Criminal Procedure Commons^™

Revisiting The Legal Link Between Genetics And Crime, Deborah W. Denno

Faculty Scholarship

Unwarranted constraints on the admissibility of genetics evidence in death penalty cases can undercut some defendants' efforts to fight their executions. For example, genetics evidence can help validate some traditionally accepted mitigating factors (such as certain psychiatric or behavioral disorders) that can otherwise be difficult for defendants to prove. By imposing unreasonable limitations on genetics arguments, the criminal justice system may be undermining the very principles and progressive thinking the cap on genetics evidence was originally intended to achieve. Part II of this article briefly reviews the facts and legal arguments in Mobley v. State. Part III addresses the primary …

Souter Passant, Scalia Rampant: Combat In The Marsh, Samuel R. Gross

Articles

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas.

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

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

Cornell Law Faculty Publications

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 …

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

Michigan Law Review

When my client Robert South decided to waive his appeals so that his death sentence could be carried out, I understood why he might make that choice. Robert had a brain tumor that could not be surgically removed. Though not fatal, the tumor disrupted his sleep/wake cycle and had other negative physical consequences, including severe headaches, for his daily existence. He also had chronic post-traumatic stress disorder ("PTSD"), resulting from a profound history of childhood physical, emotional and sexual abuse. Robert suffered from daily recurrent flashbacks of the abuse. He had been on death row for almost a decade, and …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Faculty Articles

Recent empirical studies by economists have shown, without exception, that capital punishment deters crime. Using large data sets that combine information from all fifty states over many years, the studies show that, on average, an additional execution deters many murders. The studies have received much publicity, and death penalty advocates often cite them to show that capital punishment is sound policy.

Indeed, deterrence is the central basis that many policymakers and courts cite for capital punishment. For example, President Bush believes that capital punishment deters crime and that deterrence is the only valid reason for capital punishment. Likewise, the Supreme …

Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg

Cornell Law Faculty Publications

The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …

State, Be Not Proud: A Retributivist Defense Of The Commutation Of Death Row And The Abolition Of The Death Penalty, Dan Markel

ExpressO

In the aftermath of Governor Ryan's decision last year to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan’s action was a “grave injustice” and, from a retributivist perspective, “an unmitigated moral disaster.” This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide …

Va. Code Ann. S 19.2-163.7*

Capital Defense Journal

No abstract provided.

Capital Jurors As The Litmus Test Of Community Conscience For The Juvenile Death Penalty, Michael E. Antonio, Benjamin Fleury-Steiner, Valerie P. Hans, William J. Bowers

Cornell Law Faculty Publications

This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper. The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with …

Too Young For The Death Penalty: An Empirical Examination Of Community Conscience And The Juvenile Death Penalty From The Perspective Of Capital Jurors, William J. Bowers, Benjamin Fleury-Steiner, Valerie P. Hans, Michael E. Antonio

Cornell Law Faculty Publications

As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to …

Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey

Cornell Law Faculty Publications

Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an …

Standby Me: Self-Representation And Standby Counsel In A Capital Case, Meghan H. Morgan

Capital Defense Journal

No abstract provided.

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

All Faculty Scholarship

This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

Not To Decide Is To Decide: The U.S. Supreme Court's Thirty-Year Struggle With One Case About Competency To Waive Death Penalty Appeals, Phyllis L. Crocker

Law Faculty Articles and Essays

In 1995, the U.S. Supreme Court dismissed Rees v. Peyton, a case that had been on its docket since 1965. Rees was a death penalty case in which the petitioner sought to withdraw his petition for writ of certiorari so that he could be executed. The Court stayed the proceedings after Rees was found incompetent to waive his appeal, but the Court did not dismiss the case until after Rees died of natural causes. Rees pended in the Court during the terms of three Chief Justices. Even though the Court underwent major changes in personnel and philosophy during those years, …

Sattazahn V. Pennsylvania: Double Jeopardy And The Definition Of "Acquittal" In Capital-Sentencing Proceedings, Matthew G. Howells

University of Richmond Law Review

No abstract provided.

Representing Death-Sentence Appellants, Charles B. Blackmar

The Journal of Appellate Practice and Process

No abstract provided.

Preface, Brent E. Newton

The Journal of Appellate Practice and Process

No abstract provided.

Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson

Cornell Law Faculty Publications

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. …

It's Not Just For Law School Anymore: Clinical Education On The Death Penalty For Undergraduates, Jon Gould

Journal of Legal Education

No abstract provided.

Virginia's Capital Jurors, Stephen P. Garvey, Paul Marcus

Cornell Law Faculty Publications

Next to Texas, no state has executed more capital defendants than Virginia. Moreover, the likelihood of a death sentence actually being carried out is greater in Virginia than it is elsewhere, while the length of time between the imposition of a death sentence and its actual execution is shorter. Virginia has thus earned a reputation among members of the defense bar as being among the worst of the death penalty states. Yet insofar as these facts about Virginia's death penalty relate primarily to the behavior of state and federal appellate courts, they suggest that what makes Virginia's death penalty unique …

Va. Code Ann. S 19.2-327.01

Capital Defense Journal

No abstract provided.

The Death Penalty And Adversarial Justice In The United States, Samuel R. Gross

Book Chapters

In a volume devoted to comparing adversarial and inquisitorial procedures in Western countries, the subject of the death penalty is an anomaly. Any system of adjudication must address several basic tasks: how to obtain information from parties and witnesses, how to evaluate that information, how to utilize expert knowledge, how to act in the face of uncertainty, how to review and reconsider decisions. By comparing how competing systems deal with these tasks we can hope to learn something about the strengths and weaknesses of alternative approaches to common problems. The death penalty, however, is not an essential function of a …

The Capital Jury And Empathy: The Problem Of Worthy And Unworthy Victims, Scott E. Sundby

Articles

No abstract provided.

Nothing Less Than The Dignity Of Man: Evolving Standards, Botched Executions And Utah's Controversial Use Of The Firing Squad , Christopher Q. Cutler

Cleveland State Law Review

While outrage boils to the surface when Utah uses its firing squad option, there is little substantive legal development concerning the firing squad's use. Few cases have challenged the firing squad's constitutionality. This article discusses the legal and political implications of the firing squad. Using the Supreme Court's everdeveloping Eighth Amendment jurisprudence as a guide, this article discusses whether the firing squad, both historically and in its present application, passes constitutional muster. Beyond those factors that trigger constitutional protection, this article discusses those elements of the firing squad's use which define society's humanity and demonstrate our dignity. In the end, …

Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume

Cornell Law Faculty Publications

A little over a decade ago, in Payne v. Tennessee, the U.S. Supreme Court cleared the way for capital sentencing juries to consider “victim impact evidence” (VIE). Reversing its prior decisions in Booth v. Maryland and South Carolina v. Gathers, a six to three majority of the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Part I of this Article will discuss the Court’s prior decisions in Booth and Gathers, and Parts II and III will …

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

This article is available at:

http://scholarship.law.cornell.edu/facpub/290/.

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds.

Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. Moreover, the handful of empirical analyses that do exist rely on data gathered in simulation studies. Although valuable contributions have emerged from these experimental studies, such studies have often-rehearsed …

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds. Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. We analyze the influence of VIE based on interviews with over two-hundred jurors who sat on capital trials in South Carolina between 1985 and 2001.

First, we describe the VIE introduced at sentencing trials, using a …

The Prostitution Of Lying In Wait, H. Mitchell Caldwell

University of Miami Law Review

No abstract provided.