Five decision deserve attention this edition,In re Lott(Sixth Circuit);Earp v. Stokes(Ninth Circuit),USA v. Green, (D. Massachusetts); Cross v. Price (W.D. Pennsylvania), andTillman v. State(Utah). The cases share no unifying theme.

InIn re Lottthe prosecution filed a motion in the district court alleging that by claiming actual innocence Lott waived the attorney client privilege. The prosecution claimed it should have access to any incriminating statements made by Lott his attorney prior to trial. The district court agreed finding that such a holding waives the privilege. A split panel held that just because a petitioner files a claim relating to actual innocent he does not waive the attorney client privilege.

The Utah Supreme Court inTillman v. Statehas granted relief on a successive post-conviction petition. At trial the State's case relied heavily on a key witness, Sagers. An interview transcript of Sagers existed but the State denied its existence. After exhausting all the normal rounds of appeal Sagers applied for clemency. After denying for over a decade the document existed the State produced the transcript prior to the clemency hearing. The suppressed transcript, it appears, undermined the prosecution's case which is why relief was ultimately granted.

Federal District Court Judge Nancy Gertner (my choice for Chief Justice) inUSA v. Greenexamines the interplay of the federal death penalty and race. In a provocative opinion she finds that the federal government's seeking of death in this matter will result in an all-white (or nearly all-white) jury even though African-Americans comprise 20% of the county population in the county which all the events giving rise to the prosecution occurred. The Court gives specific orders on what remedial measures it wants to see. "This Court cannot -- yet again -- return to business as usual and cast a blind eye to real problems with the representation of African - Americans on our juries, and the crisis of legitimacy it creates."

The Ninth Circuit inEarp v. Stokessuccinctly sets forth why evidentiary hearings should be held in cases where there are potentially viable ineffective assistance of counsel claims. The Court "find[s] it difficult to know where a habeas court may draw the line in deciding how far defense counsel must go in conducting the mitigation investigation for the penalty phase of a capital case. We think the jurisprudential principle to be gleaned fromWigginsis that, although counsel is not required 'to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing[,]' they are in no position to decide, as a tactical matter, not to present mitigating evidence or not to investigate further just because they havesomeinformation about their client's background." Without an evidentiary hearing it is simply impossible to know what was and was not reasonable. Remand also had on prosecutorial interference with the defense.

In a "never say surrender" case, a federal district court on reconsideration grants habeas relief in Cross v. Price. The federal district court for the Western District of Pennsylvania granted relief on reconsideration as trial counsel let " the jury [be] misinformed that the defendant would be released on parole if it did not sentence him to death." Compounding this error was the jury being "(1) told by the defense expert that Cross was uncontrollably violent, and (2) told by Cross himself that he would one day be back out on the streets if they did not sentence him to death." Put another way, habeas counsel did a solid job where trial counsel didn't.

Judge Roberts has made several comments on habeas corpus, innocence and the death penalty at his confirmation hearings. Those comments are outlined below and also availablehere.

Elsewhere, Iraqhas resumedits use of the death penalty despite widespread international condemnation. Lawyers missing filing deadlines appears not to be limited to the United States, in JapanShoko Asahara's defense teammissed the deadline to appeal the death penalty for the doomsday cult guru convicted of masterminding a deadly nerve gas attack on Tokyo subways have missed the deadline for filing an explanation of their appeal over his death sentence.

From Louisiana numerous stories have been circulating about its death penalty and members of this community who live on the Gulf Coast.No lawyers are known to be among the missing and all capital defenders in the region are reported safe. Sister Helen Prejean & the Moratorium Campaign safely made it out of NOLA and the plan is to move all her operations (e.g., Moratorium Campaign) to Baton Rouge. TheJustice Centerand the four nonprofits it housedreportsall staff were safely evacuated and are attempting to set up temporary shop in Houston, Texas, near the offices of the Gulf Region Advocacy Center, however, have lost most of their office equipment and personal belongings;Clive Stafford Smithaddressed their stories in the Guardian. If there is even a small silver lining on this story, Sister Helennotes"Katrina put a moratorium on the death penalty in Louisiana for at least three years." You can help the Moratorium Campaign by contributinghereand the lawyers at the Justice Centerhere

Full edition archived athttp://capitaldefenseweekly.com/archives/050912.htm

As always, thanks for reading. - k

Executed

August

31 Timothy Johnston Missouri

September

14 Frances Newton Texas----female

Serious Dates

September

20 John Spirko Ohio

22 Michael Lynn Riley Texas

22 John Peoples Alabama

27 Herman Ashworth Ohio----volunteer

22 Alan Metheney (Indiana)

In Favorem Vitae et Libertatis

In re Lott, 2005 U.S. App. LEXIS 19429 (6th Cir 9/9/2005): Assertion of factual innocence does not waive the attorney client privilege.

Earp v. Stokes, 2005 U.S. App. LEXIS 19368 (9th Cir 9/8/2005): Evidentiary hearing granted on claims concerning prosecutorial misconduct involving efforts prevent a witness from testifying that the state's key witness was the real killer and on an ineffective assistance of counsel claim relating to failure to prepare and present mitigation evidence.

LeCroy v. Fl. Dep't of Corrections, 2005 U.S. App. LEXIS 18570 (11th Cir 8/29/2005) Death sentence vacated in light of Roper v. Simmons, habeas relief, however denied in all other regards.

USA v. Green, 2005 U.S. Dist. LEXIS 19037 (D.Ma. 9/2/2005) Remedial measures ordered in light of a dramatic under representation of African Americans after the feds decided to remove this case to federal court and to make it capital.

Cross v. Price ,2005 U.S. Dist. LEXIS 18510 (WD Pa 8/30/2005) On reconsideration after initially denying relief, habeas granted as trial counsel let " the jury [be] misinformed that the defendant would be released on parole if it did not sentence him to death." This "error was compounded by the effect the defense's mental-health mitigation evidence would have had on a jury operating under the erroneous belief that Cross would be paroled if sentenced to life" as "the jury was: (1) told by the defense expert that Cross was uncontrollably violent, and (2) told by Cross himself that he would one day be back out on the streets if they did not sentence him to death. The Commonwealth does not contest that as a result, the jury was prevented from considering and giving full effect to the mitigating evidence presented. Nor does it contest Cross' argument that counsel's error also essentially transformed the defense's mitigating evidence into powerful non-statutory aggravating circumstances that supported the imposition of capital punishment."

Tillman v. State, 2005 UT 56 (Utah 8/30/2005) Utah Supreme Court has granted a new penalty due to discovery abuse by the State. The State, through the entire first round of post-conviction review denied the existence of an interview transcript of its key witness. Counsel for Tillman prior to a clemency hearing requested again requested a transcript if one existed. Unlike the innumerable prior requests, this time one was produced. There was a good reason a prosecutor might not want the transcript released, it substantially undermined their case.

Torres v. State, 2005 OK CR 17 (Ok Crim App 9/6/2005): Failure to inform Torres of his rights under the Vienna Convention violated his rights under the Vienna Convention, but, the Governor's commutation of his sentence to life without parole rendered the error harmless.

Favoring Death

In re Bowling, 2005 U.S. App. LEXIS 19247 (6th Cir 9/7/2005) (dissent): Permission to file a successive denied on mental retardation and Brady claims. Interesting here is that Bowling appears to meet some definitions of mental retardation but Kentucky has adopted a rather narrow (although not the narrowest) definition of retardation. As the dissent notes: "While it is true that Atkins vests states with the primary responsibility for defining mental retardation, states are not wholly unfettered in this process. Rather, states must adopt mental retardation definitions and procedures for ascertaining a defendant's mental capacity that are in accordance with the Eighth Amendment's goals and principles."

Johnston v. Roper, 2005 U.S. App. LEXIS 18986 (8th Cir 9/1/2005) Timothy Johnston's execution was temporarily stayed with two of the three judges on a panel of the Eighth U.S. Circuit Court of Appeals voting for a stay according to press accounts. "Barely five hours later, the full Eighth Circuit bench overruled the stay at the request of Missouri Attorney General Jay Nixon. Johnston's lawyers then appealed to the U.S. Supreme Court, their last stop."

Thornburg v. Mullin, 2005 U.S. App. LEXIS 19284 (10th Cir 9/7/2005): Relief denied on claims including: (1) the admission of testimony by a witness that he had passed a polygraph examination; (2) the failure of the trial court to give voluntary-intoxication and lesser-included-offense instructions; (3) the admission of hearsay testimony; (4) the admission of photographs of the deceased; (5) prosecutorial misconduct; (6) ineffective assistance of trial counsel; (7) ineffective assistance of appellate counsel; (8) the presence of a carving behind the judge's bench that contained eye-for-an-eye language; and (9) the denial of his request for an evidentiary hearing.

USA v. Hargrove, 2005 U.S. Dist. LEXIS 18929 (D. Ks. 8/25/2005), A fairly standard pretrial order on penalty phase and federal death penalty challenges, save for one very peculiar and troubling argument, claims that the federal government has been intimidating mitigation witnesses. An evidentiary hearing (to be followed here) will be held on that claim in late September

State v. Leavitt, 2005 Ida. LEXIS 137 (Ida 8/31/2005): Relief denied on claims about the lack of jury participation in the sentencing process.

