Law Commons^™

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

When Will Race No Longer Matter In Jury Selection?, Bidish Sarma

Michigan Law Review First Impressions

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson-when, if ever, can governmental race discrimination in jury selection be tolerated?-was easy. The lingering factual question, however-when will prosecutors cease to discriminate on the basis of race?-has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will …

Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma

Michigan Law Review First Impressions

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …

Appellate Review Of Patent Claim Construction: Should The Federal Circuit Be Its Own Lexicographer In Matters Related To The Seventh Amendment, Eileen M. Herlihy

Michigan Telecommunications & Technology Law Review

The Federal Circuit stated in an en banc decision in Cybor Corp. v. FAS Technologies, Inc. that the construction of patent claims is "a purely legal issue," and is therefore subject to de novo review on appeal. The Cybor decision reaffirmed the position of the majority of the Federal Circuit which had been announced in its en banc Markman decision, and proclaimed that the de novo standard of review is supported by the Supreme Court's Markman decision, a Seventh Amendment opinion. However, Cybor included strong opposition to a de novo standard of review from some of the judges of the …

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

Legitimizing Error, Rebecca E. Woodman

Michigan Law Review First Impressions

Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of …

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The Revolution Enters The Court: The Constitutional Significance Of Wrongful Convictions In Contemporary Constitutional Regulation Of The Death Penalty, Jordan Steiker

Michigan Law Review First Impressions

Over the last decade, the most important events in American death pen-alty law have occurred outside the courts. The discovery of numerous wrongfully convicted death-sentenced inmates in Illinois led to the most substantial reflection on the American death penalty system since the late 1960s and early 1970s. Former Illinois Governor George Ryan, a Republi-can, first declared a moratorium on executions in 2000 and eventually commuted all 167 inmates on Illinois’s death row in 2003. The events in Illinois reverberated nationwide. Almost overnight, state legislative agendas shifted from expanding or maintaining the prevailing reach of the death penalty to studying its …

Putting The Guesswork Back Into Capital Sentencing, Sean D. O'Brien

Michigan Law Review First Impressions

In 1972, in Furman v. Georgia, the Supreme Court deemed it “incon-testable” that a death sentence is cruel and unusual if inflicted “by reason of [the defendant’s] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.” Arbitrary and discriminatory patterns in capital sentencing moved the Court to strike down death penalty statutes that required judges or juries to cast thumbs-up or thumbs-down verdicts against offenders found guilty of capi-tal crimes. The issue of innocence was barely a footnote in Furman; the Court’s concerns focused on …

Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert

Articles

This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court’s conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that forbids convicted felons from possessing …

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

Articles

In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert

Articles

This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court's conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that precludes convicted felons from possessing …

Petty Offenses, Serious Consequences: Multiple Petty Offenses And The Sixth Amendment Right To Jury Trial, Jeff E. Butler

Michigan Law Review

In Blanton v. City of North Las Vegas, the Supreme Court set forth the definitive standard for distinguishing petty offenses from serious crimes.7 The benchmark used by the Court is the maximum prison term assigned to each offense by the legislature. Where the penalty exceeds six months' imprisonment, the offense is serious enough to trigger the right to jury trial. Where the penalty is six months' imprisonment or less, there is a strong presumption that the offense is petty; therefore, a defendant accused of that offense has no Sixth Amendment right to jury trial.

This Note argues that a criminal …

Asymmetrical Peremptories Defended: A Reply, Richard D. Friedman

Articles

Three years ago, with the publication of his article ''An Asymmetrical Approach to the Problem of Peremptories" in this journal, Professor Friedman initiated a debate on the subject that was taken up in 1994 by three prosecutors who offered a rebuttal that was also printed in these pages. Professor Friedman continues the debate.

The Death And Transfiguration Of Frye, Richard D. Friedman

Articles

The rule of Frye v. United States was seventy years old, and had long dominated American law on the question of how well established a scientific principle must be for it to provide the basis for expert testimony. Even after the passage of the Federal Rules of Evidence, several of the federal circuits, as well as various states, purported to adhere to Frye's "general acceptance" standard. But now, unanimously, briefly, and with no apparent angst, the United States Supreme Court has held in Daubert v. Merrell Dow Pharmaceuticals, Inc. that the Frye rule is incompatible with the Federal Rules.

Excuses, Excuses: Neutral Explanations Under Batson V. Kentucky, Michael J. Raphael, Edward J. Ungvarsky

University of Michigan Journal of Law Reform

The legal struggle for racial justice in the United States has always been in part a struggle to determine how best to achieve racial equality. In 1986, in Batson v. Kentucky, the United States Supreme Court attempted to curb racial discrimination in the use of peremptory challenges to strike potential members of a jury. The Court mandated procedures for determining whether a prosecutor had struck members of the venire because of their race. The procedures furnished in Batson are quite general, however, and lower courts have used a variety of standards in implementing them. This Article examines how lower …

An Asymmetrical Approach To The Problem Of Peremptories?, Richard D. Friedman

Articles

The Supreme Court's decision in Batson v. Kentucky, and the extension of Batson to parties other than prosecutors, may be expected to put pressure on the institution of peremptory challenges. After a brief review of the history of peremptories, this article contends that peremptories for criminal defendants serve important values of our criminal justice system. It then argues that peremptories for prosecutors are not as important, and that it may no longer be worthwhile to maintain them in light of the administrative complexities inevitable in a system of peremptories consistent with Batson. The article concludes that the asymmetry of allowing …

To Tell What We Know Or Wait For Godot?, Phoebe C. Ellsworth

Articles

Professor Elliott raises two questions about the American Psychological Association's practice of submitting amicus briefs to the courts. First, are our data sufficiently valid, consistent, and generalizable to be applicable to the real world issues? Second, are amicus briefs adequate to communicate scientific findings? The first of these is not a general question, but must be addressed anew each time the Association considers a new issue. An evaluation of the quality and sufficiency of scientific knowledge about racial discrimination, for example, tells us nothing at all about the quality and sufficiency of scientific knowledge about sexual abuse. "Are the data …

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

Articles

It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …

Verdicts, General And Special, Edson R. Sunderland

Articles

The most remarkable thing about this case of Georgia v. Brailsford is that a matter of such elementary importance in the daily administration of the law, after being announced in so dramatic a way by the Supreme Court of the United States at the very threshold of its career, could have dropped into oblivion for a hundred years only to be repudiated in a way hardly less dramatic by a sharply divided court. The controversy here disclosed goes to the very heart of the jury system as it has been developed by the common law and is still almost universally …