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Clarence Thomas' America

The American Constitution Society's Blog is serializing what will likely be a very interesting feature. Entitled Clarence Thomas' America, it will focus on Justice Thomas' views on stare decisis:

These next two weeks, ACSBlog will explore several of these cases, explaining the history behind Thomas' disfavored doctrines, and suggesting how America would be different should Thomas' vision ever become law. We hope these pieces will be helpful in understanding the man President Bush calls a "model" Supreme Court Justice.

A conspiracy of one

Orin Kerr is fast becoming one of my favorite bloggers. When he first re-joined the Volokh Conspiracy, I pre-judged him as an Ashcroft-apologist. Well, I was very wrong. He is probably one of the most sensible voices on the web. I would say that he is more temperate than I am, but that's not much of a compliment. Anyhow, I do have a point.

If you want to read only Orin Kerr at the VC, you can do so by following this link.

If you want to exclude a blogger, use this URL:[the person you want to exclude, space bar, ?]. Thus, if you did not like Prof. Kerr, you could use this URL: ? (link).

If you want to read only your favorite VC bloggers, use this URL:[first name of people to read]. Thus, if your favorite VC bloggers are Orin Kerr, Randy Barnett, and Eugene Volokh, you will find this URL helpful:,randy,eugene (link).

Many thanks to the Class Maledictorian, whose post here gave me the Google terms I needed to figure this out.

The Winning Brief

At issue in Roper v. Simmons is whether the Eighth Amendment prevents the government from executing people for crimes they committed while 16 or 17 years old.  Thus, the Court must determine whether executing people for crimes they committed while they are young violate "evolving standards of decency."  Some argue that a 16 or 17 year old does not fully appreciate his acts, and as such, should not be subject to the ultimate punishment.  Orin Kerr writes: "One of the interesting questions potentially implicated by the case is whether people who are 16 and 17 tend to make less mature judgments than adults."

My first, emotional response was, "Of course it's wrong to execute people for crimes they committed at such a young age.  Kids are different."  But my emotions are not relevant.  My feelings about the death penalty in general are not relevant.  Like it or not, the Eighth Amendment does not prohibit the death penalty.

The only relevant issue is whether, as a legal matter, the Eighth Amendment prohibits the executions of men and women who killed while young.  Applying the legal standard of "decency" (yes, folks, that is what constitutes a legal standard before the Supreme Court) is trickier, but I still concluded such executions were wrong.  Until I read this brief.

Alabama's Solictor General (and friend of Feddie) puts forth the most compelling argument for giving juries the ability to sentence young people to death that I have ever seen.  Rather than telling me that the Constitution allows a jury to sentence someone to death for acts committed while young, he shows me that these "children" knew quite well what they were doing.

General Newsom tells the story of six murders.  These murders were committed by 16 and 17 year old men.  These murders show that although youngsters may not - as a class - appreciate their acts; evil is often blooms fully in young people.  The story of Timothy Davis is particularly illustrative:

Timothy Davis -- Age 17. Sixty-eight year old Avis Alford was working alone in her grocery store in Coosa County, Alabama, when Timothy Davis (17) entered. Davis proceeded to rob, sodomize, and brutally murder Mrs. Alford -- stabbing her 17 times in the back with a common steak knife.

Shortly after police discovered Alford's nude body, Davis, along with his wife and mother, came to the scene and told police that he had earlier found Mrs. Alford's body and that he had panicked and fled. He further said that he had gotten blood on his clothing from lifting her body and had returned home to change before making a report of the murder. Finally, Davis stated that he had seen two black men leaving the area after he discovered the body; when pressed, Davis could not give a description of either one.

Human sperm was recovered from Mrs. Alford's rectum. A stain composed of the combination of human sperm, fecal matter, and tissue from the inside of the rectum, was recovered from the crotch area of the underwear Davis had been wearing.  Blood stains matching Mrs. Alford's blood type were also found on the inside of Davis's jeans and splattered across his motorcycle helmet. Davis later admitted the crime to a fellow inmate while awaiting trial.

General Newsom's brief is so brilliant because it is so trusting.  He trusts me to realize for myself why Davis is evil.  Not only did Davis rape and kill someone, but he appealed to prejudice by blaming two black men.  Instead of telling me that "Davis is a bad man," he shows me.  He lets the fact speak for themselves.

Newsom's brief might also persuade one of the swing votes, Justice Kennedy.  Lyle Dennison reported:

A spare, 14-page legal brief took on more importance Wednesday as the Supreme Court spent an hour exploring the constitutionality of executing juvenile murderers. The brief, submitted on behalf of six states, appeared to have a significant influence on Justice Anthony Kennedy, whose vote could turn out to be crucial when the Court decides the issue. The document seeks to make a single point: 16 or 17 year olds are fully capable of committing heinous murders, and doing so with full awareness of the moral choice they made.

If Justice Kennedy (or Justice O'Connor) finds that the Eighth Amendment does not prohibit executing people for crimes committed while young, I would not only understand him, but I would agree.  I changed my mind.  And I did so because of one man's writing.

