Wednesday, March 19, 2008
Beyond the interesting fact that both the Chief Justice and Justice Alito were in the majority -- the latter authoring the opinion -- I think this case is very significant for a couple of reasons:
First, the case seems to shift the burden of an ambiguous record from the opponent of the strike to the proponent of the strike. That is, where the trial court does not specifically say why it is not convinced that the strike is motivated by discriminatory animus, it seems that the proponent of the strike must now prod the court to do so. If the trial court does not do so, the proponent bears the risk that a reviewing court will independently view the strike as discriminatory based on the cold record without giving any deference to the trial court's ability to judge the demeanor of the prospective juror. This seems to be a change in the law, or at least how I understood the law to be.
Second, in a critical passage, the decision all but invites litigants to now raise the "mixed-motives" issue:
In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, theburden shifts to the party defending the action to show that this factor was not determinative. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. And in light of the circumstances here . . . the record does not show that the prosecution would have pre-emptively challenged [the prospective juror] based on his nervousness alone.
The mixed-motives issue has heretofore been largely ignored. But see Russell D. Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 MD. L. REV. 279 (2007). I think this issue is going to be the next Batson battleground. This issue can arise in at least two ways. The more obvious way is the one represented by Snyder: the proponent of the strike offers one explanation that is found to be discriminatory and one or more that are found to be non-discriminatory. The second way is where the proponent of the strike is found to have engaged in prohibited discrimination with respect to one but not all struck jurors. Typically, the jurors who have been the victims of discriminatory animus will be seated on the jury, remedying the Batson violation. But this should also shift the burden of proof as to the other struck jurors -- the proponent of the strikes should have to explain why his or her discriminatory animus with respect to some jurors did not infect the decision to strike the other jurors. [Portions of this post were posted by me yesterday in a comment on the Volokh Conspiracy blog] [Mike Mannheimer]
From NPR.com: The Supreme Court overturns a murder conviction and death sentence for a black defendant in Louisiana who said his trial was tainted by racism. A seven-member majority of the justices said the prosecutor improperly kept blacks off the jury. Listen. . . [Mark Godsey]
Innocence Network Conference: The national Innocence Network Conference will take place this year at Santa Clara University, home base of the Northern California Innocence Project (NCIP). The three-day conference, which brings together hundreds of people who work against wrongful convictions, is planned for March 28-30.
Among those attending the event are attorneys, educators, civic and business leaders, and exonerated individuals who have been wrongfully convicted and imprisoned. John Van de Kamp, former state attorney general, will participate in the conference, along with speakers representing Innocence Projects from Hawaii, Wisconsin, Connecticut, Georgia, North Carolina, Virginia, Ohio, New York and New Orleans, including the co-founders of the first Innocence Project, professors Barry Scheck and Peter Neufeld of Cardozo School of Law.
Those assisting with the conference from SCU include law professors Gerald Uelman, who is director of the California Commission for the Fair Administration of Justice and Kathleen "Cookie" Ridolfi, director of the NCIP. The event is aimed at Network members but is open to anyone interested.
According to Ridolfi, "The Innocence Network Conference is a rich educational forum for policy and litigation issues concerning wrongful conviction. It allows those working within the Network to come together and share strategies to litigate innocence claims and to confer on and advance policy initiatives to address causes of and remedies for wrongful conviction."
Activities throughout the three-day event include meetings, panel discussions, special presentations and sessions designed specifically for exonerees. One objective of the conference, say organizers, is to provide an opportunity for exonerees to find social and emotional support from others who have suffered similar experiences. [Mark Godsey]
The Law Clinic at Indiana University School of Law-Indianapolis today (March 14, 2008) announced an upcoming post-conviction proceeding on behalf of a Lake County man asserting he was wrongfully convicted of rape in 1993. Law Clinic attorneys representing the man are seeking the public's help in exonerating their client.
A post-conviction case for Roosevelt Glenn will be tried March 17 and 18, 2008, in a hearing room for the Lake County Superior Court One, 2293 North Main Street, Crown Point, Ind. Glenn continues to maintain his innocence and asserts that newly discovered DNA evidence demonstrates he was wrongfully convicted.
