June 5 USA: The Next Big Thing in Law? The Harsh Jurisprudence of Justice Thomas In the last 100 Supreme Court arguments, Clarence Thomas has not uttered a word. Court watchers have suggested a variety of explanations. Among the least flattering: he is afraid that if he speaks he will reveal his ignorance about the case; he is so ideologically driven that he invariably comes with his mind made up; or he has contempt for the process. In their provocative new book, "Supreme Discomfort: The Divided Soul of Clarence Thomas", 2 Washington Post journalists, Kevin Merida and Michael Fletcher, ponder Justice Thomas's extraordinary silence, and many other puzzles. They offer a wealth of insight, but they have no answer to the central enigma he poses: why the justice who has faced the greatest hardships regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering. It is a particularly timely question. For 15 years, Justice Thomas was a marginal figure, rarely assigned to write major opinions because his views were so far right that he would have had trouble attracting 5 votes. But Justice Thomas is a lot less marginal with the recent changes in the court -- particularly the replacement of Sandra Day O'Connor, a moderate conservative, with Samuel Alito, a more extreme one. He appears poised in the next few weeks to achieve his longstanding goal: dismantling the integrationist vision of his predecessor Thurgood Marshall. Justice Thomas's early years were not as hardscrabble as his image-makers suggested during his confirmation; he left tiny Pin Point, Ga., young, and was raised in a middle-class home. But he grew up in the Jim Crow South, with an absent father and an often-absent mother. He spent much of his childhood, the authors say, being "angry and hurt." In college and law school, he identified strongly with his fellow blacks, and was liberal, even radical, on racial issues. But as he accepted jobs from Republicans eager to hire a conservative black lawyer, he shifted rightward. As chairman of the Equal Employment Opportunity Commission, his phlegmatic advocacy for victims of discrimination disappointed civil rights activists, while impressing conservatives looking for a replacement for Justice Marshall. His confirmation hearings, at which Anita Hill accused him of sexual harassment, put an even sharper edge on his ideology. He redirected his anger, much of which had been aimed at whites, at liberals and civil rights organizations. Justice Thomas is now beloved on the far right, with friends like Rush Limbaugh, whose wedding he performed. Justice Thomas wasted no time unveiling his harsh jurisprudence. In his first year on the court, he dissented from a decision holding that the ban on cruel and unusual punishment may have been violated when guards kicked a prisoner and punched him in the stomach, eye, and mouth. The prisoner had a split lip, bruises and loosened teeth, but Justice Thomas insisted that the Constitution did not prohibit such "insignificant harm." He dissented from a ruling in favor of a prisoner who was handcuffed to a hitching post in the hot sun for 7 hours while a guard taunted him about his thirst. Justice Thomas also dissented from rulings that the mentally retarded and juveniles could not be executed. He can be counted on to reflexively oppose discrimination claims of minorities and women, as he did last week, when he joined the majority in rejecting the claim of a woman who was underpaid for years because of her sex, on the dubious ground that she complained too late. Justice Thomas claims he is simply faithful to the "original intent" of the founders. But when the founders' intent is not involved - as in the pay discrimination case, which was based on a modern statute - he is just as quick to reach a harsh result. When Justice Thomas joined the court, he not only filled Justice Marshall's seat, he also labored in his shadow. As a lawyer in Brown v. Board of Education, Justice Marshall had persuaded the court to champion racial integration. When he arrived on the court in 1967, he pushed it in a humane direction not only on race, but also in areas like prisoners' and women's rights and fair elections. The court had largely stopped moving forward in these areas by the time Justice Thomas arrived but, mainly due to Justice O'Connor, it did not move backward that much, either. That appears likely to change. The court heard arguments this term challenging Louisville's and Seattle's voluntary efforts to integrate their schools. The court has long upheld voluntary attempts to bring students of different backgrounds together, including, just a few years ago, the University of Michigan's affirmative action program. But this time, it is expected to strike down Seattle's and Louisville's, which is likely to make public schools much more segregated. With its new members, the court is also likely to make prisons less civilized, and workplaces, elections and criminal trials less fair. When Justice Marshall retired, Justice O'Connor noted that he "imparted not only his legal acumen but also his life experiences" and made the court respond not only to his arguments but to "moral truth." America will be a much less just place if Justice Thomas's life experiences and moral truth start to shape the court's agenda -- and the nation's. (source: Editorial, Adam Cohen, New York Times, June 3) **************** Ruling benefits attorneys eyeing death penalty The Supreme Court on Monday strengthened the hand of prosecutors in death penalty cases by making it easier to remove potential jurors who express ambivalence about the death penalty or confusion about how it should be applied. The 5-4 decision instructed federal judges, in particular, to defer to the ruling of a state court trial judge who concludes that a potential juror should be disqualified as unable to give appropriate consideration to imposing the death penalty. "It is the trial court's ruling that counts," Justice Anthony M. Kennedy wrote for the majority. The decision overturned a ruling by a conservative icon among federal appellate judges, Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals. Kozinski's majority opinion last June granted a writ of habeas corpus and ordered a new sentencing hearing for the defendant, Cal C. Brown. Kozinski said the trial judge, in a Washington state court, had improperly granted the prosecutor's request to dismiss a juror who, while expressing some qualms about the death penalty, also said he would be willing to impose it in an "appropriate" case. Writing for the four dissenters on Monday, Justice John Paul Stevens said the majority had erased an important distinction the Supreme Court had long drawn between "mere opposition to the death penalty" and "an inability to perform the legally required duties of a juror." Stevens said the court's precedents made it clear that no matter what a juror's personal opinion about capital punishment, the juror should not be dismissed in the absence of evidence of unwillingness or inability to follow the law. The process of questioning potential jurors in a death penalty case, and weeding out those who hold such strong feelings for or against capital punishment that they would be unable to apply the law, is known as "death qualifying" a jury. It is an exacting process that in this case took 11 days, and it is governed by a series of Supreme Court decisions going back to 1968, before the modern era in capital punishment. The concern in those cases has been that if the prosecution had too free a hand in eliminating those with doubts about the death penalty, the jury would be stacked against the defendant. Kennedy's majority opinion acknowledged that history. "Capital defendants have the right to be sentenced by an impartial jury," he said, adding that "the state may not infringe this right" by eliminating "those whose scruples against the death penalty would not substantially impair the performance of their duties." The dispute on the court in this case, Uttecht v. Brown, No. 06-413, was therefore not over the basic principle but rather how to apply it, especially in the context of habeas corpus, in which Congress has already circumscribed the authority of federal judges to review state criminal convictions. Special deference is required in the death qualification context, Kennedy said, because the trial judge "is in a superior position to determine the demeanor and qualifications of a potential juror." (source: New York Times) *************************** Supreme Court, in 5-4 vote, restores death sentence in Washington murder case----In their 4th reversal this term of the 9th Circuit Court of Appeals, the justices support a trial judge's decision to exclude a juror who had qualms about the death penalty. Reversing the U.S. 9th Circuit Court of Appeals in another murder case, the Supreme Court on Monday restored a death sentence for a Washington state man who abducted, tortured and killed a young woman near Seattle. The murderer, Cal Brown, was captured in Palm Springs after he abducted another woman and slit her throat in an airport hotel. She was able to call the hotel desk when Brown left the room. Police arrested Brown in the hotel parking lot, and he confessed to both crimes. In 1993, he was convicted and sentenced to death by a Seattle jury. But the 9th Circuit overturned his death sentence last year on the grounds that the trial judge had wrongly excluded a juror who expressed qualms about capital punishment. By a 5-4 vote, the high court upheld the decision of the trial judge and said the 9th Circuit erred by intervening. "It is not for us to second guess the determination" of the trial judge over whether a potential juror is willing to follow the law, Justice Anthony M. Kennedy said. He said the prosecutor and the judge had ample reason for excusing the man, referred to as "Juror Z." When questioned, the juror had said the death penalty was appropriate only when the murderer might be released and would kill again. In Washington, as in California, that was not a possibility in such a case. An aggravated murder conviction would bring a sentence of either death or life in prison without a chance for parole. The prosecutor asked to have Juror Z excluded because his comments suggested he would reject the death