UPDATE:  Douglas Berman at Sentencing Law & Policy dicusses the brief's effectiveness:

Though the facts of the murder cases in the Alabama brief are compelling, what really makes the brief effective is its framing of the issue before the Supreme Court in terms of individual cases. Such a framing is not inappropriate, since the Supreme Court is being asked to preclude the application of the death penalty in any individual case involving a juvenile offender. But, of course, the issue before the Court in Roper could be (and perhaps should be) framed in more systemic terms.

Please read Prof. Berman's full post here for more details.

How'd ya like to have this peer on your jury?

Jose Mose Caudillo was on trial for a gang-related shooting.  His lawyer had just used his last peremptory challenge when in walked Prospective Juror No. 13.

No. 13 was an attorney with City Attorney’s Office.  (In California, the City Attorney's Office prosecutes crimes and defends the city against lawsuits.)  His area of expertise?  Gang-related activity.  Indeed, he wrote the brief in the definitive anti-gang case in California (People ex rel. Gallo v. Acuna).  He and other people in her office regularly litgated against Caudill’s lawyer.

During jury selection, Caudillo's lawyer and the trial court had the following colloqy with No. 13:

Judge: Is there anything about that acquaintanceship that would prevent you from being fair and impartial in this case?

No. 13: Well, I mean, it's been uncomfortable.

Judge: Please answer the question.

No. 13: I don’t know.  I would try not to have it affect my decision-making process, but I can't tell you 100 percent that it wouldn't.

Judge: Trial counsel is not on trial, and you’ll have to set aside any antipathy.  Can you do that?

No. 13: I’ll try.

Judge: You'll be taking an oath to judge the case on the evidence and the instructions on the law. Will you abide by that oath?

No. 13: I will do my best to abide by the oath, yes.

Would you want that juror judging you?  Would a prosecutor want a criminal defense lawyer on his jury?

Then Caudillo's lawyer asked No. 13 some questions.

Lawyer: If you had a brother who was on trial today and there was another attorney sitting in your position with like understandings and bias between the two of us, would you want to have your brother have that attorney sit on this jury?

No. 13: No. I'd rather have somebody who's removed and unfamiliar with any of the attorneys or parties sitting on the case, most definitely. I would prefer to have somebody sitting on a jury who didn't know any of the attorneys, who didn't have any contact with the police department, who was doing it, and probably had less knowledge about gang activity and the San Jose Police Department's involvement in the gang activity than I have.  No one wants to sit here and say they're not going to be unfair or impartial. I would certainly try, but I can't say beyond any doubt that none of my--that none of my background would influence how I would view the case and the evidence.

Caudillo's lawyer brought a challenge for cause: The judge denied it.  Prospective Juror No. 13 became Juror No. 8.  Caudillo was convicted, and appealed, asking the appellate court to order him re-tried with an unbiased jury.  His request was denied, in a decision so tortured only someone with three years of law school could have written it.  People v. Caudillo.

Interlocutory criminal appeals

An appellate court does not have jurisdiction to hear a juvenile's challenging a violation of his rights under the Juvenile Delinquency Act’s speedy trial provision. United States v. Branden, No. 03-10646 (9th Cir., Oct. 13, 2004).

The Supreme Court has established a three-part test to determine whether an interlocutory appeal should be allowed. An order before final judgment may be appealed if: (1) it completely disposes of the issue in question; (2) it is totally unrelated to the merits of the case; and (3) the right asserted would be irreparably lost if the appeal were delayed until after final judgment.

In United States v. MacDonald, the Supreme Court decided that an order denying a motion to dismiss because of an alleged violation of the sixth amendment right to a speedy trial is not a proper subject of an interlocutory appeal [because] the right being asserted by the defendant would not be irreparably lost if review was not ermitted until a final judgment had been entered.

Big sentencing win for defendants

Applying de novo review (ala Feeney), the Ninth Circuit today affirmed a district court's departing downard based on the disparity between co-defendants' sentences. United States v. Tzoc-Sierra, No. 03-10490, at *14524 (9th Cir., Oct. 13, 2004) ("A downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances, so long as the codefendant used as a barometer for judging the disparity was convicted of the same offense as the defendant.")

Good news for civil rights plaintiffs has this story:

Amidst all the corporate tax benefits enacted by the Senate on Monday, one little-noticed provision may turn out to be a boon for civil rights plaintiffs, public interest groups, whistleblowers, and even trial lawyers.

The American Jobs Creation Act of 2004, which now heads to President George W. Bush for signature, contains a section ending the "double taxation" of lawyer contingent fees in several types of litigation. The Internal Revenue Service has favored double taxation for years, and its policy is the subject of two cases set for argument at the Supreme Court Nov. 1.

Until now, the IRS required a victorious civil rights or other plaintiff who won, for example, a damage award of $100,000 to pay taxes on the entire amount, even though a contingent fee of $30,000 went to the plaintiff's attorney, and even though the attorney would pay taxes on that $30,000. The government's theory was that the entire award went to the client and should be taxed to the client, no matter where a chunk of the award ended up.