Author: Kent Scheidegger

Justice Gorsuch as the “Swing Vote” on Executions?

by · Nov 10, 2021 9:07 am

Yesterday after listening to the oral argument in Ramirez v. Collier, the Supreme Court’s clergy-in-the-execution-chamber case, I noted that the most important question is not whether the State or the murderer wins on the details of this case but whether we are going to have a permanent new layer of litigation further delaying already badly delayed justice in these cases.

Now we have the transcript of the argument and Amy Howe’s characteristically thorough and unbiased report. What the justices said during the argument is interesting, but perhaps more interesting is what one justice did not say. Justice Gorsuch is usually active in argument, but in this case he said zilch. Given that the other justices may very well be divided 4-4, the decision in this case may rest on him. Continue reading . . .

A Permanent New Layer of Capital Litigation?

by · Nov 9, 2021 10:50 am

The anti-death-penalty crowd hit the jackpot some years back when they discovered that they could add a new layer of litigation to a capital punishment process that already has too many layers. Civil litigation over the method of execution has become routine. It has stopped executions in some states but not others. The promising new tool for obstruction is civil litigation over whether the state has gone far enough to accommodate the inmate’s real or fabricated religious needs during the execution process.

This is the real issue beneath today’s argument in the U.S. Supreme Court in Ramirez v. Collier, No. 21-5592. The case was discussed in this post on October 25. Continue reading . . .

Landslide in Seattle

by · Nov 3, 2021 10:53 am

Voters in the famously left-leaning city of Seattle rejected the defund/woke candidates by wide margins in yesterday’s local election. Alec Regimbal has this story for the Seattle Post-Intelligencer.

In the race to become Seattle’s next mayor, former Seattle City Council President Bruce Harrell is triumphing over M. Lorena González, the council’s current president.

Harrell’s decision to appeal to residents who are fed up with homelessness, as well as the way he distanced himself from a city council that vowed to cut the police budget in half last year, appears to have paid off. Harrell has secured 84,975 votes — 65% — while González has won 46,046 votes, just 35%.

Wow. A 2-to-1 landslide in a bastion of progressiveness. Continue reading . . .

Does AAIDD Have the Power to Amend the Constitution?

by · Nov 1, 2021 4:05 pm

The President cannot amend the Constitution. Congress cannot by itself. The legislatures of the States cannot, by themselves. Only 2/3 of both houses of Congress and 3/4 of the state legislatures (or convention alternatives) can do that, according to Article V of the Constitution. The Founders made it very difficult on purpose, as our fundamental law should rarely change, and only if there is a genuine consensus to change it.

But does the American Association on Intellectual and Developmental Disabilities (AAIDD), a private organization that the people have no voice in selecting, have the power to amend the Eighth Amendment by itself and widen the class of people that amendment (the Supreme Court says) exempts from capital punishment regardless of how horrible the crime or how clearly premeditated it was? That is one possible interpretation of the Supreme Court’s misguided 2017 decision in Moore v. Texas. See this post. The Supreme Court today turned down a case, over the dissent of Justices Sotomayor, Breyer, and Kagan, presenting that question. Continue reading . . .

Crime Policy on the Ballot Tomorrow

by · Nov 1, 2021 3:06 pm

“Issue one, two, three in this election is crime and violence,” said former and possibly future Atlanta Mayor Kasim Reed, quoted in this article in the WSJ by Cameron McWhirter. As Bill noted yesterday, we are seeing shifts in public opinion and political campaigns as the country slowly sheds its “woke” delusions and recognizes the reality that softness on crime means more crime. Continue reading . . .

Restore the “Rigid Order of Battle Rule” for Qualified Immunity Cases?

by · Oct 28, 2021 3:00 pm

When the complaining party in a lawsuit must clear multiple hurdles in order to obtain relief, does the judge need to decide them in any particular order? The answer is “sometimes.” See pages 20-23 of CJLF’s brief in Brown v. Davenport, presently pending in the U.S. Supreme Court.

In cases where a public employee (very often a police officer) is claimed to have violated someone’s rights and asserts qualified immunity, there was for eight years a “rigid order of battle rule.” The Supreme Court decided in Saucier v. Katz (2001) that judges must decide whether the plaintiffs’ allegations, if true, would amount to a constitutional violation before deciding whether that rule was “clearly established” so as to defeat the claim of qualified immunity. In Pearson v. Callahan (2009), the Court decided unanimously that the rule was a bad idea and dumped it. See this post.

John Ketchum has this article in the City Journal calling for the return of the Saucier rule. Though I supported dumping the rule, Ketchum does make some interesting points. Continue reading . . .

Murder Cases Bumped from SCOTUS Calendar

by · Oct 25, 2021 1:51 pm

The U.S. Supreme Court had scheduled two murder cases, both involving defendants named Ramirez, for argument on November 1. Last Friday, however, the Court bumped them and scheduled arguments on the controversial Texas abortion law for that date. Yes, Virginia, there really is a Supreme Court issue more controversial than capital punishment. Continue reading . . .

Is the Federal Death Penalty Act’s Evidence Rule Unconstitutional?

by · Oct 25, 2021 10:43 am

Is the Federal Death Penalty Act’s evidence provision unconstitutional? Does the defendant have a constitutional right to introduce evidence of marginal probative value outweighed by other considerations, which the statute says the trial judge may exclude?

These are the surprising implications of the defense argument in the Boston Marathon Bomber case, argued in the U.S. Supreme Court October 13. I suppose if you are defending the indefensible you have to argue something. But it is surprising when a lawyer barely mentions the primary ground of the decision she is asking to have affirmed. Continue reading . . .

Spam With a Smile

by · Oct 22, 2021 9:49 am

Spam is mostly a pain in the gluteus maximus, but every once in a while it furnishes some amusement. I got this gem in my inbox this morning.

I’m emailing you today because I noticed James H wrote a bad review for your company, U.S. Department Of Justice on Google. I don’t think it’s a fair review and I want to help you remove it and others from Google, Avvo, Yelp, and other review sites. We built our company, Dandy, with the sole purpose of helping law firms remove unfair bad reviews … Continue reading . . .