penalty for Brown. The defense lawyer said: "We have no objection." That led to the reversal of Brown's death sentence more than 12 years later by the San Francisco-based appeals court. The 3-judge panel that reversed Brown's death sentence consisted of Judges Alex Kozinski of Pasadena, a conservative, and 2 liberals, Stephen Reinhardt of Los Angeles and Marsha S. Berzon of San Francisco. Kozinski said Juror Z had "outlined a balanced and thoughtful position" on the death penalty. "Most importantly, he promised he would 'follow the law' without reservation," he said. On Monday, the Supreme Court once again was sharply split along conservative-liberal lines. Justice John Paul Stevens delivered a strong dissent in the courtroom. By allowing prosecutors to exclude jurors who have qualms about capital punishment, the court will encourage the formation of juries that are "unfairly biased in favor of the death penalty," he said. Stevens said jurors who pledge to follow the law in death penalty cases should be seated, even if they express doubts about the use of this ultimate punishment. "Millions of Americans oppose the death penalty," and juries are supposed to represent a "cross section" of the community, he argued. Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined his dissent in the case of Uttecht vs. Brown. In his opinion reversing Kozinski and the 9th Circuit, Kennedy agreed capital defendants have "the right to be sentenced by an impartial jury." Such a jury can include those who have "scruples against the death penalty," he added, but they must be ready to follow the law. In this case, despite what Juror Z said, he was "substantially impaired" in doing just that, Kennedy said. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Kennedy. Monday's ruling was the fourth this term to overturn the 9th Circuit in a murder case. In November, the court restored a death sentence for a Central Valley man who robbed and fatally clubbed a young woman in 1982. The 9th Circuit had reversed his sentence on the grounds that jurors might not have weighed the defendant's religious conversion after his arrest. In December, the court restored a murder conviction for a man who shot and killed the fiance of his estranged wife in San Jose. The 9th Circuit had reversed the conviction because the victim's family had worn a small, button-size photo of him during the opening days of the trial. In May, the court restored the death penalty for a 2-time murderer in Arizona who told the sentencing judge he did not want mitigating evidence presented on his behalf. The 9th Circuit had reversed his death sentence because his lawyer failed to present evidence of his client's brain disorder. (source: Los Angeles Times) *********************** Look at both sides of death penalty I read with interest the letters from a group of local high school students expressing their opposition to the death penalty. I have to say it's heartening to see these bright young men and women taking an interest in politics and expressing their views so clearly. They wrote of a visit to an organization dedicated to abolishing the death penalty but made no mention at all of having attempted to gather any information concerning the opposing position. With this in mind it seems to me they've made the common mistake (not made just by teenagers) of exposing themselves to only one side of an issue and allowing themselves to be persuaded. Capital punishment is an important and contentious issue and as with any issue so controversial, I would advise them to be much more circumspect in their research. I hope these young people learn, and soon, that if they don't listen to the whole debate they don't really know the whole story and, by definition, cannot make an informed decision. In doing so, they rob themselves of the important opportunity of learning to make up their minds for themselves. Had they just typed in "pro death penalty" they'd have found volumes of pro death penalty arguments, including claimed statistics refuting those quoted in their 2nd letter. They should be warned that the more motivated proponents on either side of an issue will be prone to exaggeration and distortion of the facts. They should be wary of the environment of shrill rhetoric. They should aggressively question the claims made by both sides, study the issue in depth and decide for themselves and that way avoid joining the hordes of who blindly follow along. I'm confident their project advisor would concur with my meager observations. Jack King, Vallejo (source: Letter to the Editor, Vallejo Times-Herald) NEW JERSEY: Here's latest blow to death penalty in N.J. The New Jersey Supreme Court on Tuesday vacated the murder conviction and death sentence of Donald Loftin, finding that the trial judge should have removed a juror who appeared to be biased. The court found that juror predetermined that Loftin was guilty. Despite what the high court called "overwhelming evidence" that Loftin killed gas station worker Gary Marsh in 1992, he will get a new trial because the judge did not question other jurors to ensure that none had been tainted, the state's highest