2) Should a new rule of constitutional law announced in Cage v. Louisiana be made retroactively applicable to inmates seeking collateral review of their convictions?

Alabama v. Bozeman: Question(s) presented: Does the transfer of a prisoner from federal custody to state custody for one day for the purposes of arraignment, and transfer back to federal custody before disposition of the outstanding charges, require the dismissal of the pending state charges, because it is a violation of the "anti-shuttling" provisions of the Interstate Agreement on Detainers, even when no harm to the prisoner has been either alleged or demonstrated?

Capital Cases

OWSLEY v. BOWERSOX(8th Cir 12/11/00 - No. 99-3855) Trial court's refusal to appoint substitute counsel in capital case did not violate petitioner's Sixth Amendment rights where he did not show any prejudice. Petitioner's failure to preserve state court's refusal to admit evidence of voluntary intoxication precluded judicial review.

Mr. Owsley claims that the state trial court violated his constitutional rights by failing to appoint substitute counsel for him. He contends first that an irreconcilable conflict arose between him and his court-appointed counsel, James McMullin, during the course of preparation for his trial. Because of this conflict, Mr. Owsley alleges that there was a complete breakdown in communications and that Mr. McMullin was thus incapable of defending him effectively. Among other things, Mr. Owsley accuses Mr. McMullin of neglecting to meet and consult with him about his defense, failing to conduct all requested investigations, speaking to him in a condescending fashion, and calling him a profane name.

When considering a habeas corpus petition, we examine the record to determine whether the relevant decision of the state courts "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," see 28 U.S.C. § 2254(d)(1). In doing so, we are mindful of the recent interpretation of this statute in Williams v. Taylor, 120 S. Ct. 1495 (2000), where the Supreme Court emphasized that the phrase "Federal law, as determined by the Supreme Court," refers to "the holdings, as opposed to the dicta, of this Court's decisions," and cautioned that § 2254(d)(1) "restricts the source of clearly established law to this Court's jurisprudence," id. at 1523.

To obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he has not met this burden in this appeal. Mr. Owsley's claims must be rejected because he cannot provide us with any Supreme Court opinion justifying his position.

Mr. Owsley refers to a few Supreme Court decisions that, at most, deal only remotely with the issues of his case. See Holloway v. Arkansas, 435 U.S. 475 (1978), and Glasser v. United States, 315 U.S. 60 (1942). These decisions concern conflicts of interest that arise when an attorney represents multiple defendants in the same case, see Holloway, 435 U.S. at 484-85, 489-90, and Glasser, 315 U.S. at 75-76, a context that in no way resembles Mr. Owsley's situation. These cases are therefore inapplicable to Mr. Owsley's complaints about his personality conflicts with his counsel. Because there is no Supreme Court holding that controls the issue of Mr. Owsley's complaint, we cannot disturb the rulings of the Missouri state courts.

Mr. Owsley also contends that his constitutional rights were violated when the state trial court refused to appoint another attorney for him for the purpose of moving for substitute counsel. During the arguments on that motion, Mr. Owsley stated his reasons for asking the trial court to replace Mr. McMullin with another lawyer, and Mr. McMullin disagreed, in response, with several of Mr. Owsley's factual allegations. Mr. Owsley claims that Mr. McMullin's contradiction of his statements effectively left him without the assistance of counsel for the purposes of that motion.

Under the sixth amendment, a criminal defendant is entitled to have the assistance of counsel for all of the critical stages of his trial. See United States v. Wade, 388 U.S. 218, 226-27 (1967). To obtain relief based on a violation of the sixth amendment right to counsel, a defendant must prove, among other things, that he suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 691-92 (1984).

The Missouri Supreme Court found that Mr. Owsley did not suffer any prejudice at the hearing on his motion, see State v. Owsley, 959 S.W.2d 789, 793 (Mo. 1977) (en banc), cert. denied, 525 U.S. 882 (1998), and our examination of the record leaves us unable to say that this conclusion was unreasonable. See 28 U.S.C. § 2254(d)(2); see also Evans v. Rogerson, 223 F.3d 869, 872-73 (8th Cir. 2000). Indeed, Mr. Owsley does not indicate precisely how the state trial court's rejection of his request worked to his prejudice. We note, too, that Mr. Owsley had a full and fair opportunity to inform the trial court why he wanted someone else other than Mr. McMullin to represent him, and the record indicates that the trial court understood fully what Mr. Owsley was trying to say. This claim therefore fails.

