Tuesday, March 12, 2013

Withering Away - The News of the Week

When you don't get around to blogging for a week, you miss a lot.

I'd like to have written about how the Senate in Maryland voted to abolish the state's death penalty.  It seems a certainty that the House will follow suit.  (The Senate was less sure.)  Then Governor O'Malley - who's been pushing this - will happily sign the bill.  Maryland will then be the sixth state in six years to become abolitionist.  

There are efforts, with varying degrees of plausibility, in Washington State and Colorado and New Hampshire (where a former governor vetoed abolition legislation a few years ago, but the current governor is willing to sign it) and probably a few other places be next in line.   Of course, there are also efforts to bring back the death penalty in places like Iowa.  But we're clearly gaining more ground on this than we're losing.

Meanwhile, in Oregon, the state Supreme Court is getting set to hear oral argument on Thursday on whether Gary Haugen's lawsuit against Governor Kitzhaber.  Haugen claims that he has a right to, and wants to, refuse Kitzhaber's reprieve of his death sentence.  Haugen wants to die.  Kitzhaber doesn't want to kill him but hasn't actually commuted his death sentence.  Haugen won a less-than-enthusiastic victory in the Oregon trial court.  One of his claims is that a life sentence (which would be the alternative if he's never executed, although the reprieve is actually only through the end of Kitzhaber's term, so the next gov could feel free to kill Haugen) would be cruel and unusual punishment in violation of the 8th Amendment.  Hmmm.

SCOTUS is getting set for oral arguments on same sex marriage.

Leading up to passover, there's a plague of locusts in Egypt.

The blawgosphere (or at least the corner of it I follow), is all atwitter (and maybe a-tweeting, but since I don't, I don't know) over jurors asking questions (see Turk and Greenfield and Gideon and Matt Brown).  Here in Ohio we've got some experience with juror questioning since the Ohio Supremes endorsed it (at the discretion of the trial judge) a number of years ago.

The criminal lawyers who've experienced the process (lots of judges just won't do it - or won't if anyone objects, so it's very far from a universal practice) are split.  Some think it helps them.  Some think it hurts.  The judicial proponents of it say it enhances the goal of trials being a "search for truth" and that anything advancing that goal is a positive.  We who do criminal defense, know that the search for truth (gee, what actually happened that afternoon?) is rarely a bonus for our clients.  Hell, if all you want to know is what happened, why bother with things like the rules of privilege?  (Ooops, don't mean to make any suggestions here.)

Also, it makes jurors happy with the judge.  And our judges are elected.

My view, argued in court, in appellate briefs, in a cert petition, and in public forums with one of the judges who spearheaded the drive in Ohio, is that ours is an adversary system where the issue is what the government manages to prove.  Jurors getting to satisfy their curiosity is at odds with that.  They don't get to investigate the facts on their own.  And they don't get to question.  Or at least they shouldn't.  (Neither, by the way, should judges, I don't think, though that's an even tougher sell.)  And it carries, always, the risk that they'll ask the question that helps the government make its case.
 
And a judge in New York called a halt to Mayor Bloomberg's ruling that sugared soft drinks can't be bigger than 16 ounces.

But none of that is what I want to write about.  What I want to write about is what's happened in the Old Dominion State.  Here are some numbers:
  • 110
  • 2
  • 57
  • 8
  • 3
  • 1
  • 0
  • 1
  • 2
  • 0
Here's what they mean.  From the top:  Virginia has executed 110 men since executions resumed in 1976.  That's number 2 in the nation, after Texas.  In 1995, there were 57 folks on death row there.  Right now there are 8.  And it's not just 'cause they've been killing their way to a smaller row.  In 2010, there were 3 executions.  There was 1 in 2011.  None at all last year.  One so far this year.  In the past five years, they've put only 2 people on the row.  None at all last year.

It's quite extraordinary.  Some of it's court decisions.  Some of it is in fact killing.  Some is changing attitudes.  But here's the bottom line from David Bruck, one of our great capital defense lawyers and director of the Virginia Capital Case Clearinghouse at Washington and Lee University School of Law, as quoted by AP.
The process has largely ground to a halt. That is a huge development.
There have been just 4 executions in the US of A this year.  One each in Virginia, Texas, Georgia, and Ohio.  There are lots of reasons, and the pace is likely, I suppose, to pick up a bit, but that's tiny compared to what we've seen in past years.
The process has largely ground to a halt.
That's what I wanted to write about.

Of course, that all may prove to be trivia for us here in the good ol' USA if Dennis Rodman's good buddy Kim Jung-Nuts carries out his threat of a first-strike nuclear attack on us.

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