Bagley v. Biros, 2005 U.S. App. LEXIS 1943 (6th Cir 9/9/2005): The district court had granted relief on claims relating to the sufficiency of the indictment and related jury instructions as to the state's theory of capital murder in the penalty phase. "It is clear that the erroneous indictment and jury instructions at issue in the present case had no such effect or influence on the jury's verdict." Relief denied also on Biros's claims of "whether his statements to the police should have been suppressed, whether the prosecution's use of peremptory challenges to remove prospective jurors who expressed hesitation about the death penalty denied him a fair trial, whether the admission of cumulative and gruesome photographs denied him a fair trial, and whether sufficient evidence supports his conviction for aggravated robbery."

People v. Harris, 2005 Cal. LEXIS 9546 (CA 8/29/2005): Relief denied most notably on the failure to permit evidence relating to a "they needed killing" defense in the penalty phase as the victims were involved in the drug trade.

Other Decisions of Note

Osborne v. District Attorneys Office for the Third Judicial District, No. 04-35126 (9th Cir. Sept. 8, 2005) Prisoners can sue for access to DNA testing under section 1983.

Burt v. Uchtman, 2005 U.S. App. LEXIS 19218 (7th Cir 9/6/2005): Trial court and counsel both erred in disregarding clear indications Burt lacked the competence to proceed to trial.

USA v. Rodriguez-Berrios, 2005 U.S. Dist. LEXIS 19510 (D.P.R. 9/1/2005): When death is no longer on the table as a sentencing option, learned counsel should be discharged.

Outtakes

In re Lott, 2005 U.S. App. LEXIS 19429 (6th Cir 9/9/2005): Assertion of factual innocence does not waive the attorney client privilege.

In this case, the District Court applies implied waiver in a completely new context. Rather than finding that Lott had put his attorney's performance or strategic decisions at issue and determining that he took the affirmative action to waive the privilege, the court finds waiver in Lott's assertion that the police invented the confession and in his assertion that he is innocent. Neither of Lott's assertions relate to what his attorney knew or did in this case. Instead, they are assertions about Lott's actions, i.e, whether he killed McGrath and whether he confessed to the killing to the police. We have not been able to discover a single case where a court has found that implied waiver applied in a similar fashion.

Likewise, in her response to Lott's petition for mandamus, the District Court cites no authority for her implied waiver ruling. In accounting for her order, she writes: "A habeas court may imply a waiver of privilege to the extent necessary for the State to defend the claims a habeas petitioner raises." This broad [*23] statement does not take into account necessary distinctions. The standard for implied waiver is not lower in habeas cases than it is in any other type of case. The privilege remains the client's, and the client must take some affirmative step to waive it. While raising certain claims in habeas proceedings might require petitioners to make a limited waiver of the privilege, implied waiver is limited to situations where the petitioner has made the confidential relationship the subject of a constitutional inquiry. Importantly, the waiver is implied from the nature of the claim, not from the nature of the proceeding.

The court's ruling on implied waiver was not based in any way on Lott's injection of his communications with his attorney into the proceedings All agree that Lott has put neither the performance of his attorney nor the content of their confidential communications before the court. Instead, the court suggests that the assertion of actual innocence itself amounts to an implied waiver of the attorney-client privilege. In essence, the District Court ruled that the attorney-client privilege is simply not applicable in this peculiar, little area of the law where a habeas petitioner [*24] asserts his actual innocence of the crime for which he was convicted.

****

By freeing district courts of the strictures of the rules of admissibility, the Schlup Court makes no suggestion that courts are likewise unbound by the rules of privilege. It can hardly be said that the Court would take such a large leap silently. The distinction between admissibility and privilege is no stranger to the Supreme Court or any other. Suspending the rules of admissibility while preserving the rules of privilege is not an unusual event. The Federal Rules of Evidence direct courts to do just that in almost every single judicial proceeding: "Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . . . In making its determination, it is not bound by the rules of evidence [*27] except those with respect to privileges." Fed. R. Evid. 104(a) (emphasis added); see also Fed. R. Evid 1101(d); Bourjaily v. United States, 483 U.S. 171, 177-78, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987). Bearing this distinction in mind, it becomes clear that Schlup does not alter the rules of privilege.

The policies underlying privilege counsel strongly against expanding the scope of implied waiver. It is important to cabin the implied waiver of privileges to instances where the holder of the privilege has taken some affirmative step to place the content of the confidential communication into the litigation. The District Court's order would require that the privilege yield to reveal whether Lott ever made any statement inconsistent with that of an innocent man. Permitting this order to stand would place in jeopardy not only the attorney-client privilege, but also other important privileges such as the privilege between husband and wife, the privilege between patient and psychiatrist, or even the privilege between the penitent and their clergy. Since there is no linkage between the implied [*28] waiver ruling and the nature of the privileged relationship, there would be no logical reason to limit the ruling solely to the attorney-client relationship. A petitioner's discussions with his wife, his psychiatrist, or his priest would similarly be fair game when a petitioner asserts innocence. Demanding that a person waive any of these privileges in order to assert that he is innocent of a crime is inconsistent with society's historical insistence that these confidential relationships deserve protection.

It should also be noted that the contention of a habeas petitioner that he is innocent is not all that different from a criminal defendant's assertion that he is not guilty of a crime. If the attorney-client privilege should fail due to the assertion of innocence by a man who has confessed to his attorney, it is difficult to conceive why the privilege determination would be different for a criminal defendant who pleads not guilty. Breaking down the privilege in this case where the content or consequence of the confidential communications is not at issue would undermine the privilege at other stages of the proceedings where the party asserts innocence as a defense. The privilege [*29] would also be waived at trial after a plea of not guilty. The focus on actual innocence "does not modify the essential meaning of 'innocence.'" Schlup, 513 U.S. at 328 (noting that it is firmly established that "the line between innocence and guilt is drawn with reference to a reasonable doubt"). The fact that the habeas petitioner is proceeding in civil rather than criminal court and now bears the burden of proof is largely insignificant to the rules of privilege. Swidler & Berlin v. United States, 524 U.S. 399, 408-09, 141 L. Ed. 2d 379, 118 S. Ct. 2081 (1998) ("There is no case authority for the proposition that the privilege applies differently in criminal and civil cases."). Our dissenting colleague apparently does not see that this unity of civil and criminal law in respect to the privilege is a significant inconsistency in his argument in favor of piecemeal erosion of the privilege.

There is no way to affirm the District Court's ruling without abandoning centuries of jurisprudence concerning the scope of the attorney-client privilege and endangering the full and frank communication between clients and attorneys.

Earp v. Stokes, 2005 U.S. App. LEXIS 19368 (9th Cir 9/8/2005) Evidentiary hearing granted on claims concerning prosecutorial misconduct claim involving efforts to dissuade a witness from testifying that the state's key witness may have committed the offense and on an ineffective assistance of counsel claim relating to failure to prepare and present mitigation evidence.

The Supreme Court has conveyed a clear, and repeated, message about counsel's sacrosanct duty to conduct a full and complete mitigation investigation before making tactical decisions, even in cases involving similarly egregious circumstances. Based on this mandate, we hold that the district court abused its discretion in denying Earp's request for an evidentiary hearing and remand for such a hearing. At the proceeding, the Warden will have the opportunity to challenge Earp's allegations and the evidence rallied to support his claim. Earp will also have the opportunity to further substantiate his allegations. In other words, Earp must be given a full and fair hearing on his ineffective assistance of counsel claim.

Although counsel clearly has a duty to conduct a full and complete mitigation investigation, we find it difficult to know where a habeas court may draw the line in deciding how far defense counsel must go in conducting the mitigation investigation for the penalty phase of a [*35] capital case. We think the jurisprudential principle to be gleaned from Wigginsis that, although counsel is not required "to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing[,]" id. at 533, they are in no position to decide, as a tactical matter, not to present mitigating evidence or not to investigate further just because they have someinformation about their client's background, id. at 527. Moreover, Wigginsalso establishes that the presence of certain elements in a capital defendant's background, such as a family history of alcoholism, abuse, and emotional problems, triggers a duty to conduct further inquiry before choosing to cease investigating. Id. at 525. How far they must go is obviously heavily fact-dependent and cannot be ascertained here without developing a more complete evidentiary record on remand.

Earp's claim invokes the essential issue in Wiggins: whether counsel's decision, based on a limited amount of information, to cease further investigation into mitigating evidence deprived Earp of his constitutional [*36] right to effective assistance of counsel. As stated in Wiggins, the issue in Earp's case is not whether Dell should have presented certain mitigation evidence during the penalty phase, but whether she should have investigated further before deciding to cease investigating. "We focus on whether the investigation supporting counsel's decision . . . was itself reasonable." Id. at 523. We conclude that an evidentiary hearing is required because Earp's allegations are sufficient to trigger the need for a hearing on whether Dell's investigation was unreasonable in light of the evidence she uncovered.

During the penalty phase, attorney Dell's mitigation presentation consisted of testimony from five witnesses. Earp's aunt and mother testified about his family background and childhood: his father's alcoholism, physical abuse of Earp's mother, and emotional abuse of Earp and his siblings; his stepfather's alcoholism, violence, and abuse of Earp, his mother, and his siblings; Earp's father's suicide and its effect on Earp; and Earp's juvenile history, including time spent in juvenile detention. Earp, 978 P.2d at 30-31. Gloria Hall, a juvenile facility [*37] cook from Earp's time in CYA detention, opined that Earp committed crimes as a juvenile because of his family situation, and stated that Earp "was awarded honor status" at the facility. Id. at 30. Virginia MacNair testified that she and Earp's son visited him in jail, and that Earp sent them letters and pictures. Id. James Park, the former associate warden at San Quentin, testified that he thought Earp "would pose no danger in a high security prison" and that he would adjust well to confinement. Id. Although Dell presented this mitigation evidence, Earp contends that her investigation was still insufficient in light of the evidence she uncovered.