ROBERTSON v. JOHNSON (5th Cir 12/04/00 - No. 00-10512) A trial court need not instruct a jury by special issue in order to consider mitigating evidence in a capital trial but may issue additional jury instructions instead.

To obtain a COA, Robertson must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Barrientes v. Johnson, 221 F.3d 741, 771 (5th Cir. 2000). To meet this standard, Robertson must demonstrate "`that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Barrientes, 221 F.3d at 771 (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000)).

"[T]he determination of whether a COA should issue must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Id. Under that section, we are required to defer to a state habeas court's adjudication of a state prisoner's habeas claims on the merits unless the state habeas court's decision: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or (2) constituted an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2).

The purpose and intent of § 2254(d) is to restrict the number of cases in which competent adjudications by our state courts are subjected to openended and unfettered review by the federal courts. For that reason, a state habeas court's decision will generally not be considered "contrary to" clearly established federal law unless: (1) the court's legal conclusion is in direct opposition to a prior conclusion of the United States Supreme Court on the same legal issue, or (2) the court reaches a different result than a prior decision of the United States Supreme Court on a set of materially indistinguishable facts. See Barrientes, 221 F.3d at 772. Similarly, a state habeas court's decision will not be considered an "unreasonable application" of clearly established federal law unless, notwithstanding the fact that the state court has correctly identified the controlling legal principles, the state habeas court applies those principles to the petitioner's case in an unreasonable manner. Id.

AEDPA likewise obligates the federal habeas courts to afford the state habeas court's factual determinations substantial deference. Indeed, we must presume that the state habeas court's factual determinations are correct, unless rebutted with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Robertson has not, in this case, satisfied AEDPA's rigorous standard for establishing error in the legal conclusions or factual determinations made by the state habeas court when adjudicating his claims. With respect to Robertson's first issue, his argument that due process required that his jury be given an instruction on the lesser included offense of murder, the state habeas court's legal analysis was appropriately premised upon the Supreme Court's decision in Beck. Robertson does not identify any other Supreme Court authority capable of calling the state habeas court's reliance upon that case or its application of that case unreasonable. Rather, Robertson's essential point is that the jury could have acquitted on the capital murder charge and convicted on a murder instruction because the jury could have rationally found that he did not form the intent to rob Mrs. Brau until after the offense was completed. We take his point to be primarily a challenge to the state habeas court's factual and record-based findings: (1) that there was ample record evidence to establish that Robertson formed the intent to rob Mrs. Brau before he killed her, and (2) that there was absolutely no record evidence to support Robertson's speculative contention that he could have formed the intent to rob Mrs. Brau after he shot her.

Having reviewed the record in light of Robertson's claim, we find no basis for finding that the state habeas court's factual determinations in this regard are either unreasonable or rebutted by clear and convincing evidence to the contrary. Robertson has not identified any actual record evidence, let alone clear and convincing evidence, that the factual conclusions of those courts were in error. Robertson's claims to the contrary are nothing more than supposition, which do not deserve encouragement and could not have served as the foundation of a rational jury finding. We therefore deny Robertson's motion for COA as to his argument that the trial court's refusal to give a murder instruction violated his constitutional rights.

With respect to Robertson's second issue, his argument that the jury instructions failed to provide an adequate vehicle for the consideration of constitutionally relevant mitigating evidence, Robertson's primary argument is that the state habeas court's decision was either contrary to or constituted an unreasonable application of the Supreme Court's decision in Penry v. Lynaugh, 109 S. Ct. 2934 (1989).

We disagree. Robertson proceeded to trial in August 1990, and he was sentenced to death in February 1991. At that time, the Texas death penalty scheme, codified at Texas Code of Criminal Procedure article 37.071, required affirmative answers to two special issues: one on deliberateness and one on future dangerousness. The statute further required an instruction on provocation, if warranted by the evidence.