court ruled. The 6-1 ruling is the latest blow to the death penalty in New Jersey, where the Legislature is considering a bill that would abolish it. New Jersey reinstated the death penalty in 1982 but hasn't executed anyone since 1963. The Legislature imposed an execution moratorium in December 2005 when it formed a commission to study the death penalty. Lawyers for Loftin did not immediately return calls for comment. The Mercer County prosecutor's office, which handled the case, also did not immediately return a message for comment. Loftin, 41, is 1 of 9 inmates being held on death row at New Jersey State Prison. He was sentenced to death in 1994 of murdering Marsh, who was found with a single gunshot wound to the head at the Lawrenceville Exxon station where he worked alone on a midnight shift on May 5, 1992. On the Net: Court opinion: http://www.judiciary.state.nj.us/opinions/supreme/A-78-05.pdf (source: Associated Press) FLORIDA: DEATH PENALTY-US:----Crash Course for Florida's Executioners 2 newly-trained teams of executioners committed to the principle of "humane and dignified death" are ready to go into action as soon as Florida's new governor Charlie Crist starts signing death warrants for the state's 380 death row inmates -- but no one knows yet who will be the first to be executed after the lifting of a four-month moratorium. This was confirmed to IPS by Gretl Plessinger, a public relations officer at the Florida Department of Corrections. On May 9, Florida officially ended its moratorium on executions declared in mid-December. On the same day, Crist approved an array of proposals to improve the way the state carries out its executions by lethal injection. The moratorium was announced on Dec. 15, 2 days after a Florida executioner fumbled repeatedly as he tried to find the vein in the left arm of Angel Diaz, a convicted killer. The execution did eventually succeed, but took more than half an hour -- at least twice as long as usual. Anti-death penalty activists all over the world protested amid suggestions that Diaz might have been conscious during some of the time and experienced excruciating pain. This would have been a violation of the U.S. constitution which bars cruel punishment. The scale of the protest led outgoing governor John Ellis "Jeb" Bush, the man who had originally signed the Diaz death warrant, to declare a temporary moratorium on executions while a hastily-called 11-member commission investigated how to prevent a repetition. 9 other U.S. states also introduced moratoriums on their executions by lethal injection. Florida is the 1st of these to lift its moratorium. Each of Florida's two new execution teams consisted of 10 people, Plessinger told IPS. They had been trained in "numerous" places, including Terre Haute in Indiana. Terre Haute is a high-security prison in the geographical centre of the U.S. Its death chamber, the only federal one in the country, was reopened after the Supreme Court reversed in 1967 its decision against the death penalty. It was there that Oklahoma City bomber Timothy McVeigh was executed by lethal injection in June 2001. Governor Crist, widely-known for supporting capital punishment, has approved all the 37 recommendations proposed by the commission of investigation. The new rules require that a prison warden must be present to confirm that that a condemned inmate is unconscious before the death-producing drugs are injected, Plessinger said in a email response to questions submitted by IPS. This apparently addresses the concern that Diaz might have been aware that his executioner was struggling with his needles to complete the last part of his execution. More lighting had been installed in the death chamber, Plessinger said. She side-stepped the question of whether Florida would be now increasing the dosages of the drugs in its lethal injections. But she confirmed that there would be no change in the make-up of the chemicals in the three-part lethal injection. The commission had been specifically asked to investigate whether the drugs used in Florida's executions should be replaced with something else. "The department explored not only the drugs used in Florida, but other states and by the federal government," Plessinger said. "The drugs utilised by the Florida department of corrections are consistent with the drugs used in other jurisdictions." But Plessinger left open the possibility that changes in the prescription could be made later. "The department will continue to monitor developments in pharmacology," she said. The three drugs used in the U.S. lethal injections include sodium pentothal, a general anaesthetic to make the inmate unconscious, pancuronium bromide to induce paralysis, and a final injection of potassium chloride to stop the heart. Plessinger said she could not give the name of the next death row inmate to be executed. "The department of corrections does not determine who is executed. That decision is made by the governor's office," she said, adding: "At this time governor Crist has not signed any death warrants." But one death row inmate apparently threatened with imminent execution is Ian Deco Lightbourne. In