Earp claims that his penalty phase presentation would have "materially benefitted" from evidence and testimony about his violent family and social background, substance abuse, mental illness, history of emotional problems, and brain injury. SeeStankewitz, 365 F.3d at 721-22 (finding that petitioner's penalty phase representation would have benefitted from information about the petitioner's background, history of mental illness, and substance abuse problems). In his motion for an evidentiary hearing on this claim, [*38] Earp stated that he would present: (1) testimony of counsel as to her failure to obtain and present family and personal background; (2) evidence as to family and personal history obtained by habeas counsel, including records of emotional problems and possible psychological and neurological problems stemming from early childhood, medical evaluations evincing organic brain damage which may have exacerbated Earp's behavioral problems, as well as testimony from family and friends regarding Earp's ongoing substance abuse; and (3) expert testimony regarding prejudice.

In support of his claim, Earp presented the district court with: declarations from family members providing additional details about his background; declarations from family members, associates, and a CYA counselor discussing his history of substance abuse; declarations regarding Earp's time spent in CYA custody; an expert report finding that Earp's psycho-social history and neuropsychological functioning prior to, during, and after commission of the crime may have presented a viable defense because Earp's test results and records were "consistent with organic damage[] [caused] by traumatic brain injury"; and an expert [*39] report as to counsel's failure to render effective representation.

If true, the facts alleged may well paint a materially different picture of Earp's background and culpability, the very things considered relevant and vital to a competent mitigation presentation. See, e.g., Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir. 2003). First, the declarations set forth a more detailed view of Earp's family background. For instance, the declarations allege details of Earp's father's (Don Earp) alcoholic binges, sometimes leading to police dispatches and often resulting in serious beatings of Earp's mother. n13 They also outline Don Earp's slide from alcoholism into suicide after being severely beaten himself, discussing how his violence toward the family and "uncontrollable rages" intensified. The declarations also set forth an account of Ricky Earp's life after his father's suicide spent in the company of a similarly abusive and alcoholic stepfather in a house where "finances, and indeed even food and shelter were inconsistent." The declarations detail the trauma that his father's suicide caused Earp. Seeid. at 1087-89 (finding deficient counsel due, [*40] in part, to failure to investigate and present additional evidence of petitioner's family background and "difficult childhood"); see alsoWiggins, 539 U.S. at 525 (finding ineffective assistance for failure to investigate petitioner's background involving abuse, alcoholism, neglect, and emotional trouble).

Second, the declarations from friends and family outline a history of substance abuse that the state court did not address and that the district court found to be unimportant. The declarations state that Earp's drug abuse began with smoking marijuana when he was twelve or thirteen years old, and that he later used other illegal drugs on a regular basis, including methamphetamine, cannabinol, LSD, and other hallucinogenics. The declarants also note that Earp consumed large quantities of alcohol during his teen years, sometimes selling marijuana to adults in exchange for the [*41] purchase of alcohol. SeeLambright v. Stewart, 241 F.3d 1201, 1207 (9th Cir. 2001) (determining that counsel's failure to obtain a psychiatric evaluation of the petitioner where he had a history of "extensive drug abuse," among other things, constituted deficient performance and warranted remand for an evidentiary hearing).

Finally, the declarations, records, and reports regarding Earp's emotional and neurological history allege additional mitigation grounds. Earp's school records, including progress reports, psychological evaluations, and testing results, contain details that should have caused counsel to investigate further. Specifically, a psychological report conducted after repeated behavioral problems stated that Earp "should be considered for at least partial Educationally Handicapped placement" and that "such placement would be on an emotional disturbance basis." The report goes on to note that "alternate ways to deal with disturbing behavior and emotionally charged feelings should be explored, as well as the desirability of outside agency counseling." The report also discusses Earp's test results and observations, finding that Earp was "very troubled," suffered [*42] from "a great deal of anxiety," and was "having trouble coping emotionally."

USA v. Green, 2005 U.S. Dist. LEXIS 19037 (D.Ma. 9/2/2005) Remedial measures ordered in light of a dramatic underrepresentation of African Americans after the feds decided to take this capital case from state authorities.. "This Court cannot -- yet again -- return to business as usual and cast a blind eye to real problems with the representation of African - Americans on our juries, and the crisis of legitimacy it creates." Relief ordered includes:

a) For all summonses returned to the Court as “undeliverable,” the same number of new summonses should be mailed to residents who live in the same zip code area as the undeliverable summonses targeted;

***

c) [ ] additional summonses should sent in numbers equal to the number of nonresponses in a given zip code area without determining whether the nonresponses are in fact undeliverables.

****

In the final analysis, Professor Abramson sums up the issues best:

However the Court rules on the motion before it, it is certainly worth the attention of the District Court as a whole as to whether public confidence in the integrity of the jury system is undermined by a jury selection process that is not truly random but makes chances of being called vary according to the 69 Drafters of the JSSA expressly eliminated the need "to prove prejudice as a condition of judicial intervention when substantial noncompliance with the act is established." H.R. Rep. No. 1076, 90th Cong., 1st Sess. 13. The prejudice standard was seen as too burdensome. Id. 70 “[T]he alleged violations must be weighed against the underlying principles of the Act.” United States v. Calabrese, 942 F.2d 218, 227 (3rd Cir. 1991) (internal citations omitted); see also United States v. Brummitt, 665 F.2d 521, 528 (5th Cir. 1981) (“[d]etermining substantial compliance requires weighing the alleged violation against the goals of the Act”); United States v. Gurney, 393 F. Supp. 688, 701-702 (M.D. Fl. 1974) (substantial noncompliance is “a patent violation of the spirit and letter of the Act”). diligence of one's town in listing all residents.

Abramson, Report, at 26.

In the subsequent sections, I describe in detail what is a “substantial” violation of the Act, what the duty to supplement the source list comprises, whether the duty has been violated in this case, and the remedy under the JSSA.

****

In light of the District Court’s failure to direct the federal Jury Administrator to supplement deficient resident lists, as is required by the JSSA, § 1863(b)(2), the jury selection of the defendants is stayed pursuant to § 1867(d) until the measures described above are implemented. The Court's orders, however, are to be immediately implemented. The Court has every confidence that the remedial measures will be effected by the scheduled trial date. One thing is clear: This Court cannot -- yet again -- return to business as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates.

Tillman v. State, 2005 UT 56 (Utah 8/30/2005). Utah Supreme Court has granted a new penalty due to discovery abuse by the State. The State, through the entire first round of post-conviction review denied the existence of an interview transcript of its key witness Sagers. Counsel for Tillman prior to a clemency hearing requested again requested a transcript if one existed this time one was produced. There was a good reason a prosecutor might not want the transcript released, it undermined their case.

As discussed above, the State concedes that the first two prongs n14 of Tillman's Brady claim are met in this case. Therefore, we confine our inquiry to a determination of whether the absence of the suppressed transcripts prejudiced Tillman during the sentencing phase of his trial. We conclude that Tillman was prejudiced by the absence of the evidence and therefore affirm the district court's decision to vacate his sentence and order a new sentencing hearing.

In order to determine whether the absence of suppressed evidence favorable to the [*58] defense resulted in prejudice to a defendant, the evidence in question must be "material." See Strickler, 527 U.S. at 282-83. A defendant can successfully establish materiality by showing that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433 (internal quotation omitted). A sufficiently reasonable probability of a different outcome is established "when the government's evidentiary suppression undermines confidence in the outcome." Id. at 434 (internal quotation omitted). When undertaking a materiality analysis, the suppressed evidence must be evaluated in light of the entire record. Agurs, 427 U.S. at 112. An "item by item" evaluation of the suppressed evidence may be conducted, but it is the cumulative or collective effect of the suppressed evidence that ultimately must be weighed to determine whether confidence in a particular outcome is undermined by the absence of the suppressed evidence. See Kyles, 514 U.S. at 436 & n.10.

In accordance with the standard outlined above, [*59] we must determine whether the absence of the following evidence at Tillman's trial undermines confidence in the death sentence imposed by the jury: (1) the dramatic improvement, just before trial, in Sagers's ability to recall the sequence of events leading up to and following Schoenfeld's murder, (2) the appearance of coaching by Sgt. Thirsk, (3) the numerous notations of laughter indicating inappropriate levity on the part of Sagers, and (4) Sagers's statements that Tillman was depressed and suicidal prior to the murder.

The State argues that the suppressed evidence is too inconsequential to justify disturbing Tillman's death sentence. Tillman disagrees, arguing that the presence of the suppressed evidence at trial would have significantly undercut the prosecution's efforts to justify the imposition of the death penalty. In essence, Tillman asserts that the ability to more effectively attack Sagers's credibility and increase her moral culpability in the eyes of the jury would have had a positive impact on his sentencing process. n15 The State, on the other hand, argues that Sagers's credibility and moral culpability are not relevant to a determination of whether Tillman [*60] deserves the death penalty.

The district court agreed with Tillman, stating that "the less credible [Sagers's] testimony was shown to be, the greater her degree of moral culpability would have been in the minds of the jurors. Moreover, the greater her moral culpability, the less likely jurors would have voted to impose a sentence of death on [Tillman]." The district court did not explain why it concluded that a death sentence would be [*61] less likely for Tillman if Sagers's moral culpability were increased in the minds of the jurors. On appeal, the State argues that there is no rational explanation for the district court's pronouncement. We disagree.

