U.S. Supreme Court

BOOKS: Justice Breyer's Dissent in Glossip v. Gross, Edited and Contextualized

In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer's historic dissent in Glossip v. Gross, which questioned the continuing constitutionality of capital punishment in the United States, in a new format intended to make the opinion more accessible to a broad audience. "I tried to contextualize the opinion by doing a longer introduction which makes the opinion into a book and summarize what the other justices did in their opinions," Bessler told the National Law Journal. In his Glossip dissent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised—and set forth a potential blueprint for answering—a number of questions concerning the constitutionality of the death penalty. Breyer wrote: "Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." Bessler praised Breyer's efforts to make his dissent more widely available, saying, "One of the things Justice Breyer been really good at has been going out there with his books, trying to engage the public about the importance of the law and the Constitution. He wants to get his ideas out. ...I think this will be picked up and read by people and, hopefully, they will get a better understanding of the Eighth Amendment and the death penalty itself."

Former Judges, Criminal Defense Associations File Briefs Supporting Missouri Inmate Who Was Denied Funding for Counsel

A group of 16 former state and federal judges and three of the nation's preeminent criminal defense organizations have filed briefs in the U.S. Court of Appeals for the Eighth Circuit in support of Missouri death row inmate Mark Christeson's efforts to be afforded a meaningful opportunity to investigate and present his claims to the federal courts. Christeson was nearly executed in 2014 without ever having any federal court hear his case, after the lawyers appointed to represent him in his federal proceedings failed to meet with him until six weeks after his filing deadline had passed. After the U.S. Supreme Court ordered the district court to appoint new lawyers, a Kansas City-based court directed them to submit a proposed budget for the case. Then, without explanation, it refused to fund 94% of their requested budget, limiting the defense to $10,000 for the entire capital case. The amicus briefs urge the Eighth Circuit to overturn the funding decision, arguing that it effectively deprives Christeson of his right to counsel. The former judges brief, organized by Constitution Project, calls the district court’s ruling “nakedly partisan,” reading “less like a judicial opinion and more like a prosecutor’s brief.” They say "“When attorneys lack adequate funds to investigate and prepare submissions in a capital habeas case, the adversarial process cannot perform its essential function of revealing the truth.” In particular, they say the funding ruling prevented counsel from developing and presenting mental health evidence that Christeson's severe cognitive impairment left him unable to assert his own rights after his previous counsel had abandoned him. The second brief, filed by the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender Association, joined by the MacArthur Justice Center at St. Louis, argued that, "It is not possible to maintain the integrity and fairness of capital punishment, and habeas proceedings generally, if district court judges continue to interfere with representation in this manner with no check on their abuse of discretion." Mae Quinn, the Director of the MacArthur center, said the denial of resources "is sadly consistent with the culture and ongoing challenges faced by the Missouri criminal and juvenile defense bar." Missouri ranks 49th in the nation in funding indigent defense.

Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 

U.S. Supreme Court Orders Reconsideration of Three Cases in Light of Jury Selection Decision

The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”

U.S. Supreme Court Overturns Pennsylvania Death Penalty Ruling Infected by Judicial Bias

On June 9, the U.S. Supreme Court held in Williams v. Pennsylvania that Terry Williams' (pictured) due process rights were violated when Pennsylvania's Chief Justice refused to recuse himself from the case. Ronald Castille served as Philadelphia District Attorney before being elected to the Pennsylvania Supreme Court. As District Attorney, he personally approved the decision to pursue the death penalty against the 18-year-old Williams, and then, while running for state Supreme Court, touted his record of having "sent 45 people," including Williams, to death row. Nearly 30 years after Williams was sentenced to death, and within a week of his scheduled execution, the Philadelphia Court of Common Pleas heard evidence that prosecutors had presented false testimony from a witness and withheld evidence that it had given favorable treatment to that witness; suppressed evidence that the victim had sexually abused Williams and other boys; and misrepresented to the jury that the victim had been simply a "kind man" who had offered Williams a ride home. After the court overturned Williams' death sentence, Philadelphia prosecutors appealed to the Pennsylvania Supreme Court, where Castille was serving as Chief Justice. Williams' attorneys filed a motion seeking Castille's recusal, but he denied the motion, refused to refer the question to the full court, and voted with the majority of the court to reverse the lower court ruling and reinstate Williams' death sentence. Castille also authored a concurring opinion saying the lower court had stayed Williams' death sentence "for no valid reason," attacking the judge for having “lost sight of [her] role as a neutral judicial officer,” and denouncing Williams' counsel for having an “obstructionist anti-death penalty agenda” and turning postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” The U.S. Supreme Court, in an opinion by Justice Anthony Kennedy, reversed, saying "[a] constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case." Here, the Court ruled, "Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias." It further determined that Castille's participation in the case "affected the ... whole adjudicatory framework" of the appeal, and ordered the Pennsylvania Supreme Court to reconsider the appeal. “Today, Terry Williams comes one step closer to the new, fair sentencing hearing he deserves,” said Shawn Nolan, an attorney for Williams, “We’re optimistic that the Pennsylvania Supreme Court will give this case careful consideration and recognize the injustice of Terry’s death sentence.”