In 1989, the Supreme Court reviewed this same version of the Texas statute in Penry. Penry held that the statutory issues standing alone, without further instructions to the jury, did not provide Penry's jurors with an adequate vehicle for rational consideration of constitutionally relevant mitigating evidence of Penry's mental condition. See Penry, 109 S. Ct. at 2949-52. The Supreme Court remanded the case for resentencing, requiring that additional instructions be given on the issue of mitigating evidence. The Supreme Court did not, however, direct that any particular scheme be used to permit consideration of mitigating evidence. Moreover, the Supreme Court framed its discussion primarily in terms of additional instructions that might be given to the jury, rather than in terms of an additional special issue. See id. at 2952; see also id. at 2943-44, 2948, 2949, 2951. Thus, Penry left the issue of precisely what instructions were required to permit proper consideration of mitigating evidence to the discretion of Texas trial judges.

When Robertson was tried, Texas courts were approaching the Penry issue on a case by case basis, with many employing instructions similar to those used in Robertson's case. See Goff v. State, 931 S.W.2d 537, 551 & n.3 (Tex. Crim. App. 1996); Lewis v. State, 911 S.W.2d 1, 6 & n.12 (Tex. Crim. App. 1995); Patrick v. State, 906 S.W.2d 481, 493-94 (Tex. Crim. App. 1995); Heiselbetz v. State, 906 S.W.2d 500, 503 (Tex. Crim. App. 1995); Riddle v. State, 888 S.W.2d 1, 7-8 (Tex. Crim. App. 1994); Garcia v. State, 887 S.W.2d 846, 860 (Tex. Crim. App. 1994); Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992). Robertson has not identified any portion of Penry or any other then-applicable Supreme Court authority that would render the approach taken by the Texas courts in general or his state habeas court in particular contrary to or an unreasonable application of clearly established federal law. Moreover, this Court has already rejected the argument that the approach taken by the Texas courts constituted an unreasonable application of the Supreme Court's decision in Penry. See Penry v. Johnson, 215 F.3d 504, 508-09 (5th Cir. 2000), pet. for cert. filed, (U.S. Nov. 16, 2000) (No. 900-6677).(3) We, therefore, deny Robertson's motion for COA as to his argument that the trial court's jury instructions on the issue of mitigating evidence failed to provide an adequate vehicle for the jury's discretion in this capital case.

HabeasCases

DELEON v. STRACK(2nd Cir 12/06/00 - No. 00-2022) Because the U.S. Supreme Court has permitted the use of restraints as a last resort, state courts have the discretion to determine that a defendant who made implied threats against those in the court room must wear handcuffs throughout his trial.

WASHLEFSKE v. WINSTON(4th Cir 12/06/00 - No. 99-7321) State prisoners do not enjoy constitutionally protected property interest in wages or interest earned from work programs advancing the state's important interest in managing its inmate population and pursuing rehabilitation efforts.

BURR v. SNIDER(8th Cir 12/14/00 - No. 99-4144) North Dakota Supreme Court's determination that state sex offender registration statute does not violate the prohibition against ex post facto punishment for crimes is neither contrary to nor an unreasonable application of clearly established federal law.

ARMIENTI v. US(2nd Cir 12/12/00 - No. 99-2102) Evidentiary hearing is required on defendant's ineffective assistance of counsel claim where defendant alleged that his attorney had a conflict of interest because prosecution was investigating the attorney for criminal violations.

WILKERSON v. CAIN(5th Cir 12/12/00 - No. 98-30693) Where a witness is crucial to the prosecution's case, the defendant must have the opportunity to cross-examine the witness about facts relevant to a possible motivation behind the testimony, such as a deal with the prosecutor.

MARKS v. CARMODY(7th Cir 12/12/00 - No. 00-2037) Qualified immunity protects police officers from suit by plaintiff falsely arrested for issuing bad check with intent to defraud under the Illinois Deceptive Practices Act, where officers acted reasonably, and with probable cause, when arresting plaintiff.

SHACKLEFORD v. HUBBARD(9th Cir12/12/00 - No. 99-15263) Jury instruction that told the jury that defendant could be found guilty of first-degree murder provided he "committed the crime of torture" was erroneous because torture is not a predicate crime for felony-murder.

ANTHONY v. CAMBRA(9th Cir 12/15/00 - No. 99-15458) Under 28 USC 2242, applications for habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions" such as Fed. R. Civ. Proc. 15(c).

QUINN v. HAYNES(12/06/00 - No. 99-7520) A state's interest in protecting victims of sexual abuse from needless harassment, humiliation and unnecessary invasions of privacy justifies requiring some showing of falsity, not mere denials, before inquiring about allegations of prior abuse.