A critical component of the prosecution's argument justifying the imposition of the death penalty on Tillman was that Sagers herself, like Lori Groneman before her, was one of Tillman's victims. The success of this strategy depended heavily on the prosecution's ability to diminish, to the greatest extent possible, any moral culpability on the part of Sagers. The prosecution attempted to accomplish this goal by painting Sagers as a submissive, innocent young woman who was swept away by the deviousness of Tillman. During the guilt phase of Tillman's trial, the prosecution stated that Sagers "got subjected into this situation because of the fact that she was a virgin, because of the fact that she felt guilty about an abortion, and all the rest." At the penalty phase of Tillman's trial, the prosecution's theme was reprised. The image of Tillman corrupting Sagers was once again brought to the jury's attention, with the prosecution stating that Tillman led Sagers [*62] "to believe one thing when . . . another was occurring. And I think you look at Carla Sagers and the devastation that has occurred to her life and you say to yourself, 'There is a lot of victims [sic] in this case.'"

The prosecution painted Tillman as a man who repeatedly manipulated and took advantage of innocent women, with Sagers merely serving as his latest victim. The prosecution attempted to convince the jury of this by analogizing Sagers to other women in Tillman's life. For example, the State pointed out that Lori Groneman became sexually involved with Tillman when she was an impressionable seventeen. Although Sagers was thirty when her own sexual relationship with Tillman commenced, the prosecution pointed out that it was Sagers's first sexual experience and stated that "sexual relationships are very serious business, especially for someone like Carla." The prosecution also drew parallels between Sagers and Tillman's wife. "Consider Carla Sagers, who interestingly enough sort of reminded me a little bit of Mr. Tillman's wife, led along, led to believe one thing when in fact another was occurring." By drawing these parallels, the prosecution was strongly implying [*63] that Tillman engaged in a pattern of behavior destructive to the women he encountered--a pattern, the prosecution suggested, that could only be terminated by Tillman's execution.

As the above excerpts show, the efforts to reduce Sagers's moral culpability were not undertaken solely to boost her credibility on the witness stand. Those efforts were also an attempt to justify the imposition of the death penalty on Tillman and to alleviate concerns in the jurors' minds about the potential for drastic disparity in punishment if Tillman received the death penalty while Sagers, pursuant to her immunity grant, walked away completely unpunished. The prosecution directly acknowledged the disparity likely weighing on the jurors' minds, stating that the jurors may have asked themselves, "if we execute or find the sentence of death against Mr. Tillman, shouldn't we also find one against Carla Sagers?" The prosecution chose to address that concern by taking great pains not only to relieve Sagers from moral responsibility for the murder, but to actually cast her as another one of Tillman's victims.

The suppressed evidence that was unavailable to Tillman during his trial [*64] could have been used to undermine the prosecution's attempts to diminish Sagers's moral culpability and present her as another in a long line of Tillman's victims. The suppressed transcripts reveal that, shortly before trial, Sagers experienced a marked improvement in her ability to confidently recall the sequence of events surrounding Schoenfeld's murder. Additionally, the transcripts contain numerous passages in which Sgt. Thirsk appears to be coaching Sagers to enable her to supply a more believable narrative. The evidence of Sagers's dramatic improvement of memory and the appearance of coaching on the part of Sgt. Thirsk directly affect Sagers's credibility as a witness, which may have led the jury to believe that Sagers was more involved in the murder than her testimony implied. Tillman could have utilized this evidence to portray Sagers's testimony as a work in progress, carefully honed by the prosecution over the course of many months, and which only took its final shape mere days before trial. The information contained in the suppressed transcripts would have helped Tillman advance the argument that Sagers's testimony was forged in the heat of Sgt. Thirsk's interrogations and [*65] was motivated by a desire to please the people who had granted her complete immunity.

Similarly, Tillman could have utilized evidence of Sagers's inappropriate levity during her interactions with Sgt. Thirsk not only to attack her credibility, but to more directly confront the efforts by the prosecution to present her as just one more of Tillman's many victims. The State concedes that the notations of laughter could have led the jury to consider Sagers a more reprehensible person, but then asserts that any moral assessment of Sagers is irrelevant to Tillman's sentencing proceeding. We reject the State's argument that there is no connection between the jurors' assessment of Sagers and their assessment, for sentencing purposes, of Tillman. Evidence tending to undermine Sagers's status as an innocent young woman corrupted by Tillman would have aided Tillman during the penalty phase of his trial. The more morally reprehensible Sagers appeared to jurors, the less inclined they would be to view her as a victim. Further, increased moral culpability on the part of Sagers would throw into even harsher relief the disproportionate treatment of Tillman when compared with the treatment [*66] of Sagers. The record reveals that the prosecution itself was concerned that the disparity in treatment would potentially disincline the jury to impose the death penalty, and any evidence tending to widen that disparity would have likely affected the jury's deliberations in the penalty phase.

We express no opinion as to whether, as a general matter, it is appropriate for juries to consider punishments imposed on co-defendants or accomplices when determining whether the death penalty is appropriate. This case involves a unique situation in which the prosecution attempted to present Sagers not as an accomplice to murder, but as a victim of the capital defendant. This characterization made Sagers's moral culpability for the crime highly relevant to the ultimate sentencing determination because, if the defense could show moral culpability on the part of Sagers, it would undermine a critical justification for the imposition of the death penalty. The State's grant of full immunity to Sagers, while obviously an indication of the value of her testimony, can also be viewed as an attempt to bootstrap Sagers into the status of an innocent victim, undeserving of punishment. In this [*67] sense, the grant of immunity is just another marker of Sagers's alleged status as "victim," a status designation that Tillman was certainly entitled to attack as part of his defense.

Finally, the defense was unable to take advantage of Sagers's express statement in the suppressed transcripts that Tillman was depressed and even suicidal prior to Schoenfeld's murder. At the time of Tillman's trial, section 76-3-207(2) of the Utah Code listed several non-exclusive mitigating factors to be considered by juries during the sentencing phase of trials. Included in that list was that the "murder was committed while the defendant was under the influence of extreme mental or emotional disturbance." Utah Code Ann. § 76-3-207(2)(b) (Supp. 1982) (current version at Utah Code Ann. § 76-3-207(4)(b) (2003)); see also id. § 76-3-207(2)(g) (allowing capital defendants to present "any other fact in mitigation of the penalty" during the sentencing phase of trial) (current version at Utah Code Ann. § 76-3-207(4)(g) (2003)). If information about Tillman's depression and suicidal thoughts prior to Schoenfeld's murder had been presented [*68] to the jury, it may have affected sentencing deliberations.

We are convinced that, when considered collectively and in light of the entire record, the evidence contained in the suppressed transcripts is of sufficient import that its absence at trial undermines confidence in the sentence imposed on Tillman

Focus

Find below outtakes relating to habeas and capital punishment related issues. From the AP

July 13 Senator Durbin

DURBIN: Thank you, Mr. Chairman.

Judge Roberts, Mrs. Roberts, family and friends, the end is near, at least for this leg of the race.

Welcome to Night Court.

(LAUGHTER)

I was struck by a question and answer by Senator Grassley to you earlier today. The question was this: Is there any room in constitutional interpretation for the judge's own values or beliefs? And your response: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself, to other sources.

Judge Roberts, I recently finished a book about Justice Blackmun and his service on the Supreme Court, and it was a fascinating book about his life on the court and his life in the federal judiciary.

And I found it interesting that near the end of his term on the court, a couple cases occurred which really spoke to the heart of the man. One was DeShaney v. Winnebago County, a poor little boy who had been beaten and abused, left retarded, by dereliction of duty by many of the county officials or state officials in Wisconsin in an effort by his mother to hold them accountable.

And they failed in the Supreme Court, but Justice Blackmun wrote a dissent, which he prefaced, Poor Joshua. And he said at one point, in response to someone who wrote him afterwards about the court, Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions.

The other thing that occurred in Blackmun's legal career, his judicial career, was a real change in his view on the death penalty. And I think most of us are aware of the famous statement which he made: From this day forward, I no longer shall tinker with the machinery of death.

DURBIN: The last case that he voted with the majority on, in favor of the death penalty, was a case that you were involved in, the Herrera case. You were deputy solicitor general, at that time.

It involved the case of individual in Texas who had been accused of killing two police officers. He tried to reopen his case, offering evidence that his brother, who had since died, had actually been the killer.

He turned to the federal court because he lost his time for reconsideration of the case by Texas law. He argued a claim of actual innocence.

Justice Blackmun, in his statement at the end of this case, said:

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too in an execution when a condemned prisoner can prove that he is innocent. The execution of a person who can show he is innocent comes perilously close to simple murder.

That was a dissent -- or, I should say, a Blackmun opinion in that case -- that addressed your position that you had espoused as deputy solicitor general.

Did you read that -- Blackmun?

ROBERTS: Yes, Senator, I did.

DURBIN: Were you struck by the language there? And the reason I ask that question is, it's been 11 years since we've had a Supreme Court nominee before us, and a lot of things have happened in relation to the death penalty in America.

We look closely at defendants who are young, those who are not mentally sufficient to stand trial. And we also now have the issue of DNA.

In my state of Illinois, we found 12 people on death row who were innocent people, and the Republican governor pardoned them after the evidence came out.

