Author: Kent Scheidegger

Major Death Penalty Decision in McKinney

by · Feb 25, 2020 11:33 am

Today the U.S. Supreme Court decided two major issues in capital litigation in McKinney v. Arizona. The Court affirmed that the jury trial requirement of Ring v. Arizona applies only to the finding of an aggravating circumstance that makes a defendant eligible for the death penalty, not to the weighing process or the final sentencing decision.

The Court also reaffirmed that a state appellate court may fix a problem at trial regarding the aggravating and mitigating circumstances by reweighing them itself, rather than sending the case back for a new sentencing hearing.

Continue reading . . .

Malvo, Mootness, and Munsingwear

by · Feb 24, 2020 4:38 pm

As noted in my post earlier today, the Virginia Legislature has enacted a law that eliminates, for that state, the dispute underlying the U.S. Supreme Court case of Mathena v. Malvo, No. 18-217. There is no doubt that the case should now be removed from the Supreme Court’s docket, leaving the issue to be decided in another case. It does matter how this is done, however.

Virginia had successfully asked the Court to take up the case to decide this question:

Did the Fourth Circuit err in concluding that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review is properly interpreted as modifying and substantially expanding the very rule whose retroactivity was in question?

Virginia then proceeded to argue that the answer is “no.” That is correct, in my opinion, and it remains correct despite the legislative change mooting the underlying question. Why should this erroneous precedent stand until the Supreme Court is able to decide the issue in another case?

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Virginia Legislature Moots D.C. Sniper, Jr. Case

by · Feb 24, 2020 11:38 am

The Virginia Legislature has passed, and today the Governor signed, a bill creating the possibility of parole for anyone who commits any number of murders if the killer is even one day short of his eighteenth birthday at the time of the last crime.

Among the beneficiaries of this ill-considered legislation is Lee Malvo, the younger of the D.C. Sniper pair who murdered twelve people during their 2002 reign of terror. Malvo’s case is presently before the Supreme Court, but in light of the legislation the parties have stipulated for it to be dismissed.

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Who You Gonna Appeal To?

by · Feb 24, 2020 10:44 am

When the legislative or executive branches of government violate the Constitution, we generally look to the courts for correction. But where do you go when a rule of the Supreme Court itself violates the Constitution?

The Constitution gives the Supreme Court original jurisdiction over, among other cases, suits between States. See Art. III, § 2, cl. 2. Congress has made that jurisdiction exclusive, i.e., a State can’t file its suit against another State anywhere else. See 28 U.S.C. § 1251(a). Yet the Supreme Court’s Rule 17 requires States to ask permission to file an original suit there. Is that constitutional? I have long believed it is not, and today I have some distinguished company. But where would an aggrieved State appeal this question?

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The Progressive Prosecutor Project

by · Feb 18, 2020 3:09 pm

Andrew McCarthy has this article in Commentary with the above title.

May I introduce to you, then, a new and uniquely destructive actor on the 21st-century scene: the progressive prosecutor.

For such law “enforcers,” the obstruction of immigration-law enforcement barely scratches the surface. The agenda here is to obstruct prosecution itself.

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A Pardon for an Antique Crime

by · Feb 18, 2020 11:04 am

“Misprision of felony” is failure to report a felony committed by someone else. It is not a crime in most states, either abolished long ago or never a crime in the first place, but it curiously survives in the federal criminal code. In 1998, Edward DeBartolo, then owner of the SF 49s, pled guilty to this crime as part of a deal. Today, President Trump pardoned him, Catherine Lucey reports in the WSJ.

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Leaving San Quentin

by · Feb 14, 2020 4:52 pm

On January 29, California’s prison agency announced a pilot program to move some death row inmates out of San Quentin to one of five other prisons. The press has only picked up on it in the last few days. A lot of the reaction has been to statements in the press reports. The actual regulation was not easy to find, but after finding it I conclude that it is mostly implementing the initiative the people approved and I had a hand in writing. Continue reading . . .

Oklahoma to Resume Executions

by · Feb 13, 2020 10:18 am

Melissa Scavelli reports for KOKH:

According to officials, the state has found a reliable supply of drugs to resume executions by lethal injections.

The state said they will use an updated version of the previous protocol based on recommendations by the 2016 multicounty grand jury.

Midazolam, vecuronium bromide, and potassium chloride will once again be used officials said.

Midazolam is not the optimum choice. Resort to it is needed only because the “guerilla war against the death penalty” has succeeded in intimidating suppliers into cutting off the supply of barbiturates. Continue reading . . .

Dr. Drew: Prop. 47 Is Murder

by · Feb 12, 2020 10:17 am

Mary Stringini reports for Fox 11 in L.A.:

Dr. Drew Pinsky is calling on lawmakers to modify Prop 47, which he says is enabling individuals with mental health issues to deny treatment.

“The fact is — (Prop) 47 is murder. It is murder,” Dr. Drew told FOX 11 during a Good Day LA interview Monday morning. Continue reading . . .