Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part II, Reasonable Minds Before Ramos

by · Dec 15, 2020 3:37 pm

In the previous post in this series, I noted that the Supreme Court has stated clearly that any decision that overrules a prior decision is necessarily a “new rule” for the purpose of Teague v. Lane. The 1972 cases that upheld non-unanimous 12-person juries in state criminal cases, Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 406 U.S. 356 (1972), were decisions for the purpose of this rule, even if neither contained one opinion that expressed a rationale agreed to by a majority.

Nonetheless, in Ramos v. Louisiana, three Justices opined that these cases were not precedents, and therefore the Supreme Court did not need to go through the usual analysis of whether to overrule a precedent in order to strike down Louisiana’s non-unanimous jury law. If we assumed that the view of these three was correct for the sake of argument, would it follow that Ramos is not a “new rule” for the purpose of retroactivity under Teague? No. Continue reading . . .

USCA9 Chastised on AEDPA Yet Again

by · Dec 15, 2020 2:23 pm

One year ago this Friday, Judge Carlos Bea of the Ninth Circuit warned his colleagues they were headed for reversal in Kayer v. Ryan, No. 09-99027: “Like clockwork, practically on a yearly basis since the Millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under the Antiterrorism and Effective Death Penalty Act (‘AEDPA’”).”

Sure enough, yesterday the Supreme Court summarily reversed, saying “the Court of Appeals clearly violated this Court’s AEDPA jurisprudence.” Continue reading . . .

Gascón to Shorten Sentence for Cop Killer

by · Dec 15, 2020 1:03 pm

Newly elected Los Angeles District Attorney George Gascón has decided to drop the special circumstance allegations for a Utah man who killed two people on the same day in June of 2019.  Robert Gearty of Fox News reports that during a crime-spree which  included two armed robberies, Rhett Nelson shot off-duty LA Sheriff’s Deputy Joseph Solano while he was waiting in line at a Jack in the Box.  Earlier that day Nelson shot and killed Dmitry Kolsov as he stood outside a building in downtown LA.   Police believe that the killings were random.

Continue reading . . .

Bill of Rights Day

by · Dec 15, 2020 9:45 am

On this day in 1791, the first ten amendment to the Constitution were ratified, collectively known as the Bill of Rights.

Observance and enforcement of the Bill of Rights in all three branches of government has been uneven since then. At various times, the courts have both made up provisions that are not there and ignored provisions that are there. The elected branches sometimes seem disposed to give the Bill of Rights no more respect than the courts will require. And of course the Bill of Rights did not take us all the way home to the ideals expressed in the Declaration of Independence. We still had a long way to go.

Despite the limitations and imperfect observance, though, the Bill of Rights has been an important element of American liberty. Our Founding Fathers deserve our respect and thanks for this large and important step in the progress of liberty.

Criminal Released on Zero Bail Kills Girlfriend

by · Dec 14, 2020 9:44 am

A California gang member convicted of the stabbing murder of his 17-year-old girlfriend has been sentenced to 12 years in prison.  Kristine de Leon of KTLA reports on the day that he stabbed Jolina Ramirez to death, Miguel Angel Reyes has just been released from the Orange County jail under the state’s zero-bail order to protect him from catching Covid-19.  Reyes was being held for a gang-related crime at the time of his release.  As the Orange County District Attorney noted, “We didn’t need the zero-bail experiment to tell us what we already knew:  when you let criminals out of jail, they commit more crimes.  It is an unforgivable tragedy that a 17-year-old girl is dead—and she didn’t have to die.”

Making an Easy Retroactivity Case Difficult: The Argument in Edwards v. Vannoy — Part I, Overruling Apodaca

by · Dec 11, 2020 5:10 pm

On December 2, the U.S. Supreme Court held oral argument in Edwards v. Vannoy, No. 19-5807, on an easy question with an obvious answer. Is the Court’s decision last term in Ramos v. Louisiana, that unanimous juries are required in state criminal cases, retroactive to cases already final on direct appeal under the rule in Teague v. Lane? As noted in the Justice Kavanaugh’s opinion in Ramos itself, the answer is clearly “no.” See this post.

Yet from the argument the Court seems to have unexpected difficulty with this easy question. In a series of posts, I will go through some of the questions the Justices had at the argument and offer my answers. Continue reading . . .

Bill Barr, Like Jeff Sessions, Acted on Principle

by · Dec 11, 2020 4:02 pm

For full disclosure purposes, I should begin by saying that I know Bill Barr slightly and spoke with him on the phone a while back about matters not involving either the election or the Supreme Court.  With that out of the way, let me say this:  It’s time for Barr’s enemies to step up to apologize for their numerous false and scurrilous attacks on him.  He has proven to be a worthy successor to Jeff Sessions  —  another man who put principle before ambition  —  and has shown himself to be an honorable leader of the Justice Department.

Continue reading . . .

Federal Murderer Executed

by · Dec 11, 2020 10:55 am

A man convicted of participating in the double-murder of a young Texas couple was executed by lethal injection at a federal penitentiary Thursday.  Paulina Smolinski and Clare Hymes of CBS News report that Brandon Bernard apologized for the murders before he died.   Facts presented in a Fifth Circuit Court of Appeals decision indicate that in June of 1999, two members of a gang that Bernard belonged to kidnapped Todd and Stacie Bagley from a convenience store parking lot. After taking Stadie’s jewelry and the couple’s ATM cards, they forced them to drive to a bank where the kidnappers withdrew money from an ATM.   They then met up with Bernard and another gang member who had brought a can of gasoline.  The four then drove the couple to a remote federal preserve, forced them into the trunk before one of the group shot both victims with Bernard’s .40 caliber Glock.  Bernard then doused the car with gasoline and set it on fire.

Continue reading . . .

“Violence Interrupters” — A Story You Can’t Make Up

by · Dec 10, 2020 5:23 pm

What in the world is a “violence interrupter”? If you thought that might be a euphemism for a law enforcement officer—or maybe a prison guard—you’d be wrong. Here’s what Wikipedia says it is: “Violence interruption is a community-based approach to reducing communal and interpersonal violence that treats violence as a public health problem. Individuals providing violence interruption services are known as violence interrupters.” 

OK, sounds a little nutty but probably harmless  —  until you see the rest of it, courtesy of Steve Hayward’s note on PowerLine.

Continue reading . . .