Wednesday, July 13, 2011

A brief summer

TBA's day job occasionally comes close to resembling actual work, and the past couple of weeks have been one of those times: four appellate briefs due in the same 30-day window. Hence, light posting. Just didn't want y'all to think I didn't care any more. The good news is, I actually kinda expect to win all four of these appeals, in some sense or other of "winning."

... Work aside, this is some crazy stuff here (via):
Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence.

More than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas.
Once again, the sole reason for the existence of Alabama appears to be "making Mississippi look good."

This quote takes the cake:
“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”
Well, what an excellent argument for the abolition of the jury system altogether! Silly amateurs! Who let them into the courtroom?

Judge McRae, says the article, has ordered six defendants executed and the jury be damned, though he's never reversed a jury-imposed capital verdict. I wonder if he has stickers on his bench, like WW2 aces.


  1. Scary point you may have missed: In the 1980s, the Supreme Court held the phrase "heinous atrocious and cruel" as used in Oklahoma's scheme to be too vague-- it could cover any murder. So some definition was required to narrow jury discretion. In the mid-80s, the Fifth Circuit held that Mississippi's use of the same language was distinguishable; in 1991ish, the Supreme Court held that it wasn't distinguishable (and explicitly stated that a Fifth Circuit case that was followed closely by an execution, Edward Earl Johnson, was so wrong that reasonable jurists could not have held what the CA5 held-- in a Charles Clark opinion (surprise surprise).

    SO! I was immediately struck by the judge in Alabama saying the reason he had to do jury overrides was that jurors just didn't understand what H.A.C. meant. AAARGGGH!

  2. check this language out (recall that a "new rule" would not apply in federal habeas, and that's the question here). The "serious mistake" referred to here resulted in the unconstitutional executions of Leo Evans and Edward Earl Johnson. This Kennedy (interestingly, Souter dissented joined by Thomas and Scalia). It was 92, not 91ish. The case is Stringer v Black

    The State next argues that Clemons' application of Godfrey to Mississippi could not have been dictated by precedent, because, prior to Clemons, the Fifth Circuit concluded that Godfrey did not apply to Mississippi. See Evans v. Thigpen, [503 U.S. 222, 237] 809 F.2d 239, cert. denied, 483 U.S. 1033 (1987); Johnson v. Thigpen, 806 F.2d 1243 (1986), cert. denied, 480 U.S. 951 (1987). ...

    The Fifth Circuit's pre-Clemons views are relevant to our inquiry, see Butler, supra, at 415, but not dispositive. The purpose of the new rule doctrine is to validate reasonable interpretations of existing precedents. Reasonableness, in this as in many other contexts, is an objective standard, and the ultimate decision whether Clemons was dictated by precedent is based on an objective reading of the relevant cases. The short answer to the State's argument is that the Fifth Circuit made a serious mistake in Evans v. Thigpen and Johnson v. Thigpen. The Fifth Circuit ignored the Mississippi Supreme Court's own characterization of its law, and accorded no significance to the fact that, in Mississippi, aggravating factors are central in the weighing phase of a capital sentencing proceeding. As we have explained, when these facts are accorded their proper significance, the precedents, even before Maynard and Clemons, yield a well-settled principle: use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence, and at the very least requires constitutional harmless error analysis or reweighing in the state judicial system.

  3. oh, and i forget to add:


  4. See, I did notice that, and wondered how Alabama was getting away with HAC.

    I don't even understand how it's constitutional to make a jury verdict advisory in a capital case. I suppose that was okay in 1789.

    .. Where have YOU been with my free Scotch? Oh, wait, you're talking about the blog. Sorry.

  5. What % of those judges are white?

  6. That is a rhetorical question, surely? ;)

    This post doesn't address statewide #s of black judges, but suggests the picture is not good.