Former Louisiana Chief Justice Asks Supreme Court to Review Case Presenting "Endemic" Prosecutorial Misconduct

Pascal Calogero (pictured), former associate and chief justice of the Louisiana Supreme Court, has called upon the U.S. Supreme Court to review the case of David Brown, a Louisiana death row prisoner who is challenging his sentence on the grounds that prosecutors withheld exculpatory evidence. Brown says prosecutors violated the Supreme Court's ruling in Brady v. Maryland, which requires disclosure of evidence that would be favorable to a defendant, whether relating to his guilt or in reaching a sentencing decision. In Brown's case, prosecutors had known for months that one of his co-defendants had confessed to having committed the killing with the help of a third co-defendant. They nonetheless withheld the confession from the defense, undermining Brown's claim that he was not the killer and that the victim was still alive the last time Brown had seen him. The evidence withheld in Brown's case is strikingly similar to the evidence presented to the Supreme Court in Brady itself—a co-defendant's admission that he, and not the defendant, was the actual killer. Nevertheless, the Louisiana Supreme Court said the withheld evidence would not have been favorable to Brown and ruled that no constitutional violation had occurred. "Brady issues are and have been, for decades, an endemic and persistent problem in Louisiana courts in both capital and noncapital cases," Calogero wrote in an op-ed in The National Law Journal. "The Louisiana Supreme Court had a chance to address this in Brown, but instead, once again, neglected to do so." The Open File, a website devoted to prosecutorial accountability, said that "Louisiana has a uniquely sordid history when it comes to prosecutorial misconduct." The Supreme Court has overturned three Louisiana death penalty cases for withholding exculpatory evidence, including the case of Michael Wearry earlier this year, and police or prosecutorial misconduct has been a factor in all ten Louisiana death-row exonerations to date. In addition, The Open File reported that the state court's rejection of Brown's Brady claim has "perversely ... undercut" the state's process for attorney discipline. Although it is undisputed that the prosecutors knew about and withheld evidence of the co-defendant's confession, the Louisiana Office of Disciplinary Counsel was unable to disclipline the prosecutors involved because the state court had ruled that the confession was not "favorable" evidence and the so the failure to disclose it could not be considered a violation of state ethical rules. The Court is scheduled to conference on June 16 on whether to accept Brown's case for review.

Supreme Court To Hear Texas Death Penalty Cases Dealing with Racial Bias, Intellectual Disability

On June 6, the U.S. Supreme Court granted writs of certiorari in two Texas death penalty cases, and will review the constitutionality of those death sentences during its next term. The two cases are Buck v. Stephens, in which Duane Buck was sentenced to death after a psychologist testified at his penalty trial that the fact that Buck is African-American increases the likelihood that he presents a future danger to society; and Moore v. Texas, a challenge to Texas' unscientific test for determining whether a defendant is intellectually disabled and therefore exempt from execution. Texas, through its then-Attorney General John Cornyn, had conceded that seven death row prisoners, including Buck, had been unfairly sentenced to death after juries in their cases had been exposed to expert mental health testimony improperly linking race and future dangerousness. The other defendants whose trials were tainted by such testimony were granted new sentencing hearings, but Buck's case did not reach the courts until Cornyn had become a U.S. Senator, and the new Attorney General (now Governor), Greg Abbott, opposed granting Buck a new sentencing hearing. The Court granted review on one of two issues presented in Bobby James Moore's petition for certiorari, whether a state may reject current medical standards in determining intellectual disability. It initially appeared to have granted review of a second issue as well, whether Moore's "extraordinarily long" confinement on death row violates the Eighth Amendment ban on cruel and unusual punishment. However, in an updated order, the Court clarified that it was limiting its review to only the intellectual dsability question. Moore was sentenced to death more than 35 years ago, and has been diagnosed as intellectually disabled by medical professionals. The Texas Court of Criminal Appeals rejected his intellectual disability claim in 2015 because he failed to meet Texas' “Briseño factors,” a set of unscientific criteria based on the fictional character of Lennie Smalls from the novel "Of Mice and Men." 

Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process Unconstitutional

On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. FloridaThe state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that  Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.

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