Law Commons^™

Unwell: Indiana V. Edwards And The Plight Of Mentally Ill Pro Se Defendants, John Blume, Morgan Clark

John H. Blume

Plea Bargaining And The Right To The Effective Assistance Of Counsel: Where The Rubber Hits The Road In Capital Cases, John H. Blume

John H. Blume

No abstract provided.

An Empirical Look At Atkins V. Virginia And Its Application In Capital Cases, John Blume, Sheri Johnson, Christopher Seeds

John H. Blume

In Atkins vs. Virginia, the Supreme Court declared that evolving standards of decency and the Eighth Amendment prohibit the death penalty for individuals with intellectual disability (formerly, "mental retardation"). Both supporters and opponents of the categorical exemption, however, have criticized the Atkins opinion. The Atkins dissent, for example, urged that the decision would open the gates of litigation to a flood of frivolous claims. Another prominent criticism, heard from those more supportive of the Court's ruling, has been that the language the Court used communicating that states must "generally conform" to the clinical definitions of mental retardation is ambiguous enough …

The Dance Of Death Or (Almost) "No One Here Gets Out Alive": The Fourth Circuit's Capital Punishment Jurisprudence, John H. Blume

John H. Blume

No abstract provided.

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John Blume, Emily Paavola

John H. Blume

This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.

Reliability Matters: Reassociating Bagley Materiality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher Seeds

John H. Blume

No abstract provided.

Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume

John H. Blume

In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment. Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws, and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster, the South Carolina General Assembly passed the current death penalty statute in 1977. The …

Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases - Lessons From The Front, John H. Blume, Emily C. Paavola

John H. Blume

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, …

Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson

John H. Blume

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …

Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld

John H. Blume

No abstract provided.

Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson

John H. Blume

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious …

When Lightning Strikes Back: South Carolina's Return To The Unconstitutional Standardless Capital Sentencing Regime Of The Pre-Furman Era, John H. Blume, Sheri Johnson, Emily C. Paavola, Keir M. Weyble

John H. Blume

No abstract provided.

"It's Like Deja Vu All Over Again": Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard And A (Partial) Return To The Guidelines Approach To The Effective Assistance Of Counsel, John H. Blume, Stacey D. Neumann

John H. Blume

Shoddy lawyering in capital cases is well documented. Many defendants facing the death penalty end up on death row not because of the heinousness of the crime they committed but rather because of the poor quality of trial counsel's performance. Despite the acknowledgment of sometimes shockingly poor representation by academics, litigators and even judges, most post-conviction claims of ineffective assistance of counsel are unsuccessful. Why? The legal standard for adjudicating these allegations which the Court adopted in Strickland v. Washington, which requires a defendant to demonstrate that his lawyer's performance was outside the "wide range of competent assistance" and that …

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

John H. Blume

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

Victim Gender And The Death Penalty, Caisa Royer, Amelia Hritz, Valerie Hans, Theodore Eisenberg, Martin Wells, John Blume, Sheri Lynn Johnson

John H. Blume

Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …

Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson

John H. Blume

In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more …

Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck

John H. Blume

Today, on death rows across the United States, sit a number of men with the minds of children. These people are mentally retarded. Typical of these individuals is Limmie Arthur, who currently is imprisoned at Central Correctional Institution in Columbia, South Carolina. Although Arthur is twenty-eight years old, all the mental health professionals who have evaluated him, including employees of the South Carolina Department of Corrections, agree he has the mental capacity of approximately a 10-year-old child. Arthur was convicted and sentenced to death for the murder of a neighbor. At his first trial, his court appointed attorneys did not …

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher W. Seeds

John H. Blume

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values. The doctrines, despite their common due process heritage …

Amici Curiae Brief Of New York Law School Professors In People V. Harris: Constitutionality Of The New York Death Penalty Statute Under The State Constitution's Cruel And Unusual Punishments And Antidiscrimination Clauses, Anthony G. Amsterdam, Ursula Bentele, Vivian Berger, John H. Blume, Peggy Davis, Deborah Denno, Markus Dubber, Stephen Ellmann, Deborah Fins, Eric M. Freedman, Stephen P. Garvey, Jack Greenberg, Randy Hertz, Sheri Lynn Johnson, Richard Klein, James Liebman, Peter Neufeld, Barry Scheck, Bryan Stevenson