Glenn was convicted of one of a series of vehicular "bumps" followed by assaults against woman driving alone at night. The incidents occurred in Lake County from 1989 to 1990. Most of the cases remain unsolved. CrimProf Fran Watson Hardy of the Law Clinic at IU School of Law-Indianapolis is asking anyone with any information regarding the "cold" cases to contact her at 317-274-1911.
"Since the very first tests in 1990, two DNA profiles from the persons responsible for these crimes have been identified," says Watson. "If we could obtain information to locate either of the two persons for whom DNA profiles exist, it would be relevant to Mr. Glenn's petition. We ask for the public's help."
Professor Watson and her students from the Law Clinic are preparing the case on behalf of Glenn. Scientific experts in microscopic hair analysis and DNA will testify to challenge the proof offered to convict Glenn. During the 1993 trial, a hair recovered from the victim's sweater was said to be from Glenn's head. Recent DNA testing has revealed that the hair does not match Glenn's. [Mark Godsey]
Tuesday, March 18, 2008
From NPR.com: Joseph Nacchio, the former CEO of Qwest Communications, had his conviction on insider trading overturned Monday. A federal appeals court ordered a new trial, saying the judge in the original trial improperly excluded a witness who would have testified on Naccio's behalf. Listen. . . [Mark Godsey]
From latimes.com: A panel of law enforcement experts convened by Los Angeles Police Chief William J. Bratton to examine the department's elite SWAT unit concluded in an undisclosed report that the rigorous testing to get into the unit should be changed to make it more open to women, called for tighter supervision and criticized officers for relying too heavily on force over negotiations.
Those conclusions and others, included in a draft of the panel's confidential report obtained by The Times, have deeply angered several Special Weapons and Tactics Team members, who say the changes -- some of which already have been imposed -- are misguided and will probably weaken the specialized unit that is charged with handling hostage situations and other high-risk operations.
"This is a recipe for disaster," said a SWAT officer who has served in the unit for more than a decade. "We don't get to back up and do things over. . . . These changes are going to put us and the public in danger."
Several current SWAT officers and one former team member who were interviewed for this report all spoke on condition that their names not be used, out of fear that they would face retaliation by superiors. In an agency that rarely, if ever, deals publicly with internal turmoil, the report exposes a growing rift between Bratton and the department's most storied group of officers. Rest of Article. . . [Mark Godsey]
Last night, the death penalty seminar I teach did a moot court of Kennedy v. Louisiana, presenting the question whether capital punishment is unconstitutionally disproportionate to the crime of the rape of a child. I do at least one of these moot courts every time I teach the seminar, but this was the first time I did so without benefit of the actual oral argument transcript or even the Petitioner's reply brief -- the case is scheduled for argument on April 16 and the Respondent's brief was filed just last Wednesday. The thing that struck me most after reading the briefs and participating in the moot was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons. Kennedy is almost the mirror image of those cases in several respects.
First, in Kennedy, it is the State that is relying heavily on social science data to prove the irrevocable harm to the victim of child rape, to distinguish the case from Coker v. Georgia, which holds that the death penalty is unconstitutionally disproportionate for the rape of an adult woman. One section of the Respondent's brief is replete with references to articles from social science journals discussing all the harms caused by child rape, many manifesting themselves later in life. This is reminiscent of the social science data relied upon so heavily by the defendants in Atkins and Roper to support the proposition that the mentally retarded and juveniles, respectively, are, as a class, less culpable and deterrable than other offenders.
Second, only six States capitalize child rape, a number that ordinarily would greatly help the defendant in showing that there is a national consensus against the death penalty for child rape. But, as the Respondent points out, Atkins and Roper both emphasize not simply the raw numbers in determining whether there is a national consensus, but "the consistency of the direction of change." In Atkins and Roper, the defendants both successfully argued that, even though only 30 of the 50 States -- and only 18 of the then-38 death penalty States -- banned the death penalty for the mentally retarded and juveniles, respectively, "the consistency of the direction of change" showed an emerging national consensus because a number of States had recently enacted such bans. In Kennedy, the State is able to flip this logic to their advantage by showing that all six States that capitalize child rape have done so within the last dozen years or so. Thus, "the consistency of the direction of change" in this context shows the lack of any national consensus because more States continue to capitalize child rape, breaking down whatever national consensus might otherwise exist. Moreover, while the defendants in Atkins and Roper were able to emphasize that the numbers of States enacting such bans were even more significant given the relative unpopularity of legislation that could be seen as "soft on crime," the State here can argue that the number of States capitalizing child rape is all the more significant in the face of the fact that many State legislators likely read Coker as banning the death penalty for all rape.