WILKERSON v. CAIN(12/06/00 - No. 98-30693) Where prosecution's case hung on the testimony of a single eye-witness, the district court committed clear error in not allowing evidence suggesting that the witness was testifying in exchange for transfer to a different prison.

WOODS v. CITY OF CHICAGO(7th Cir 12/08/00 - No. 99-4069) Criminal complaint filed by assault victim with police alleging plaintiff committed assault gave police probable cause to arrest plaintiff, and act reasonably without a warrant for misdemeanor assault one day after the criminal complaint was filed.

MARX v. GAMMON(8th Cir12/06/00 - No. 99-3812) Properly filed post conviction petitions toll the one-year statute of limitations under 28 USC 2244(d), making timely a habeas petition filed one year and 40 days after final judgment.

MCROBERTS v. BOWERSOX(12/08/00 - No. 99-3844) Even though petitioner's failure to produce proposed witnesses at his post-conviction proceeding meant that the court was unable to rely on that testimony, substantial evidence of his guilt precluded a likelihood that the evidence would change the outcome of the trial.

NUCKOLS v. GIBSON(12/04/00 - No. 99-6325) Where admissibility of defendant's murder confession hinges on credibility of officer who solicited the confession, evidence that officer may have been himself a suspect in the underlying murder should be admitted.

PRESTON v. GIBSON(12/07/00 - No. 00-7069) Habeas petition filed three years after administrative and criminal penalties is untimely under 28 USC 2244(d)(1), and is not tolled by recent cases applying state law.

PEOPLE v. DUARTE(12/04/00 - No. S068162) Co-conspiratot's post-arrest statement that he and defendant had committed a drive-by shooting in retaliation for an earlier shooting, is not sufficiently reliable to be a statement against penal interest because it implicated defendant more than co-conspirator.

Section1983 & Related Filings

No cases noted this week.

InDepth Feature

This week's feature is called "A Summary of Actual Innocence" by the Death Penalty Information Center

The Innocence Project was created in 1992 when Barry Scheck and Peter Neufeld used new DNA testing techniques to prove that an alleged rapist had been wrongly convicted. Following this case Scheck and Neufeld received hundreds of letters from prisoners throughout the United States all begging for assistance in proving their innocence. At the time of writing the book, Actual Innocence, in August 1999, the Innocence Project had helped to free thirty seven wrongly convicted people, including several who had been sentenced to death. The book examines the reasons why mistakes are made, including:

False Confessions

In 1987 in Oklahoma, Robert Miller, a regular drug user, suggested to the police that he had some kind of psychic link to a murderer who had raped and killed a number of elderly women. In the twelve hours of interview that followed, Miller, prompted by police, gave a hit-and-miss account of the crime as seen through his ÒvisionsÓ. Miller was convicted of the murders and sentenced to death. In 1991 and 1993, DNA tests proved that Miller could not have been the rapist. Despite this and the fact that another man had been arrested and convicted of almost identical rapes in the same neighborhood, Miller was not freed until 1998.

Many people consider a confession to be the strongest kind of evidence of guilt. Studies show that up to 73% of juries will convict on confession evidence, even when the admissions have been repudiated by the defendant and contradicted by physical evidence. Among DNA exonerations studied by the Innocence Project, 23% of the convictions were based on false confessions or admissions.

White Coat Fraud

Fred Zain was frequently called as an expert witness by the state to testify that blood and semen evidence matched that of accused persons. In 1993, an investigation showed that Zain did no tests on some evidence and could not have reached the conclusions he testified to based on the tests he did carry out. The West Virginia state supreme court said, "as a matter of law, any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable, and inadmissible." By this time Zain had moved from West Virginia and was continuing his work in Texas, a death penalty state. Evidence suggests that ZainÕs is not an isolated case. ÒExpertÓ evidence is often given special weight by juries who have no way of knowing exactly what the expertÕs qualifications are.

Snitch Evidence and Junk Science

In 1987 Ronald Williamson and Dennis Fritz were convicted of a brutal rape and murder in Oklahoma when a jailhouse snitch claimed that she had heard Williamson confess to the crime. Hair found at the scene of the crime was said to be "consistent" with Fritz's hair. Williamson was sentenced to death and Fritz was given a life sentence. Williamson and Fritz were released in 1999 when DNA evidence exonerated them and implicated another man.