an effort to head this off, his lawyers have asked the courts to order the four reporters who witnessed the Diaz execution to produce their notes. The move was aimed at supporting their case that execution by lethal injection was unconstitutional and Lightbourne should be removed from death row. The request for the notes has been rejected, IPS has learned. But Susan Bunch, a lawyer representing one of the journalists, told IPS in a telephone interview that she did not think this was the end of the battle for Lightbourne's lawyers. "I didn't get the impression they were going to give up on this," she said. Predictably, the adoption of the Florida commission report on lethal injections and the lifting of the moratorium on executions was criticised by U.S. death penalty abolition groups. "What they basically did was to take testimony, which was a step in the right direction," David Elliott, spokesman for the National Coalition to Abolish the Death Penalty, said. But he questioned how any study could be helpful when no state offered an example of good practice in the administration of lethal injections. He also questioned the thoroughness of the commission's work. Howard Simon, the executive director of the American Civil Liberties Union of Florida, said the lifting of the moratorium was "out of step with public opinion". The commission should have studied why Florida had "so many" botched executions, he said. It should have also looked at the alternatives to capital punishment. But the decision to lift the moratorium was welcomed by the Texas-based Justice for All, a pro-death penalty group with over 2,000 members in different states. Execution by lethal injection was the "most humane" means of execution, Diane Clements, its spokeswoman said. Besides the 37 U.S. states which rely mainly on lethal injections, China, Guatemala and Thailand also use this method of execution. (source: IPS) MISSOURI: Lethal injections upheld in Missouri----A panel of the 8th Circuit Court of Appeals finds 'no wanton infliction of cruel and unusual punishment,' clearing the way for executions to resume. In the first review by a federal appeals court of a full-scale challenge to a state's lethal-injection law, a court in St. Louis on Monday found Missouri's procedure constitutional, paving the way for the resumption of executions in the state. The ruling becomes the guiding legal principle within the U.S. 8th Circuit Court of Appeals, which includes 2 other states using lethal injection Arkansas and South Dakota. Although the decision has no binding effect in other federal circuits, the decision could be cited in litigation in other parts of the country, including California. In San Jose, U.S. District Judge Jeremy Fogel ruled in December that California's lethal-injection procedure, as administered, did not pass constitutional muster. The state revised its procedure, which Fogel is reviewing. The 3-0 ruling by the 8th Circuit reversed a decision last year by a federal judge in Kansas City who said the state's execution methods created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered." The 8th Circuit panel said it found "no wanton infliction of cruel and unusual punishment." "We find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an 8th Amendment violation," wrote Judge David R. Hansen. Hansen said each of those inmates died within 5 minutes. He did not provide other details about what happened during those executions. Missouri is fourth in the nation in executions. It has put 66 people to death since the Supreme Court let states bring back the death penalty in 1976. Missouri has 51 inmates on death row. It is among 11 states that have delayed executions because of legal challenges to lethal injection. Like three dozen other states, including California, Missouri uses a three-drug cocktail: sodium thiopental, a fast-acting barbiturate anesthetic; pancuronium bromide, which paralyzes the inmate; and potassium chloride, which causes cardiac arrest. The Missouri challenge was raised by Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl. The suit filed on his behalf asserted that the execution procedure masked rather than prevented pain. In June 2006, U.S. District Judge Fernando J. Gaitan Jr. ruled that Missouri's procedure violated the Constitution. He said he was particularly troubled that the doctor who mixed the state's execution drugs was dyslexic and had difficulty reading numbers. Missouri revised its execution protocol, but Gaitan rejected it again in July, saying it still subjected a condemned inmate to an unnecessary risk of excessive pain. He ordered the state to make 5 modifications to its procedures, including barring the use of the dyslexic doctor. The 8th Circuit panel said most of those changes were unnecessary. "The evidence reveals that the only inherent risk in Missouri's written procedure arises from the specific chemicals chosen by the state to carry out the sentence," wrote Hansen, joined by judges C. Arlen Beam and William J. Riley. Noting that lethal injection is commonly thought to be the most humane form of execution, Hansen said, "There is no