Tell me in that context, as you look at this, and talk about what appeared to be a very sterile and bloodless process, as you answered Senator Grassley, tell me goes through your mind and your heart when you think about addressing the death penalty, what happened in the Herrera case, and what we should look to from the court in the future when it comes to the Eighth Amendment and the death penalty.

ROBERTS: Well, I think it's important, first of all, to appreciate that the issue in the Herrera case I think was misportrayed as an issue of actual innocence. The issue in the Herrera case is: At what point should new claims, in this case the claim after his brother died -- Well, guess what? I didn't do it, my brother did it, and he's dead now. That is to some extent a claim of innocence. But it's the sort of claim that did not have, as the courts determined there, sufficient factual support to be taken seriously.

That's quite different from a claim, for example, of the DNA evidence. Now, that's an issue that's working its way up and I don't know want to comment on it other than to say that it seems to me that that type of claim, that somebody who just died was the actual murderer, is different from the scientific issue. They're just different cases.

So I don't think that one should be taken as suggesting a view on the other.

Obviously, any case involving the death penalty is different. The court has recognized that. The irrevocability calls for the most careful scrutiny.

It is not an area in which I've had to consider cases as a judge up to this point.

And I certainly know the magnitude of the concern and the scrutiny that all of the justices bring to that question. It's just different than other cases. There's no doubt about that.

And DNA evidence obviously I think is a very important and critical issue.

No one wants an innocent person executed, period. And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law.

Now, as I said, there are cases coming up in there, so I don't want to say anything further on that.

July 14 Senator Leahy

LEAHY: I raise this, because -- and I'm not trying to pin you on a particular case -- I think we're going to see more and more of this. We're in a digital age. A lot of information is readily available.

At the same time, the bad part about that is our government can acquire more and more and more information on us, just as your credit card company or anybody else does on you.

And some of us want to be in a position to be able to go in and find out what is being collected on us; to what extent are we giving up our privacy?

And usually, far more than the Congress or anybody else, it's been the media that's exposed when this has been overdone, when mistakes or violations are done. And I would hope that you would be committed to protecting just as much as possible access, rather than the other way around. Let me go to an issue we discussed yesterday -- or others did -- the issue of capital punishment.

We've held in this committee a number of hearings that show some real flaws in the administration of capital punishment: you know, sleeping lawyers, drunk lawyers, lawyers who didn't bother even to investigate or didn't have the funds to do it. More than 100 death- row inmates have been exonerated; some, though, who have spent years on death row under the most horrible conditions for a crime they never committed.

I think Senator Durbin mentioned a situation out in Illinois where a Republican governor had to, and did -- courageously I felt -- extend clemency to a whole lot of people who had been on death row.

Some say -- and I think you have even said this -- when they're exonerated, it shows the system works.

Well, let me tell you about the system in that case. One of the people is Anthony Porter: spent 16 years on death row. He was within two days of being executed.

The system didn't work on behalf of the government doing. A bunch of kids from Northwestern University, who had taken as an elective course a course on journalism, and the teacher said, Why don't you look into a couple of these? and these kids went out and did it.

The kids dug up the information that was there available to the police, available to the prosecutor, available to the defense. Nobody dug up. They found it, and within two days of his execution, the state's attorney dropped the case. They got somebody else to confess.

You said two years ago -- and I remember being at that hearing -- you said that, on the startling numbeer oof innocent men sentenced to death who are later exonerated, you responded somehow showed the system worked in exonerating them.

I worry about that statement, I really do.

It bothered me. You know, I voted for you for the circuit court, and there was a split vote in our party. But that one really bothered me, that statement. I found it almost mechanical, and I'll tell you why.

When we have people say innocent people who have been freed after years on death row shows the system was working, it doesn't. I think Sandra Day O'Connor said two years ago, If statistics are any indication, the system may well be allowing some innocent defendants to be executed. If that's the case, the system is not working. In Herrera, we've discussed that. The court grappled with it and didn't ultimately decide: Does the Constitution permit the execution of a person who is innocent?

And as principal deputy solicitor general, you co-authored the amicus brief for the U.S. in the Herrera case. You say the claim of actual innocence does not state a ground for federal habeas.

Actually, you said, quote, Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.

So let me ask you this, without going to the facts of Herrera: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he's executed?

ROBERTS: Well, Senator, this is the basis of the disagreement in Herrera. Herrera is not a case about actual innocence. It's a question of whether you are entitled to bring a new claim.

LEAHY: Well, listen to my question. To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?

ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?

And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That's what Herrera was about.

Now I don't think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn't be in prison, let alone executed. But the issue...

LEAHY: Does the Constitution permit the execution of an innocent person?

ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let's have a new trial? Or do you take into account the proceedings that have already gone on?

LEAHY: I'm looking for broad principles here. You said -- let me read it again -- does the Constitution require that a prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?

In our view, the Constitution does not guarantee the prisoner such a right.

Is that your view today?

ROBERTS: Well, that's what the court held in Herrera?

LEAHY: I know. Is that your view today?

ROBERTS: Well, I'm not in the position to comment on the correctness or incorrectness of particular court decisions. That's the court's precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.

LEAHY: That's a position you took. The Supreme Court's going to revisit this issue in House v. Bell. Because you stated a position on that, does that require you to recuse yourself in the House v. Bell?

ROBERTS: No, because the position was stated in a brief filed on behalf of the administration. And we've talked yesterday about the established principle that lawyers do not subscribe as a personal matter to the views they present on behalf of clients.

LEAHY: Well, in this case, the client's the United States. I mean, you're stating the position, sort of the -- what do they call it? The 10th justice?

ROBERTS: Well, I was the deputy solicitor general on the brief. I didn't argue the case. The solicitor general was the counsel of record in the case. But the position presented in the brief as an advocate is not necessarily the position of every lawyer on the brief.

LEAHY: I think you were more than just a lawyer on the brief. You were one of the most sought after jobs, picked because of your position. I was very impressed when I talked with you about your use of Latin, for example, and French.

And I'm always impressed with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I'll translate it: (SPEAKING IN LATIN). He who acts through another acts for himself. And that's not the case in Herrera?

ROBERTS: He who acts for another acts for himself? Well, it's the client acting through the lawyer and it's the client who is acting for themselves...

LEAHY: You are the client in this case when you are -- the solicitor general is the client, in effect.

ROBERTS: No, Senator, I disagree with that. The solicitor general represents the interest of the United States and those positions represent that client's position. And in the Herrera case, again, it was the solicitor general who was responsible for the position that was advanced. I'm not suggesting in any way that I disagree with it or agree with it. I'm just saying that it is a basic principle in our system that lawyers represent clients and you do not ascribe the position of the client to the lawyer.

It's a position that goes back to John Adams and the Revolution.

LEAHY: Let me ask you this, then. Let me ask you something that couldn't be ascribed to a justice of the Supreme Court. It's something that both the chairman and I have talked a lot about.

And that goes into some of the mechanics. And if you will let me take a moment, you understand these but, for the audience, the so- called rule of four: It takes only four justices to grant cert, but it takes five to grant a stay of execution.

Usually the courtesy is that, if you get four, a fifth one will sign on. That has not always been followed of late. Of course, we are dealing with the life or death issue. Senator Specter called it bizarre and unacceptable and sent in legislation to change it.

How do you feel if you were chief, if you had four other justices now voting for a stay of execution? Do you feel, as chief, you should do the courtesy of the rule of five and kick in the fifth one?

ROBERTS: It's an issue that I'm familiar with. I do know it arose. And I thought the common practice -- the current practice -- was that, if there are four votes to grant cert, that the court would grant the stay even though that does require the fifth vote, so that you don't have a situation..

LEAHY: It usually occurred -- yes, but that's because one more says, OK we've got four. We will put somebody else's name on here.

ROBERTS: Right.

LEAHY: But that hasn't been followed all the time recently. It usually was. And that's why both Senator Specter and I have raised concern.

Do you feel the earlier practice of once you have four...

(CROSSTALK)

ROBERTS: I think that practice makes a lot of sense. I don't want to commit to pursue a particular practice in an area that I'll obviously have to look at in the future. But it obviously makes great sense that, if you have four to grant and that's the rule, that you will consider an issue if there are four to grant; you don't want to moot the case by not staying the sentence.

LEAHY: Right. And I appreciate that, because I know we find a lot of cases where they are perfectly willing to grant cert on monetary damages, but here it's kind of get it right. It doesn't make much difference with an appeal after the execution. You wrote a memo regarding -- in fact, in '83, to the White House lawyer -- you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court's case load.

In that memo you volunteered the following: If the justices truly think they're overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court's docket each term.

Are you saying that judges are just too busy to pay attention to death cases?

ROBERTS: No, Senator.

LEAHY: What are you saying. How do you feel today? That was '83. How do you feel now, 22 years later?

ROBERTS: Well, in '83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don't want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there's the capability there to hear more cases today, not fewer.

And I'm sure there are reasons for the reduction in the case load that I'm not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.

LEAHY: My time is up, but I think you'll find both the chairman and ranking member of this committee believe they could handle more.

Thank you, Judge.

ROBERTS: Thank you, Senator.

July 14 Senator Feingold

FEINGOLD: Thank you, Mr. Chairman.

I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here.

But I appreciate your answer to those questions.

