Orin Kerr has this post discussing the case of Cory Maye, who was convicted of murder and sentenced to death for (likely) killing someone in self-defense. Read about it here.
UPDATE: CBS News Blog has a follow-up post here.
Daniel Givelber, director of Northeastern's Innocence Project, has written an article that is scholarship informed by experience. Report from the Certiorari Clinic: Impressions of Routine Capital Cases. Especially interesting is the second half of the article. In What the Clinic Cases Reveal: Capital Cases and Doubt, Prof. Givelber notes:
The quality of the evidence [in death penalty cases], as well as its character, is also striking. In a number of cases (a little more than 10% of the eighty-one examined) the evidence of guilt referenced on appeal is either less overwhelming than or, at most, the equivalent of that presented in cases in which death sentences were followed by DNA exonerations.... In two other cases the defendant was convicted based upon the testimony of a co-defendant against whom all charges were dropped.... Another death sentence resulted from a conviction based upon evidence that the defendant was one of two people who was with the victim on the night in question and that he (an African American) had previously abused three white women (the victim was white). A Pennsylvania defendant was convicted and sentenced to die after two hung verdicts based on the evidence of an eyewitness who testified he knew the defendant by his first name and another witness who said that he saw the defendant with a gun of the make used in the robbery (the gun was never recovered). A Mississippi jury convicted and sentenced a defendant to death on evidence that blood was found on the three-year-old victim, that he was the last person seen with the victim, and had a forty-minute window in which to commit the crime, and that the nineteen bite marks on the victim’s body matched dental impressions of the defendant.
PrawfsBlawg's Dan Markel explores the question in this interesting Slate piece. Here is a taste:
Two years ago, Hollywood released The Life of David Gale. Its fictional protagonist, Gale, played by Kevin Spacey, is a professor and anti-death-penalty activist in Austin, Texas, who—following a couple of bizarre events—soon finds himself mistakenly convicted of killing a fellow activist and on Texas' death row. Gale decides to reveal his innocence to a magazine journalist, but he does so only in the last three days preceding his scheduled execution. Gale realizes that the machinery of death will not halt until and unless an innocent person is executed. Seeing that his abolitionist cause will be better served by his execution than his exoneration, Gale decides to sacrifice himself upon this altar.
For a long time, death-penalty abolitionists have feared (and perhaps secretly hoped) that a real David Gale would report for duty. And as detailed in last week's Houston Chronicle, compelling evidence now shows that Texas executed an innocent man named Ruben Cantu 12 years ago.
You can read the full piece here.
Sean Sirrine provides an excellent summary of the Supreme Court's recent case applying Atkins v. Virginia.
During my first year of law school, I read all the post-Furman death penalty cases, and summarized them in a chart. I never got around to updating the chart, however, as it seemed like an overwhelming project. (Plus, the more I learned about death penalty jurisprudece, the less I realized I knew.) But I found the answer - a wiki. A wiki is a "collaborative website whose content can be edited by anyone who has access to it."
So here's how it works:
1. Check out the Death Penalty Wiki.
2. If you think it's a worthwhile project, e-mail me for a login.
3. Add and edit contributions to your heart's content.
There are only two "guidelines." First, the document name should be
the case style with cite to the U.S. Reports. Second, the beginning of
the entry should look like this:
Issue: [One sentence question presented.]
Answer: [Yes, or no.]
See the entry on Roper v. Simmons for an example.
Of course, the more context you can provide, the better. But if we do nothing other than provide a list of all the post-Furman cases, and state their holdings, we will be in great shape.
I hope to hear from some of you soon.
No, that's not a typo.
On the first day of the sentencing phase of his capital trial, a member of the jury that had convicted Carl L. Brooks was arrested for the misdemeanor offense of unlawfully carrying a weapon and faced prosecution by the district attorney’s office then prosecuting Brooks. A loaded pistol was found in his briefcase in the routine screening of a security checkpoint in the courthouse. Whether this jury misconduct tainted the jury’s sentencing decision of death is the only issue remaining in this case today. We are persuaded that while the conviction of capital murder must stand the sentence of death must be vacated.
Brooks v. Dretke, No. 04-70023 (5th Cir. July 20, 2005).
Yesterday the Eleventh Circuit Court of Appeals denied a prisoner's request for a stay of execution and petition to file a successive habeas petition. In re: Conklin, No. 05-13817 (11th Cir. July 12, 2005). Judge Barkett's dissent captures the court's error:
Conklin’s attorney was given only thirty-seven days to prepare an exceedingly complex capital case in which technical medical evidence and detailed expert testimony played a pivotal role. The trial court inexplicably denied repeated requests for more time to prepare for trial, denied Conklin the paltry sum of $500 with which to hire a medical expert, and refused to give Conklin’s attorney additional time to prepare for the sentencing hearing, which followed on the heels of his conviction. The amazing rush to trial and denial of money for a defense expert when the whole case turned on the state’s medical expert’s testimony cannot possibly be deemed fair process.
