tag:blogger.com,1999:blog-5945843206427351559.post229187753201893647..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: 2011 So Far: Life and Life and Life While Dead and Death and Death and Who KnowsJeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5945843206427351559.post-47224636106260469752011-01-14T10:30:12.597-05:002011-01-14T10:30:12.597-05:00We routinely file pre-trial motions to declare Ohi...We routinely file pre-trial motions to declare Ohio's death penalty broadly unconstitutional. They're routinely denied. Occasionally the state argues that they aren't ripe. Nobody pays attention to that argument unless there's an actually targeted motion dealing with something more specific. I had a partial win on one a couple of years ago. I've got another that I'm appealing (pre-trial, though Ohio is very wary of ever letting a defendant take pre-trial appeals) right now.<br /><br />But as for your more specific question, Scott, Green was making a claim that could not have been raised post-trial and that the CCA had already said couldn't be made as a facial challenge. So they made it personal. That threw them into a different sort of mess, but the court could easily have gotten around it if they'd cared to. <br /><br />That's why I keep saying that I don't believe in the uppercase Law. Legal analysis becomes the after-the-fact excuse for the decision courts want to make rather than the basis for the decision. The arguments in favor of jurisdiction were strong. So were the ones on the other side. The court just wasn't interested in having the case go forward, so it chose.Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-86355086311586598922011-01-14T10:15:03.132-05:002011-01-14T10:15:03.132-05:00Grits, New Hampshire has. State of New Hampshire v...Grits, New Hampshire has. State of New Hampshire v. Johnson, 595 A.2d 498 (N.H. 1991). The statute at the time precluded the death penalty if a defendant pled guilty, which was clearly unconstitutional, so before trial the trial judge declared the death penalty law unconstitutional and barred its use. The prosecution did an interlocutory appeal and the New Hampshire Supreme Court agreed with the trial court. <br /><br />There may be other states that did this as well. I don't think it is as unusual as you think it is.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-86827938486229761952011-01-14T08:59:42.845-05:002011-01-14T08:59:42.845-05:00Not in Texas and probably not anywhere else. In fa...Not in Texas and probably not anywhere else. In fairness to the CCA (and fwiw, the judges on that panel likely consider me among their harshest critics), what other state ever declared the death penalty unconstitutional on a pretrial motion? It was sort of a novel gambit to begin with.<br /><br />That said, IANAL. I'm curious if you disagreed with the CCA's legal analysis of a facial vs. "as applied" challenge, or just the outcome?Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.com