I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue. But, Judge Roberts, as Senator Leahy mentioned earlier, when you came before the committee a couple of years ago we discussed the fact that more than 100 people on death row have been exonerated and released, and in fact I believe the number is now 121 people who we know were sentenced to die for crimes they did not commit.

I want to follow up on the work that Senators Durbin and Leahy have done in discussing with you the Herrera case. I do differ with your characterization of the case. The solicitor general brief that you signed presented the issue as whether the Constitution, quote,

requires that a prisoner have the right to seek judicial review of a claim of newly discovered evidence, unquote. That is, the question was not how strong the evidence of innocence must be, as you seemed to be suggesting earlier, but whether the Constitution requires that there be some avenue (inaudible) presenting evidence of innocence in federal court. Your brief argued that it does not.

Now, that brief also, as you know, contained a footnote that I'm going to ask you to comment on. It said, quote, There is no reason to fear that there is a significant risk that an innocent person will be executed under procedures that the states have in place. The direct review and collateral procedures that the federal government and the states have in place are more than ample to separate the guilty from the innocent. And yesterday you talked about the possible effect of DNA evidence on the legal framework in this type of case.

In light of the many cases of innocent people ending up on death row that have come to light in the past decade, and aside from what was the ultimate issue at stake in that case, do you still agree with your statement from the government's Herrera brief?

ROBERTS: Well, that was the administration position at the time. It was one that the Supreme Court agreed with; 6-3 I think was the ruling.

ROBERTS: I know Justice O'Connor was in the majority.

The issue -- and again, there was obviously argument at the time about what the issue really was in Herrera. And I thought it was quite inaccurate to view it as a case involving the question of whether actual innocence could be presented. Because it was a claim of newly discovered evidence. And it was a claim that somebody who just died was actually the murderer.

At the end of exhaustive appeals to the state system, exhaustive collateral review through the state system, exhaustive collateral review through the federal system, is there an obligation to decide at that point that a new claim that somebody else committed the crime...

FEINGOLD: I'm just running out of time and wonder if you'd just still stand by the statement, if you could just say yes or no.

ROBERTS: Well, that was the administration position that was presented.

FEINGOLD: All right, let me try to be quick on it. I'd like to know whether you think there's a risk that innocent people may be sentenced to death in today's criminal justice system.

I must say, Judge, Supreme Court justices do have the power of life and death in these matters.

ROBERTS: Senator, I think there is always a risk, in any enterprise that is a human enterprise, like the legal system. Obviously, the objective of the provision of the rights to a criminal defendant in trial, the provision of collateral review at the state level, the provision of collateral review at the federal level, the availability of, as you suggested, clemency, all of that is designed to ensure that the risk is as low as possible.

There are issues that are going to be presented about the availability of DNA evidence which may or may not help reduce the risk even further.

There's always a risk.

And obviously when you're dealing with something like capital punishment, the risk is something that has to be taken extremely seriously, at every stage of the process.

As we talked about more than two years ago at the prior hearing, I think the most effective way of minimizing that risk is to ensure that people facing that sanction have the best counsel available at every stage.

As you know from looking at this problem, the issue that comes up are questions that weren't raised that should have been raised if the person had a more capable lawyer. Avenues that weren't pursued that should have been pursued, if that lawyer had the resources.

And that's where I think the risk of wrongful conviction is going to be most effectively addressed, ensuring the availability of competent counsel at every stage of the proceeding.

FEINGOLD: Thank you, Judge.

July 14 Senator Kyl

KYL: And I noted yesterday, in response to a question, you said,

Well, that's the reward for trying to be more expansive. You were talking about Griswold v. Connecticut. I thought at the time, boy, he's expressing a view on a relatively recent case and, at least, issues associated with it are clearly going to come before the court. And I wondered, does that go too far, does that cross the line?

But your point was the specific issue in the case and the precise holding of the case are not likely, in your view, to come before the court. And therefore, you expressed your opinion about that case and the law underlining the ruling in the case. So I would agree with you that, not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the court -- although, as you note, it's at least possible that some of them might.

So hopefully you haven't gone too far there.

This, I think, is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials who make policy and judges who are not supposed to make policy.

I thought the questioning, I believe it was by Senator Brownback earlier, was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint.

Many of us believe that the court has not exercised appropriate self-restraint in all cases and that, when it doesn't, it naturally generates concern expressed by the citizens of the country, as reflected certainly by their elected representatives.

And we do express that concern.

I think the court has failed to exercise appropriate restraint in several matters. And one of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I'm not sent there to make law; I'm sent there to take whatever case comes before us and just decide the case.

And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.

I think you've expressed it very well. And while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place, and you've certainly provided us with a great deal of information in the process.

KYL: And, again, partly because you've explained to us, when you could not completely satisfy a senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.

And I also think it's important that you have totally eschewed ideology here, saying that your own personal views or ideology don't have a place in your decision making, and therefore they are pretty irrelevant to the questions that are asked here.

I've got a whole notebook of questions here that to one extent or another have been dealt with, I think, by colleagues. And I don't think it serves a purpose to go over them again.

Let me just conclude with kind of a general comment, but before I do just try to correct the record on -- not necessarily correct, but add to the record on one very narrow point.

You were discussing, I believe with Senator Kennedy, the Herrera v. Collins case, and he talked about innocence claims being heard by the court, that a prisoner should have the right to present innocence claims.

I just wanted to ask you, is it not the case that in that Herrera v. Collins case, that it did not address the proper route for bringing claims based on newly discovered forensic evidence, such as DNA testing, which is, of course, a relatively new phenomenon now, but that was not the issue presented in that case?

ROBERTS: That's right.

There wasn't -- I don't know if they had as much access to that type of evidence back then when it was argued.

ROBERTS: But it was certainly not that type of evidence.

It was a new claim that somebody else did it, somebody who had just died. That was the new claim that they sought to raise at the last stage there. And I do think any issue arising with respect to DNA evidence, and those issues are working their way up through the court, those cases would have to be addressed on their own terms.

KYL: Yes. Thank you.

Well, let me conclude with this point.

Some who are watching might come to the conclusion that there's a lot of repetition here, and that to some extent there's a lot of senator talk expressing concern to you about different issues that are important to them.

Frankly, I think this is a once in a lifetime opportunity. It is the only time that before you take your position on the court, you'll have the opportunity to be directly lobbied in the political context in an appropriate way.

We reflect the views of our constituents, and we've all got different issues on our minds, and there isn't a one of them that is not a legitimate issue or concern.

I brought up the matter of applying foreign law to American decisions on our Constitution for example. It seems to be appropriate that you hear from us, the political branch, concerns that we have about the way that the court approaches its job. We may be right, we may be wrong, but it's important for you to hear that.

I know that justices read the newspapers and so on, but this is a very good forum to have expressed to you concerns that we have about various issues. And we wouldn't be talking about them if we didn't think that they would come before the court.

So, in a sense, virtually everything we're talking about we're trying in some way to get a point across to you because we believe it is likely to be decided by you.

And I think that's fine. You need to hear from us what our concerns are, even though perhaps we're trying to draw you out in areas that you obviously can't be drawn out in with respect to future cases.

It's also important for us to get the feedback from you. There won't be very many other times that we will have as a group of senators to sit down with the person that will likely be the chief justice of the Supreme Court and have a legal conversation with you.

We'll have to talk about matters relating to court administration. That'll be totally appropriate. And I'm sure we'll be doing that.

But by and large, this is the only chance we have to have this kind of an interchange with you. It is illuminating to me, as a student of constitutional law, someone who's practiced before the court.

KYL: I've learned a lot.

July 15 Senator Feingold

FEINGOLD: Turning again to the death penalty, when you worked in the Reagan administration, you expressed strong opposition to federal courts reviewing criminal convictions and state courts via writs of habeas corpus.

As you know, prisoners who believe they were wrongly or unfairly convicted in state courts may seek to have the federal courts hear their claims via a writ of habeas corpus. Habeas corpus is a fundamental part of our legal system that has long protected individual freedom.

In a 1981 memo, you argued that the availability of federal habeas relief to state prisoners, quote, goes far to making a mockery of the entire criminal justice system.

In that same memo, you said, quote, The question would seem to be not what tinkering is necessary in the system, but rather, why have federal habeas corpus at all, unquote.

Then, in 1983, as Senator Leahy brought up yesterday, you suggested that if the Supreme Court wanted to reduce its case load, it should quote, advocate the role of fourth or fifth guesser in death penalty cases, unquote. Not on First Amendment cases or antitrust cases but death penalty cases.

I know that you've said that your memos in the Reagan administration reflected the views of the administration and not your own, but in this area, at least, your memos clearly indicate, I think, that these were your views.

With the 1981 memo, for example, there's a cover note in your handwriting directing that the memo be sent to John Rose (ph), an assistant attorney general at the time, with a cover note that reads, quote, The attached memorandum contains some thoughts on habeas corpus reform, for whatever you think they're worth. Judge Friendly and Justice Rehnquist would never have forgiven me if I'd remained mute, unquote.

That sounds a lot like a memo advocating your views not those of the department.

With regard to the memo from 1983 that I mentioned, you were analyzing the chief justice's proposal to create another intermediate appellate court to take the pressure off the Supreme Court's docket. And you said, and I quote, My own view is that it is a terrible idea. And you went on to say that the fault lies with the justices themselves who take too many cases, including death penalty cases.

And you sent a personal letter to Judge Friendly in 1981 that said, quote, This is an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered. To cite just one example, serious thought is being given to reform of habeas corpus. I do not know what will eventuate, as you noted. What has come to pass as the great writ is regarded by many lawmakers with no idea of the problems as unalterable perfection, unquote.