Thirteen other men (some 21% of Innocence Project cases) ultimately freed by DNA evidence were convicted through snitch testimony. New DNA tests carried out on the seventeen hairs found at the crime scene in the Williamson case and supposedly ÒmatchedÓ to Williamson and Fritz found that not one belonged to either defendant - a 100% error rate. Other proficiency testing programs have shown that error rates in making matches between hair samples were between 27.6 to 67.8% - little better than flipping a coin.

Prosecutorial Misconduct

Two investigators in the sheriff's office in DuPage County, Illinois, quit in disgust when the county pressed on with a case against Rolando Cruz and Alejandro Hernandez and ignored mounting evidence that the men were not guilty of the rape and murder of a child. A prosecutor in the attorney general's office also resigned after declining to prosecute the case. After twelve years and three trials, the charges against Cruz and Hernandez were eventually dropped. Following the case, three prosecutors and four sheriff's office investigators were indicted for perjury and obstruction of justice. All of the officials were acquitted.

Prosecutorial or police misconduct played a part in 63% of the convictions that DNA testing by the Innocence Project later overturned. Since 1963, at least 381 murder convictions in the United States have been reversed because of misconduct by police or prosecutors.

Representation

Dennis William's attorney in Illinois was so ineffective at his trial for capital murder that a Supreme Court judge stated that Williams had not gotten a decent day's work from his attorney. William's death sentence was later overturned. Lawyers who sleep through cases, do not understand the relevant law, or who were under the effects of drugs or alcohol during the trial, have been held to be effective counsel by the courts. Studies by the Innocence Project found that 27% of those wrongfully convicted had sub-standard legal assistance.

In many states those convicted of a capital crime have no right to assistance in the post-conviction appeals process and are therefore obliged to represent themselves. Stephen Bright of the Southern Center for Human Rights says, ÒMany of those poor people, particularly the illiterate or the mentally retarded, are no more prepared to file and litigate a postconviction challenge without a lawyer than a passenger can be expected to fly the Concorde to France without a pilot.Ó

DNA Evidence

At the center of many of the stories recounted in Actual Innocence is DNA evidence that eventually freed the innocent men. Kirk Bloodsworth spent nine years on death row in Maryland until DNA evidence proved that he was innocent of the horrific rape and murder of a young girl. The true killer has never been found. At the time Actual Innocence was written, seven men had been released from death row as a result of DNA evidence.

Special Coverage

In light of the historic Bush v. Gore opinion of the Supreme Court, the LA Times offered the following that may well offer potential litigation avenues that had been seemingly previously closed.

WASHINGTON--Over the last 15 years, the Supreme Court under Chief Justice William H. Rehnquist has made it nearly impossible to win constitutional claims of unequal treatment.

To succeed, the court has ruled, claimants must prove that government officials were biased and engaged in blatant discrimination. This high threshold is rarely crossed.

That is why many legal experts were taken aback this week when the high court relied on the equal protection clause to stop the manual recount of presidential ballots in Florida.

No one had alleged that the judges who would supervise the recounts were motivated by discriminatory bias.

Nonetheless, the claim proved to be a winner for lawyers representing Texas Gov. George W. Bush.

"We find a violation of the equal protection clause," the conservative majority said in Bush vs. Gore, because the recount process lacked the "procedural safeguards" to assure that counties would not treat unread ballots differently.

Until this week the court had consistently turned away equal protection claims, even when confronted with strong allegations of racial bias.

When defense lawyers challenged Georgia's death-penalty system as racially biased, they cited studies showing that murders involving whites were 11 times more likely to result in a death sentence than murders of blacks.

But on a 5-4 vote, the court in 1987 rejected that claim, ruling that the statistics did not prove that the Georgia officials were biased.

Rehnquist Rejects Drug Case Study

Four years ago, public defenders in Los Angeles alleged a pattern of bias in federal drug prosecutions. They said that during one year every person charged with a federal crack cocaine offense was black. A federal judge then ordered a study of drug cases in the U.S. attorney's office and cleared the way for the defense lawyers to question prosecutors.

But Rehnquist, speaking for the high court, overturned that order and quashed the study based on what he called "ordinary equal protection standards. . . . The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose."