dispute, however, that the third and last chemical will cause excruciating pain if the inmate is not adequately anesthetized and that use of the 2nd chemical in the sequence will simultaneously mask any visible sign of that pain." The judges ruled that "because of the pain that undoubtedly would be inflicted by the third chemical if administered without adequate anesthetization, it is imperative for the state to employ personnel who are properly trained to competently carry out each medical step of the procedure." They said that the protocol "adequately requires trained medical personnel to carry out these steps." There has been considerable debate in recent years over whether it is necessary for states to use a trained anesthesiologist to ensure that the execution is carried out lawfully. The 8th Circuit said no. "The protocol is designed to ensure a quick, indeed a painless, death, and thus there is no need for the continuing careful, watchful eye of an anesthesiologist or one trained in anesthesiology, whose responsibility in a hospital's surgery suite (as opposed to an execution chamber) is to ensure that the patient will wake up at the end of the procedure," Hansen wrote. "We know of no decision holding that the Constitution requires a physician to become the executioner." Missouri Atty. Gen. Jay Nixon praised the ruling, saying it "affirms our position that Missouri's method of execution is constitutional. This decision reopens the necessary legal avenue for the state of Missouri to move forward on this issue." Ginger Anders, one of Taylor's attorneys, said the defense would attempt to have the case reheard by a larger panel of 8th Circuit judges and, if necessary, seek review from the U.S. Supreme Court. The 8th Circuit panel "relied solely on the state's written execution protocol, ignoring the overwhelming evidence that time and again the state's actual performance of executions has deviated from its public representations about the procedures," Anders said. "The court's exclusive focus on the written protocol is particularly troubling because no written protocol can ensure that executions are performed humanely when the executioners are untrained or incompetent," Anders said. "And that is precisely the issue here the state has proven that it cannot be trusted to employ competent executioners." (source: Los Angeles Times) **************************** Blunt Statement on Missouri's Death Penalty Missouri Governor Matt Blunt today issued the following statement on the 8th U.S. Circuit Court of Appeals ruling that Missouri's death penalty may be enforced. "One of the most important jobs I have as governor is to help keep Missourians safe. Capital punishment is a vital deterrent to the most serious of crimes. I support Missouri's death penalty statutes and have worked to ensure our law is applied with justice and fairness. In the interest of protecting Missourians, I am pleased the court ruled in favor of the state's limited, reasonable and effectively enforced death penalty and I am directing the Department of Corrections to prepare execution procedures in compliance with the ruling." A ruling from the 8th U.S. Circuit Court of Appeals in Taylor v. Crawford deemed that Missouri's lethal injection procedure is not unconstitutionally cruel and unusual punishment. During Gov. Blunt's administration, the Department of Corrections has carried out 5 executions. (source: Missouri Governor) OKLAHOMA: Supreme Court rejects death row appeal in McIntosh County slaying The U.S. Supreme Court on Monday rejected the appeal of an Oklahoma death row inmate convicted of killing and mutilating a man in rural McIntosh County in 1999. Attorneys for convicted killer Patrick D. Murphy had argued he and his victim, George Jacobs, were members of the Creek Nation and that he should have been prosecuted in federal court since the crime took place on tribal land. An Oklahoma district court and the Oklahoma Court of Criminal Appeals both already had rejected the argument that because the Creek Nation owned mineral rights the land was tribal property. The U.S. Department of Justice had urged the Supreme Court to turn down the case, which justices did on Monday without comment. Murphy, 38, was convicted of killing Jacobs in 1999 on a rural McIntosh County road, where Jacob's body was discovered in a ditch. Jacobs, 49, the ex-husband of Murphys girlfriend, was beaten and slashed to death and had his genitals cut off during the attack. (source: Associated Press) ******************* Jury sentences man to death for 3rd time A convicted child killer is being sentenced to die for the third time. Richard Rojem junior has had 2 previous death sentences for the rape and murder of his 7-year-old former stepdaughter overturned. A Custer County jury yesterday voted to again sentence Rojem to death. He was convicted more than two decades ago of the 1984 rape and murder of Layla Dawn Cummings of Elk City. The girl's body was found in a dirt field near Burns Flat. (source: Associated Press)
[Deathpenalty] death penalty news----USA, N.J., FLA., MO., OKLA.
Rick Halperin Tue, 5 Jun 2007 13:49:19 -0500 (Central Daylight Time)