The final way in which Kennedy seems to be a mirror image of Atkins and Roper can be appreciated only by delving into Coker. Coker can be read either as forbidding the death penalty for the rape of an adult woman or as forbidding the death penalty for the crime of rape generally. Obviously, Respondent urges the Court to take the former reading and Petitioner urges that the Court take the latter reading. In Coker, the Court pointed out that Georgia alone allowed the death penalty for the rape of an adult woman so it was not hard for the Court to find the practice "unusual" in the Eighth Amendment sense. Yet, only two other States at the time provided for the death penalty for child rape. So even if the Court had addressed the constitutionality of the death penalty for child rape at the time of Coker, it seems to me the result would have been the same -- if only 3 of 50 States allow it, there is a national consensus against its use. After all, only five years later in Enmund v. Ohio, the Court found a national consensus against the death penalty for a minor participant in a felony murder who neither kills, intends to kill, or attempts to kill, where only 8 of the 50 States allowed for the death penalty in that context. It seems to me a difficult task for the State to argue that Coker doesn't settle the issue. Or at least that Coker didn't settle the issue in 1977.
And that brings me to my point: Respondent could have argued (but didn't) that regardless of the best reading of Coker as of 1977, the Eighth Amendment has changed as society has evolved. That is precisely what the Court suggested in Atkins and Roper. The Court in those cases did not overrule its prior precedents holding the death penalty constitutionally acceptable for the mentally retarded and juveniles, respectively. It appeared to hold instead that the meaning of the Eighth Amendment had itself changed between 1989 and 2002-2005. At least one argument the State could have made in Kennedy is that a similar change has occurred here, albeit in the opposite direction, refuting the notion that the "evolving standards of decency" test is a ratchet.
Time will tell whether any of these arguments appeal to the Members of the Court most likely to vote to uphold the Louisiana statute. It is certainly unlikely that Justices Scalia and Thomas would sign onto any opinion holding that the meaning of the Eighth Amendment has actually changed in the last 31 years. By the same token, it will be interesting to see what the more moderate Justices can do to get around what they set themselves up for in Atkins and Roper. Perhaps the most likely outcome will be a four Justice plurality consisting of the Chief Justice and Justices Scalia, Thomas, and Alito upholding the statute but rejecting (or ignoring) the Atkins/Roper methodology, with Justice Kennedy writing a separate concurrence in the judgment adapting that methodology to uphold the statute here. [Mike Mannheimer]
Monday, March 17, 2008
NPR.com: A recent effort by several states to slap stiff fines on reckless drivers has run into a rebellion in Virginia. State lawmakers have voted to throw the law out and give some of the money back after complaints about how fines were assessed. Listen. . . [Mark Godsey]
The Arizona Justice Project, a non-profit organization dedicated to
exonerating those wrongfully convicted and correcting other manifest
injustices, is moving to the Sandra Day O'Connor College of Law at
Arizona State University. For 10 years, the Project has been housed at
Osborn Maledon, P.A., where attorney Larry Hammond has served as chair.
The move is made possible by a $150,000 grant from the Arizona State Bar's non-profit foundation, the Arizona Foundation for Legal Services and Education, which also will allow the Project to hire its first permanent staff, including an executive director, a development director and an administrative assistant.
"The Arizona Justice Project has long set a high standard for the quality of its work in its pursuit of the rights of those who have been denied the justice our legal system has been set up to guarantee," said Dean Patricia White of the College of Law. "The quality of the legal work its volunteers have provided, and the enormous commitment to justice that they have shown, have made it a national exemplar.
"We are very proud to welcome the Project to the Sandra Day O'Connor College of Law and are confident that those standards will continue and that our students and faculty will benefit enormously from the opportunity presented by its being here." Hammond praised the move.