John H. Blume

Amici are teachers in New York law schools who have studied the operation of the death penalty for the purpose of teaching the subject, writing about it in scholarly journals, or representing persons accused or convicted of capital crimes. Most of us have worked in the field both as academics and as pro bono counsel for condemned inmates. Collectively, we have had first-hand experience in hundreds of death cases, in dozens of jurisdictions, extending over more than a third of a century. Our experience has convinced us that capital punishment cannot be administered with the fairness, reliability, and freedom from …

The Dilemma Of The Criminal Defendant With A Prior Record - Lessons From The Wrongfully Convicted, John H. Blume

John H. Blume

This article examines challenges the conventional wisdom that an innocent defendants will testify on their own behalf at trial. Data gathered from the cases of persons subsequently exonerated due to DNA evidence demonstrates that factually innocent defendants do not testify on their own behalf at substantially higher rates than criminal defendants generally. Why? The primary reason is that many of these individuals had been previously convicted of a crime, and they did not testify at trial because of the risk that their credibility would be impeached with evidence of the prior record and, despite any limiting instruction the court might …

The Unexonerated: Factually Innocent Defendants Who Plead Guilty, John H. Blume, Rebecca K. Helm

John H. Blume

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly, in many of the cases, the defendant’s innocence is known, or at least highly suspected, at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in three sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their …

Explaining Death Row's Population And Racial Composition, John H. Blume, Theodore Eisenberg, Martin T. Wells

John H. Blume

Twenty-three years of murder and death sentence data show how murder demographics help explain death row populations. Nevada and Oklahoma are the most death-prone states; Texas's death sentence rate is below the national mean. Accounting for the race of murderers establishes that black representation on death row is lower than black representation in the population of murder offenders. This disproportion results from reluctance to seek or impose death in black defendant-black victim cases, which more than offsets eagerness to seek and impose death in black defendant-white victim cases. Death sentence rates in black defendant-white victim cases far exceed those in …

Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann

John H. Blume

No abstract provided.

Deadly Force In Memphis: Tennessee V. Garner, John H. Blume

John H. Blume

On October 3, 1974, officers Hymon and Wright of the Memphis Police Department responded to a call about a burglary in progress. When they arrived at the address, a woman standing in the door told the officers that she had heard glass breaking and that someone was breaking into the house next door. Officer Hymon went around the near side of the house. When he reached the backyard, he saw someone run from the back of the house. With his flashlight, he found a person crouched next to a fence at the back of the yard, some thirty to forty …

Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson

John H. Blume

Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that the …

The Changing Face Of Retroactivity, John H. Blume, William Pratt

John H. Blume

Teague v. Lane marked, in the eyes of many, an attempt by the United States Supreme Court to judicially limit the scope of federal habeas corpus review. In Teague, a plurality of the Court held that new rules of criminal procedure do not apply retroactively to cases which have already become final on direct review at the time the new rule is decided. Thus, in most cases, a petitioner in collateral proceedings will not receive the benefit of any new rules decided after his conviction is affirmed on direct appeal and the United States Supreme Court denies certiorari. Moreover, a …

"I Object" Is Not Enough: Tips For Criminal Defense Attorneys On Avoiding Procedural Default, John Blume, Emily Paavola

John H. Blume

No abstract provided.

Batson: Then And Now, Part I, John H. Blume, Elizabeth Piliavin

John H. Blume

No abstract provided.

Judicial Politics, Death Penalty Appeals, And Case Selection: An Empirical Study, John Blume, Theodore Eisenberg

John H. Blume

Several studies try to explain case outcomes based on the politics of judicial selection methods. Scholars usually hypothesize that judges selected by partisan popular elections are subject to greater political pressure in deciding cases than are other judges. No class of cases seems more amenable to such analysis than death penalty cases. No study, however, accounts both for judicial politics and case selection, the process through which cases are selected for death penalty litigation. Yet, the case selection process cannot be ignored because it yields a set of cases for adjudication that is far from a random selection of cases. …

Killing The Willing: "Volunteers," Suicide And Competency, John H. Blume

John H. Blume

Of the 822 executions, in the modern era of capital punishment, 106 involved volunteers, or inmates who chose to waive their appeals and permit the death sentence to be carried out. The debate about volunteers, although intense, has primarily been polemic. Those who wish to curtail a death row inmate’s ability to waive his appeals refer to volunteer cases as nothing more than “state assisted suicide;” advocates of permitting inmates to choose execution reject the suicide label, instead focusing on respect for a death row inmate’s right to choose whether to accept his punishment. This article takes a different approach. …