Since the public defenders had no proof in advance that U.S. attorneys in Los Angeles were biased, they were not entitled to the study, he said.

The gap between the court's usual approach and this week's ruling has caused both debate and some despair among legal scholars.

University of Chicago law professor Cass Sunstein, who considers himself an admirer of the Rehnquist court, said that his faith in the justices has been shaken.

"The good thing you can say about this case is that it settled things in the least messy way. But as a matter of law it is a real embarrassment. It's the worst moment for the court, at least since Roe,"

Sunstein said, referring to the 1973 ruling in Roe vs. Wade that upheld the right to abortion.

"The equal protection holding is a bolt out of the blue. There is no precedent for it and there's no support in history for this type of ruling," Sunstein said. "And for it to come now in a 5-4 decision, it's just very hard to explain."

University of Virginia law professor A. E. Dick Howard also said that he finds the ruling difficult to explain on legal grounds.

"This is a remarkable use of the equal protection clause. It is not consistent with anything they have done in the past 25 years," Howard said. "No one even claimed there was intentional discrimination here."

Clause Dates Back to the Civil War

The guarantee of equal protection of the laws was added to the Constitution after the Civil War to protect black Americans from discrimination in the South.

During the late 19th century, the Supreme Court nearly erased this clause from the Constitution with the "separate but equal" doctrine that permitted rigidly racist practices.

The court revived the equal protection guarantee in 1954 with the Brown vs. Board of Education ruling that struck down official segregation.

The closest precedents for Tuesday's ruling came in reapportionment cases of the early 1960s.

Then, the court confronted a situation in which rural counties had far more power in many state legislatures than their populations would justify. For example, a rural county with 50,000 residents might have the same one vote in the state Senate as a city of 500,000.

Citing the right to vote and the equal protection clause, the court of Chief Justice Earl Warren said that voters were entitled to roughly equal representation. One such ruling, Reynolds vs. Sims in 1964, was cited in Tuesday's opinion.

UC Berkeley law professor John Yoo applauded the court's Bush vs. Gore ruling and said that the equal protection analysis "followed the logic of one person, one vote. This case took that logic and extended it to what the states do after the vote," said Yoo, a former law clerk for Justice Clarence Thomas.

In their dissenting opinions, two of the liberal justices--David H. Souter and Stephen G. Breyer--said they agreed that the Florida recount required "uniform standards" for deciding what is a legal ballot. It would not do to have "dimpled" ballots counted in one place but not in another, they said.

But the two justices acknowledged that an even wider disparity results from different voting systems. The older punch-card tabulators used in South Florida are far more likely to miss legal votes than the optical scanners used elsewhere in the state.

These "voters already arrive at the polls with an unequal chance that their votes will be counted," Breyer said in his dissent.

Until now, this difference in vote counting has not been seen as an equal protection violation. And academics who closely study the court and voting rights said they were uncertain whether Tuesday's decision says something important about equal protection or merely this year's election.

The conservative majority said that its constitutional ruling was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

J. Clark Kelso, a professor at the McGeorge Law School in Sacramento, said that the ruling may have little effect on the law, despite its enormous effect this week.

The equal protection analysis was "extremely underdeveloped" in the opinion, said Kelso, who clerked for Justice Anthony M. Kennedy when he was a federal judge. "Scholars are scratching their heads [because] the court was trying to say as little as it could to justify the opinion. It probably won't have much effect on the law other than in a case involving a manual recount of punch-card ballots in a presidential election."

But because the unsigned majority opinion speaks of the "fundamental rights of each voter," some say it might prove significant in the future.

It "certainly opens up a new avenue of litigation about voting--or at least it potentially does," said Harvard University law professor Randall Kennedy, who clerked for the late Justice Thurgood Marshall. "That is very ironic in that the razor-thin-margin majority is mainly constituted by people who in other areas have shown a quite remarkable indifference to equal protection claims."

In the past, claims of unequal treatment have been routinely rejected by the Rehnquist court.

For example, the justices have refused to hear constitutional challenges to federal drug laws, even though the punishment for those caught with crack cocaine is 100 times greater than for those caught with the same amount of powder cocaine.

In 1992, a new homeowner in Los Angeles brought an equal protection challenge to California's system of unequal property taxes.