Conklin, who was 5'7" and 150 pounds, admitted he killed George Crooks, who was 6'2" and 200 pounds. Conklin’s sole defense was that he did not intend to kill Crooks and did so in a struggle to protect himself from being raped. After Conklin killed Crooks, he dismembered the body in an attempt to dispose of it. To prove that Conklin had the requisite intent to support a murder conviction, the state had to establish that some of the knife wounds on Crooks’ body had been inflicted before death. The only evidence against Crooks on this question was the testimony of Dr. Saleh Zaki, the state’s medical examiner. Although Dr. Zaki conceded on cross-examination that the wounds could have occurred after death, he had testified on direct examination that knife wounds to Crooks’ neck were inflicted “antemortem,” or before death. Having been denied the funds to hire a medical expert who would have testified affirmatively that the knife wounds occurred post-mortem rather than ante-mortem, thus countering Dr. Zaki’s direct testimony with that of another respected expert and amplifying the effect of his concession that the knife wounds could have been inflicted before death, Conklin could only argue Zaki’s ambiguity regarding this crucial issue.
Considering the unseemly haste to obtain a conviction in this case, it is not surprising that the state’s medical expert at trial, Dr. Zaki, has now come forward with an affidavit saying that in his opinion, “Mr. Conklin did not intentionally set out to kill Mr. Crooks . . . . I saw none of the evidence that I have seen in many other cases in which I testified to indicate that this killing involved planning, intent, torture, or depravity.” This testimony, in addition to the affidavit of the independent medical examiner appointed by federal district court, Dr. Werner Spitz, who opines that all of the knife wounds on the body occurred after death, consistent with Conklin’s trial testimony, should give any court pause.
***
Furthermore, Conklin was also denied a fair sentencing hearing. Although the majority suggests that Conklin’s attorney made a reasonable “tactical” decision not to present any mitigating evidence at the sentencing phase, and that any available testimony would not have been helpful, the trial court’s refusal to grant counsel time to prepare for sentencing and refusal to provide funding for a psychiatric expert left Conklin’s attorney no reasonable alternatives to choose from. This hardly constitutes strategy. I would grant the request for a stay of execution and habeas relief.
Jerry Conner was sentenced to death for rape and murder. An appellate court ordered that he be re-sentenced. "Helene Knight, a local newspaper reporter
who had extensively covered his first trial, was permitted to serve as
a juror in his second sentencing proceeding." Conner v. Polk, No. 04-23, slip op. at 3 (4th Cir. May 3, 2005). Worse, Ms. Knight lied was Clintonesque about her knowledge of the case.
[S]he responded negatively to the following question from the trial court during voir dire in the second sentencing proceeding: "And have you heard this case discussed by any person who indicated direct or firsthand knowledge of the facts about the case other than the witnesses that you heard?"
Id. at 11. Still, the panel allowed Conner's death sentence to stand.
Although a reasonable person could well view Knight’s presence on the jury at Conner’s second trial as troubling (given her extensive coverage and knowledge of the first trial), the underlying facts do not, standing alone, compel the conclusion that she was a biased juror.
Id. at 12. Huh? So a juror with extensive knowledge of a case who gave evasive answers to ensure her presence on a jury isn't biased? I realize that the AEDPA requires deference; but it does not require ignorance. This case reminds me of the saw that one should keep an open mind, but it shouldn't be kept so open that nothing stays in.
France and Great Britain adopted the theory of "mutual assured destruction" during the Cold War but nonetheless strictly oppose capital punishment. MAD, is pretty simple to explain -- If you nuke me, I will nuke you, even if the only possible outcome is that all of us die. Are these consistent positions? Professor Yin suggests they are not.
In Disposable Deontology: The Death Penalty and Nuclear Deterrnce, 51 Ala. L. Rev. 111 (Fall, 2003), the Professor asks us to imagine that Bin Laden is captured in France or Great Britain. Before the United States can extradicte him, we are told that we must promise not to execute him. This is not unlikely, since, according to Yin:
In the last four years, there have been at least nine high-profile death-eligible suspects, including four alleged Al Qaeda terrorists, whom the United States has sought to extradite; Europe or Canada has required the United States to waive the death penalty in each case.
However, the same European countries that so vehemently oppose capital punishment have adopted the MAD policy. Under MAD, if someone fires a nuclear weapon at Western countries with nuclear arms, they will unload on them.
Although Professor Yin addresses all of the arguments that these countries might proffer for the incongruity, his death blow is this: "[I]f the other side has launched enough nuclear weapons to annihilate a country, that country gains nothing from launching against only the remaining nuclear forces." In other words, if Great Britain is going to be blown into the ocean, it launches its own bombs - that will surely kill innocent civilians - only out of revenge. Thus:
It seems incongruous that a country possessing nuclear weapons--and threatening retaliation in response to a nuclear attack--would claim the higher moral ground with respect to executions, and, in fact, there are sound reasons to question that moral integrity[ ].
There is a lot more to the article, which unfortunately is not available online, even though I would really like to link to it. But the thesis is interesting. What do you think -- Is it inconsistent for a country that opposes the death penalty to also adopt a nuclear policy of mutually assured destruction?
Professor Orin Kerr has the latest death-penalty data here.