"The Arizona law schools have been the lifeblood of this Project from the beginning, but this relocation will allow us to work at levels never before possible," Hammond said. "Arizona Attorneys for Criminal Justice (AACJ) and all of those who have volunteered with the Project over the last decade owe a tremendous debt of gratitude to Dean White, the Sandra Day O'Connor College of Law, and to the Bar Foundation's leadership."
Professors Bob Bartels at Arizona State University and Andy Silverman at the University of Arizona have coordinated work at the law schools. Students from Phoenix School of Law also will participate.
"The project runs on volunteer work, and the best source is law students," Bartels said. "Moving to the law school will make it easier for the students and will forge a connection with faculty members who are experts in the area." Bartels said it is also more feasible for the Project to conduct its research in an academic environment.
CrimProf Carrie Sperling, a visiting associate clinical professor at the College of Law, has been chosen as executive director. Sperling spent five years as an assistant professor at the University of Oklahoma College of Law in Norman, Okla., and has more than a decade of experience in civil rights and post-conviction relief litigation.
"You learn that mistakes can be made, innocent people convicted," Sperling said. "Someone has to hold the system accountable. My real excitement is the ability to bring in students to get hands-on experience in the real world. It exposes them to a side of the law they might not have thought about. And these are rewarding cases." [Mark Godsey]
Spring 2008 issue of Ohio State Journal of Criminal Law is now available.
The main symposium says it all: "Toward a Just and Rational Body of Substantive Criminal Law: A Symposium in Honor of Sanford H. Kadish." Sandy Kadish is probably the twentieth century's foremost and most influential American substantive criminal law scholar. His casebook itself is a classic, which influenced countless thousands of future lawyers, judges, law professors (and subsequent casebooks).
NYU professor and casebook co-author Stephen Schulhofer served as Guest Editor of the Kadish symposium. Besides Professor Schulhofer's Introduction, the symposium includes articles by:
- Larry Alexander & Kim Ferzan ("Culpable Acts of Risk Creation");
- Andrew Ashworth ("Conceptions of Overcriminalization");
- Joshua Dressler ("Reforming Complicity Law: Trivial Assistance as a Lesser Offense?");
- Kim Ferzan ("Self-Defense and the State");
- Claire Finkelstein & Leo Katz ("Contrived Defenses and Deterrent Threats: Two Facets of One Problem");
- Stephen Morse ("Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility"); and
- Peter Westen ("Impossibility Attempts: A Speculative Thesis").
The issue has much more:
1. The Justice Harry A. Blackmun Lecture by Professor David Sklansky: "Is the Exclusionary Rule Obsolete?"
2. The Walter C. Reckless Memorial Lecture: John Hagan & Wenona Raymond-Richmond, "The Disturbing Case of the British Advertising Standards Authority, the New York Times, and the State Department's Low Estimate of the Death Toll in Darfur."
3. Three Commentaries: Stanley Goldman on "In Defense of the Damned"; Ethan Lieb's "A Comparison of Criminal Jury Decision Rules in Democratic Countries"; and Sandra Guerra Thompson, "Immigration Law and Long Term Residents: A Missing Chapter in American Criminal Law."
4. A review by Bruce Smith of Andy Taslitz's book, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (NYU Press 2006).
5. A one-time reprint of the inaugural articles from our new online "journal": OSJCL Amici: Views from the Field,. The essays:
- Judge Richard Kopf ("The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall");
- Judge Gerard Lynch ("Letting Guidelines Be Guidelines (and Judges Be Judges)");
- Judge Lynne Adelman & Jon Deitrich ("Gall, Kimbrough and Crack Retroactivity: Positive but Incomplete Steps in the Evolution of Federal Sentencing"); and
- Judge Nancy Gertner ("Gall, Kimbrough, and Me").
From nytimes.com: "The Supreme Court agreed Monday to decide whether prosecutors can use crime lab reports as evidence without having the forensic analyst who prepared them testify at trial.
"The reliability of crime labs has been questioned in several states and at the federal level in recent years.
"State and federal courts have come to different conclusions about whether recent Supreme Court decisions affirming the constitutional right of a defendant to confront his accusers extend to lab reports that are used in many drug and other cases." Rest of article . . . [Mike Mannheimer]