Thanks to Proposition 13, which froze property values for existing homeowners, new buyers often found themselves paying taxes five or 10 times higher than their neighbors, even when their homes were identical. But the high court rejected the claim and said that states "have a large leeway" in setting tax rules.

Gay Bias Upheld in Boy Scout Case

The Rehnquist court also has turned away equal protection claims from gays and lesbians who have been discharged from the military because of their sexual orientation.

Earlier this year, the court intervened when state judges in New Jersey ruled that the Boy Scoutshad violated state antidiscrimination law by kicking out a Scout leader who said he was gay. The court, on a 5-4 vote, said that the Scouts have a 1st Amendment right to exclude gays. The majority was the same as in Tuesday's ruling in Bush vs. Gore, with Rehnquist joined by Justices Sandra Day O'Connor, Antonin Scalia, Kennedy and Thomas.

Before this year, Scalia has insisted that the court not use the equal protection clause to second-guess the states.

In 1996, the court struck down a Colorado anti-gay rights law on a 6-3 vote. In a thunderous dissent, Scalia accused his colleagues of an "act not of judicial judgment but of political will." The Constitution's equal protection clause does not warrant "the holding that homosexuality cannot be singled out for disfavorable treatment," Scalia said in a dissent joined by Rehnquist and Thomas.

There is one major exception to the trend of not invoking the equal protection clause. In a series of cases brought by whites challenging affirmative action, the Rehnquist court has intervened to strike down state laws that benefit minorities.

When North Carolina lawmakers redrew their congressional districts in the early 1990s, they created two of 12 with black majorities. They noted that while nearly 1 in 4 North Carolinians is black, the state had not sent an African American to Congress in the 20th century.

But on a 5-4 vote, the court struck down these districts as "racial gerrymandering" that violated the equal protection clause of the Constitution.

The court also struck down federal contracting laws that set aside some work for minority-owned firms. The majority consisted of Rehnquist, O'Connor, Scalia, Kennedy and Thomas.

Law professor Richard Lazarus, who runs Georgetown University's Supreme Court Institute, called Tuesday's Bush vs. Gore ruling "unsettling." The majority's legal position "seemed antithetical to most of their jurisprudence in the equal protection area," he said.

Added USC law professor Erwin Chemerinsky: "The Rehnquist court almost never uses equal protection jurisprudence except in striking down affirmative action programs. I can't think of a single instance where Scalia or Thomas has found discrimination against a racial minority or women or the aged or the disabled to be unconstitutional."

Errata

From theDeathPenalty Information Centerreports:

Oklahoma Prepares to Execute First Woman Since 1903

Wanda Jean Allen is scheduled to become the first woman executed in Oklahoma since statehood on January 11, 2001. Oklahoma City NAACP president Roosevelt Milton and others are urging the state Pardon and Parole Board to recommend that Governor Keating commute Allen's sentence to life without parole, saying her case illustrates the injustices of the death penalty. Allen's trial attorney, who had no previous experience with capital cases, tried the case with no co-counsel, no investigator, and no resources to hire expert witnesses. The trial court denied his offer to act as co-counsel for free if an experienced public defender was appointed as lead counsel. Mitigating evidence, such as Allen's low IQ and her psychological state and brain trauma from previous injuries, were not raised at trial.

Allen's clemency hearing before the state Pardon and Parole Board is scheduled for December 15. If executed, Allen will be the first African American woman to be put to death in the United States since Betty Butler was executed in Ohio in 1954. The last woman to be executed in Oklahoma was Dora Wright in 1903. (The Daily Oklahoman, 12/12/00 and National Coalition to Abolish the Death Penalty Press Release, 12/00) See also, Women and the Death Penalty

Philippine President to Commute Over 1,500 Death Sentences

On December 9, Philippine President Joseph Estrada announced plans to commute all of the country's death sentences to life imprisonment. The announcement came after Estrada was urged by Bishop emeritus Antonio Fortich to release all political prisoners before Christmas. Estrada agreed to release the prisoners, and added that he would commute the sentences of those under sentence of death. Earlier this year, Estrada approved a request by Catholic bishops for a moratorium on executions. According to press secretary Ricardo Puno, Estrada is also likely to commute the sentences of prisoners sentenced to death in the future. (Associated Press, 12/10/00) See also, International Death Penalty