Now, that discussion in a personal letter sounds like your own opinion as well.

A decade later, when you were at the solicitor general's office during the first Bush administration, you signed several briefs that sought to strictly limit federal habeas review. And in 1992, while in private practice, you testified before the House Republican Task Force on Crime in favor of further habeas restrictions.

The comments in your memos from the 1980s, I'm sorry to say, don't even show the slightest concern about innocent lives possibly being lost if federal habeas were eliminated.

Does the possible hostility toward the habeas process that was expressed in those memos, particularly in death penalty cases, reflect your current view on federal habeas or have your views changed or evolved?

ROBERTS: Well, as you know, the law has changed and evolved dramatically since the early '80s. And, at least with respect to my personal letter to Judge Friendly -- I guess I thought it was a personal letter...

(LAUGHTER)

... the situation has changed dramatically, as you know.

What I was referring to in the early '80s was a situation where there were no limits on repetitive habeas corpus petitions; four, five, six, dozens of different petitions could be filed repetitively.

Congress saw that as a problem. Congress acted to address the very concerns that I was raising there and passed legislation.

The Supreme Court saw it as a problem. The Supreme Court acted in a number of cases, the Keeg case and others, in limiting the availability of successive and repetitive habeas petitions.

Actually, what happened is the Supreme Court, I think, started down that path and Congress made the decision that this is something they should look at in a more comprehensive way. So Congress passed laws that restrict when people can file repetitive and successive petitions.

Those are the very concerns that I was talking about. They were concerns that had motivated the first person I worked for as a lawyer, Judge Henry Friendly, to write on the subject. He wrote a famous article on habeas reform entitled Is Innocence Irrelevant?, because he thought these successive petitions had made sort of a game out of the whole process in which the question of innocence was totally lost in these successive petitions.

And the references to the great writ -- yes, of course the writ of habeas corpus has an established heritage as a basis for complaining about illegal confinement, but all the stuff we're talking about there, the fourth and fifth successive petitions, raising new issues that should have been raised in the first petition -- and as you know, that's what Congress' legislation focused on.

FEINGOLD: But, Judge, did you not at the time, as I read in your statement, advocate the abolition of federal habeas review?

ROBERTS: No. The purpose of what I was saying was to certainly reform and abolish the system as it existed then, where people could file repetitive and successive petitions. And I'll tell you why.

The main problem, and I think it's a particular concern in death cases, is that nobody along the way feels that they're making a responsible decision. If people get in a situation where they know, OK, if you're on a jury and you sentence someone to death, if you, think, 'Well, he's going to file habeas petitions in state court and they're going to look at it then'; and the person who considers the state habeas petition says, 'I know there are going to be successive federal habeas petitions, they look at the issue then'; everybody is pointing fingers in opposite directions.

When Congress reformed this system, I think it helped to make clear that the decisions that are going to be made on the first habeas petition is going to be critical, and so, hopefully, it's looked at a lot more carefully than in the prior system when you knew that wasn't the end of the process, it wasn't even the beginning of the end; the conviction was just the end of the beginning.

FEINGOLD: Would you agree that had the view that you advocate in your memos prevailed in the early 1980s, the abolition of the writ, and federal habeas review of state court convictions was removed entirely, had that happened, innocent people would have been executed and serious constitutional errors would have gone unaddressed?

ROBERTS: Well, that wasn't my position.

FEINGOLD: But I'm asking...

ROBERTS: No, my...

FEINGOLD: ... had that view prevailed, not necessarily your personal view, but the abolition of the writ, isn't it the case that innocent people would have been...

ROBERTS: I'm not in favor now and was not in favor then of not allowing any federal habeas review.

FEINGOLD: I'm asking you whether you wouldn't agree that, as a matter of fact, had the writ been eliminated, that some innocent people would have been executed.

ROBERTS: Well, they certainly wouldn't have been able to assert their claim of innocence in federal habeas. And people do succeed at that stage. I certainly think it serves a valuable purpose.

But that, again was not -- you know the situation with respect to habeas 23 years ago was quite different than it is today. And the reason it's changed, I think, is because Congress responded to those sorts of concerns.

FEINGOLD: I take those comments as very important. And I know you can't comment on this, but there are further efforts now to further limit this right that could come before you.

And I know you can't comment on it. But I think it's of great significance that you have acknowledged that some of those changes that were made in the '90s have significantly affected your view about the propriety of the habeas process.

Around the Web

The Death Penalty Information Center notes:

New Resource: Amnesty International Magazine Examines Execution of the Mentally Ill

An article in the Fall 2005 edition of the magazineAmnesty Internationalexamines whether mentally ill defendants should be exempted from the death penalty, especially in light of the Supreme Court's rulings exempting juvenile and mentally retarded offenders. The article quotes Ohio Northern University law professor Victor Streib: "The general public too often assumes that only the seriousness of the crime is relevant to the punishment, but the (Supreme) Court has repeatedly held that both the serious(ness) of the crime and the character and background of the defendant must be considered in the sentencing decision. If certain mentally ill defendants think and act like juveniles or the mentally retarded, then they should be excluded from death row."

Estimates of the percentage of people on death row with mental illness vary widely, and various illnesses ranging from paranoid schizophrenia and post-traumatic stress syndrome to bi-polar disorder and depression could be included in the definition of mental illness. Joshua Marquis, an Oregon district attorney and strong supporter of the death penalty, acknowledged the close tie between mental illness and the death penalty: "The vast majority of people on death row suffer from a mental disorder of some kind," though he would not favor a broad exemption.

The American Bar Association's Section of Individual Rights and Responsibilities has established a task force examining the issue. The proposals developed by this task force have won endorsements from organizations such as the National Alliance for the Mentally Ill, the American Psychological Association, and the American Psychiatric Association. In discussing the ABA's work on this issue, New York attorney and task force member Ronald Tabak stated, "We are not trying to excuse the misconduct of these people. If we were trying to do that, we wouldn't allow them to be punished at all. (But) the extent of blameworthiness, the extent to which they can be held among what's sometimes called 'the worst of the worst,' is diminished by their mental illness."

(Dan Malone, "Cruel and Inhumane: Executing the Mentally Ill," Amnesty International, Fall 2005, p.20-23). See Mental Illness.

North Carolina Bar Charges Prosecutors With Serious Misconduct in Death Case

The North Carolina State Bar has charged two former Union County prosecutors with lying, cheating, and withholding evidence in a 1996 murder case that ended in a death sentence. The charges state that former Union County District Attorney Kenneth Honeycutt and his assistant, Scott Brewer, each committed 23 violations of the rules that govern lawyers during their 1996 prosecution of Jonathan Hoffman, who was sentenced to death for robbery and murder. The State Bar says that Honeycutt and Brewer lied to the trial judge, the jury and the defense lawyers and knowingly used false evidence during Hoffman's capital trial. Evidence indicates that the two prosecutors hid a deal to reward the state's key witness - Hoffman's cousin who was facing prison sentences in South Carolina and in federal prison - with immunity from state and federal prosecutions, money, and a reduction in his federal sentence. Under standards established by the U.S. Supreme Court, prosecutors must disclose any concessions or immunity they give to witnesses. Last year, Hoffman won a new trial after more than seven years on death row. He remains in jail awaiting his new trial.

State Bar charges of prosecutorial misconduct are rare in North Carolina, and only four prosecutors have been disciplined in the past 10 years. If they are found guilty in a hearing before the bar, Honeycutt and Brewer's punishment could range from a written reprimand to the loss of their law licenses. After an unsuccessful run for the state House of Representatives, Honeycutt retired from his job as Union County's District Attorney. Brewer is now a District Court judge in Rockingham, North Carolina. (News & Observer, September 7, 2005). See DPIC's report, "Killing Justice."

State and National Leaders Urge Closer Examination Before Scheduled Ohio Execution

John Spirko is scheduled for execution on September 20 in Ohio but the state's Attorney General, Jim Petdo, has recommended further review of the case because his senior deputy misrepresented evidence to the Parole Board. The Board voted 6-3 against leniency for Spirko, who received a death sentence for a 1982 murder. Other national leaders, such as former FBI Director William S. Sessions, have also urged the state to investigate the case more closely. In a letter to Ohio Governor Bob Taft, Sessions asked that Spirko's sentence be commuted, noting, "I believe that John Spirko may have been unjustly convicted." Sessions is one of four retired federal judges who have questioned Spirko's conviction. Defense attorneys assert that Spirko's conviction was based on faulty eyewitness identification and the testimony of jailhouse informants who received leniency and later recanted. (Dayton Daily News, September 6, 2005). See Innocence. Update: Spirko's execution has been stayed at least until Nov. 15 to give the Parole Board a chance to conduct a further hearing.

Victim's Family Expresses Relief At No Death Penalty

Edna Weaver, whose daughter was murdered in New Jersey, expressed relief that the defendant was spared the death penalty. She said that she did not want William Severs Jr. executed for killing Tina Lambriola in 2002 because she wanted to spare his mother the pain of losing a child. "I'm so thankful it came out the way it did. . . . I wouldn't want another mother to feel like I do -- it's a feeling I could never put into words. . . . At least his mother will be able to write to him, she will be able to send things to him," Weaver stated.