Thailand Proposes Ban on Juvenile Death Penalty

In Thailand, a bill to ban the death penalty and life imprisonment for juvenile offenders was submitted by the Attorney-General's office to be put on the agenda for a December 12 cabinet meeting. If passed, the bill, which will replace the sentences with a maximum penalty of 50 years imprisonment, will bring Thailand's laws in line with international conventions that prohibit such penalties for juveniles. See also, Juveniles and International Death Penalty

Clinton Grants Stay of Execution for Garza; Texas Breaks Execution Record

Citing the findings of a Justice Department study showing racial and geographic disparities in the federal death penalty, President Clinton granted a six month reprieve to Juan Raul Garza, who was scheduled to be executed on December 12. "I am not satisfied that, given the uncertainty that exists, it is appropriate to go forward with an execution in a case that may implicate the very issues at the center of the uncertainty," said Clinton. (New York Times, 12/8/00) Considerable opposition to the execution had been expressed by major civil rights leaders, religious organizations, and legal experts from around the country. See New Voices.

Meanwhile, executions in Florida and Texas brought the total number of executions so far this year to 84. Claude Jones's execution marked the 40th execution in Texas this year, the most executions by any state in a single year in U.S. history. (Houston Chronicle, 12/7/00) Florida death row inmate, Robert Glock, II, whose execution was scheduled for December 8th, received a stay from the Florida Supreme Court.

Poll Finds Wrongful Convictions Leave Jurors Less Inclined to Impose Death Sentences

A recent poll of potential jurors by The National Law Journal and DecisionQuest found that recent exonerations of death row inmates, both by DNA and outside investigations, have made 31% of potential voters more inclined to vote for life imprisonment instead of the death penalty. In addition, the poll found that less than half of those surveyed believe that current procedures for reviewing death sentences are adequate. (National Law Journal, 12/11/00) See also, Recent Poll Findings

The Federal Death Penalty

The United States federal death penalty was first used on June 25, 1790, when Thomas Bird was hanged for murder in Maine. Since then, 336 men and 4 women have been executed under federal auspices. Of these inmates, 134 (39%) were white; 118 (35%) black; 63 (19%) Native American; and 25 (7%) were Hispanic or unknown. In the Twentieth Century, 61% of federal executions were of minority defendants.

The federal government has utilized hanging, electrocution, and the gas chamber to execute these 340 prisoners. The majority of inmates were executed for murder or crimes resulting in murder, but convictions for piracy, rape, rioting, kidnapping, and spying and espionage also yielded federal executions. There have been no federal executions since Victor Feguer was hanged in Iowa for kidnapping in 1963. See also, federal death penalty.

New Resources

The latest version of the NAACP Legal Defense Fund's "Death Row USA" (October 1, 2000) is now available on DPIC's Web site. The report shows that although there was a relatively small increase in the number of death row inmates since July 1, 2000, the increase of blacks on death row was more than double the increase of whites.

Former Pro-Death Penalty Legislator Plans to Introduce Aboliton Bill in Virginia

Republican Del. Frank D. Hargrove Sr., (R-Hanover) recently stated his intent to introduce a death penalty abolition bill in the upcoming General Assembly.

"One of the responsibilities of government is to protect the public. I have voted for the death penalty over the years numerous times." "But now that we have life without parole I believe that addresses the situation without a sentence that is irreversible." He said if you make a mistake in the death penalty, "you can't go back and reverse it." He said the death penalty cannot be shown to be a deterrent, that it probably costs no more to imprison an inmate for life than it does to pursue a death case through trial and appeals and that it's still an imperfect process even with DNA. "I know, politically, some folks will say they think I'm crazy, but I'm not interested in the politics of it," said Hargrove. "This eliminates the possibility of the awful mistake. It's not a political issue, it's not an economics issue." (Richmond Times-Dispatch, 11/14/00)

See also, New Voices

New Resources

Published by the International Commission of Jurists, "The Death Penalty: Condemned" (September, 2000) contains a collection of papers presented at the International Commission of Jurists's April 12, 1999 roundtable, "The Death Penalty: Some Key Questions." Papers address such issues as the needs of victims, and the use of the death penalty in the United States, the Russian Federation, and Trinidad and Tobago. Visit International Commission of Jurists's Web site to read the introduction. See also, additional resources

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