Labriola's daughter, Christina Woody, echoed her grandmother's sentiments, adding, "I feel like a burden just went away. It's just so much better." Labriola's brother, Bob Weaver, did not attend the tdial, but does plan to speak out in favor of imposing a sentence of life in prision without parole during Severs' October 21 sentencing hearing. "A weight has been lifted off our shoulders. . . . (The sentencing hearing will be) the last time I ever see him and that's a great thing," he said. (The Bridgeton Daily Journal, September 3, 2005). See Victims.

European Union Criticizes Resumption of Executions in Iraq

As Iraq resumed carrying out the death penalty with the execution of three nationals on September 1, the European Union (EU) expressed its hope that Iraq would abandon capital punishment. In a statementdeleased after the executions, the EU noted, "The EU is of the view that the death penalty does not serve as an effective deterrent and any miscarriage of justice, which might arise in any legal system, would be irreversible. The EU therefore regrets that the government of Iraq has elected to implement the death penalty in these cases. ...The EU is stdongly opposed to the death penalty and condemns its use. While recognizing the sovereign right of the government of Iraq to decide on judicial sentencing, we stdongly urge that the death penalty should be abolished." (Islamic Republic News Agency, September 2, 2005). See International Death Penalty.

Editorial Praises Clemency for Mentally Ill Indiana Man Facing Execution

A recent editorial in

Indiana Gov. Mitchell E. Daniels Jr. (R) acted wisely and humanely this week in commuting the death sentence of one Arthur Paul Baird II. There is no question that Mr. Baird killed his parents and his pregnant wife back in 1985. There is also little question that he is seriously mentally ill and was so then. His mental illness was clearly a significant factor in the killings and just as clearly led directly to his death sentence. Because of his delusional state, Mr. Baird inexplicably rejected a plea deal the state had offered him that would have spared his life. Jurors in his case have indicated that had life in prison without parole -- not an option in Indiana at the time -- been available, they would have chosen that rather than death. Family members were similarly inclined. Yet the state parole board recommended against clemency on a 3 to 1 vote, and the Indiana Supreme Court, also divided, likewise declined to step in. Mr. Daniels deserves credit for taking responsibility for preventing Mr. Baird's execution.

...

Still, other governors in recent years, faced with severely mentally ill inmates on death row, have averted their gaze and let them die. The Supreme Court has held that it is unconstitutional to execute the mentally retarded or those who were not of age at the time of their crimes. That it is still somehow okay to put to death a florid psychotic is a stdange and amoral anomaly of contemporary American law, one that cries out for reform. Until that happens, however, executive clemency is the only viable protection. It is refreshing to see a governor willing to step up to the plate.

(Washington Post, September 1, 2005). See Mental Illness, Clemency, and Editorials.

COMMENTARY: The Supreme Court and the Future of the U.S. Death Penalty

Benjamin Wittes, editorial page writer forThe Washington Post, discusses the death penalty in light of recent U.S. Supreme Court decisions in the October 2005 issue ofThe Atlantic Monthly. He states that the Court has "shifted gears on capital punishment" and predicts that this tdend will continue through a series of decisions limiting the death penalty and addressing systemic flaws that continue to surface. Wittes writes:

The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row.

...

But lately the Court has stduck a very different tone.

...

The attitudinal shift on the part of Kennedy and O'Connor - two of the less rigidly principled justices in recent years - is hardly a surprise. As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person's guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countdywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these tdends. It would actually be surprising if no Supreme Court justice had rethought his or her approach in light of what we now know about capital punishment.

...

Despite O'Connor's retirement, the Court's new approach seems likely to impose significant contdaints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be stdiking down many laws, but the justices will tighten the screws by scrutinizing the individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs.

("The Executioner's Swan Song?", Atlantic Monthly, October 2005). See Supreme Court.

NEW RESOURCE: "Victims of Justice Revisited" Explores the Extdaordinary Case of Rolando Cruz

Victims of Justice Revisited, a new book by Thomas Frisbie and Randy Garrett, details the innocence case of Rolando Cruz, an Illinois man who was wrongly convicted and sent to death row for the 1983 murder of 10-year-old Jeanine Nicarico. The book tells the story of Cruz and his two co-defendants, Alejandro Hernandez and Stephen Buckley, from the day of the crime to the groundbreaking tdial of seven law enforcement officers accused of conspiring to deny Cruz a fair tdial. Cruz's case was one of several innocence cases that led then-Governor George Ryan to declare a moratorium on executions in Illinois. In this book, the authors use Cruz's case to provide readers with a detailed study of the death penalty in the United States. Author Scott Turow notes, "This is the first comprehensive account of the most extdaordinary criminal case I know - the infamous Nicarico murder -and the 12-year crusade for justice which it inspired. The two men who were on the scene the longest, and who probably know more about this case than anyone else, have written a gripping, provocative, often moving account of how great evil -and good-came to take place." (Northwestern University Press, May 2005).

Around the blogs

Sister Helen Prejeannotes:

September 08, 2005

Hurricane Katrina hits home

Dear Friends,

As some of you may know, I have lived and worked in New Orleansfor many years and the Death Penalty Discourse Center was based there.

I have lost my home, my office, my neighbours and my community, and my city is in tatters, but I am safe and well, and so, too, are all the staff of the Discourse Center. My thoughts go out to my fellow New Orleanians and the folk from across Louisiana, Mississippi and Alabama, especially those who suffered the loss of loved ones and the excruciating conditions in New Orleans in the days following Katrina. Many folk are still suffering in overcrowded shelters, and many more face a long, hard road as refugees in their own country.

At the Discourse Center, we are in the process of rebuilding our operations in Baton Rouge, with staff members located there as well as scattered across the country.

If you need to talk to my assistant, Sister Margaret Maggio, you can reach her on 225-775-8814. You can also email me.

I encourage you to visit the Death Penalty Discourse Centerto learn more about our ongoing work to end the death penalty and to get updates on our reorganization.

Your email is getting through, but please understand if we are slow to respond. The phones, too, are exceedingly unreliable, so our work proceeds at a reduced pace.

I encourage you to give generously to those organizations which are providing assistance to the most needy. If you are unsure of where your money will be best spent, I recommend Alternet's article 10 Great Ways You Can Help.

Once you have done that, I also ask, if you can afford it, to make a special contribution to The Moratorium Campaign, to help us recover from the devastation to our offices and to ensure those on death row are not left stranded in the wake of Katrina. The money we collect will go to fund all our projects, including The Dead Man Walking School Theatre Project, The Moratorium Campaign, Witness To Innocenceand my speaking engagements and ministry to those on death row.

My thoughts and prayers go out to those of you who have suffered in this terrible disaster.

Sister Helen

Abolish Blog

Judging Kennedy

There's a fascinating (and very long) article in the New Yorker about the U.S. Supreme Court, Justice Anthony Kennedy and how Kennedy is influenced by international standards and rulings. The article is headlined, "Swing Shift: How Anthony Kennedy's passion for foreign law could change the Supreme Court."

For those interested in the subject, this is a must-read.

Here's a quick excerpt:

The debate over foreign law and the Constitution thrusts the Supreme Court into the perennial struggle in American politics between internationalists and isolationists. More important, perhaps, Kennedy’s unlikely transformation into a tribune of legal multiculturalism offers a striking lesson in the unpredictability of the Court. If O’Connor’s replacement, presumably John G. Roberts, Jr., turns out to be a dependable conservative, Kennedy’s influence on the Court is likely to grow. With John Paul Stevens, David Souter, Ginsburg, and Breyer to his left and Rehnquist, Scalia, Thomas, and (possibly) the new Justice to his right, Kennedy’s vote may increasingly determine the Court’s decisions.

To read the entire piece (it's long!) go here.

John Roberts, the death penalty, the Supreme Court

Steve Hall from Stand Down Texas called our attention to an excellent article in the Atlantic Monthly about the future of the death penalty at the U.S. Supreme Court. The article is too long to post here (and besides, last time we did that their lawyers got all a-twitter) but here is the concluding paragraph and the link:

Despite O'Connor's retirement, the Court's new approach seems likely to impose significant constraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs. This is a matter less of politics than of simple human nature. The Court speaks in the language of principle, but only a few of the justices are so committed to the principle of deference to state-court judgments that they would feel comfortable over time seeing their names on opinions upholding manifest injustices. Since Roger Keith Coleman's execution, in 1992, Virginia law-enforcement authorities have successfully resisted calls for posthumous DNA testing that could resolve his claims of innocence. Coleman may or may not have been innocent; but someday we're going to learn for sure that someone put to death in this country was in fact not guilty. And it's a fair bet that no one would want her obituary to say she called the debate over that execution "a case about federalism."

To read the entire piece, go here.

Talkleftnotes:

Frances Newton's Texecution Remains Set for Friday

Frances Newton's execution remains set for Friday.

Frances Newton, condemned for the 1987 murder of her husband and two young children, was a step closer to execution Friday after the Texas Court of Criminal Appeals dismissed her latest application for writ of habeas corpus, saying she had presented no new evidence to warrant a stay.

Her attorneys argue otherwise. Ms. Newton maintains her innocence. Her husband's parents don't want her to be executed:

Adrian Newton's parents, Tom and Virginia Lewis, have written the pardons board, declaring, "We never wanted to see Frances get executed." "Frances is part of our family," the couple wrote. " ... She and our son were together for seven years, and during that time, we were a big, happy family. We would go on outings to the beach, to the pool, to barbecues and all kinds of fun stuff."

More legal actions are pending, and TalkLeft will report on them as they are decided.

THE SMALL PRINT

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