March 29 FLORIDA: And justice for all----The flaw in lawmakers' calls to constrict death row appeals was underscored last week when the state Supreme Court granted James Floyd a new trial. Everyone's liberty dies by inches whenever someone is denied a fair trial. So it was a victory for the people, not a defeat, when the Florida Supreme Court granted James Floyd a new trial last week. Floyd, a black man, was caught forging checks that belonged to murder victim Annie Anderson. That, and the word of a jailhouse snitch that he had confessed to killing her, were enough to send him to death row more than 20 years ago. But the state did not disclose to the defense or jury two critical facts that undermine confidence in his conviction. A neighbor told St. Petersburg police she had seen two white men entering Anderson's home and leaving in suspicious haste. The snitch had written to prosecutors offering to barter Floyd's freedom for his own. Floyd might be guilty after all; he seemed to concede it in pleading for mercy at a resentencing hearing 17 years ago. At such a moment, of course, even an innocent man might say anything. Moreover, his original alibi that he had found the checks at a dump was not inconsistent with the possibility that the men the neighbor saw had stolen and discarded them. Police might well have had plausible reasons for not pursuing those men, but the defense was entitled to know about them. It may never be known why there was not timely disclosure of the neighbor's account. Bernie McCabe, who has since become the Pinellas-Pasco state attorney, says such evidence would not be withheld now, and that is good to know. But another troubling question remains: Why didn't Floyd get a new trial immediately after the critical information came to light 11 years ago? Florida law does not open a criminal case file until the conviction has been sustained on direct appeal. So it was 1994 before the lawyers in Floyd's postconviction appeal found the documents through a public records request. It took four more years to get them into court, because the state objected that the appeal had been improperly filed. On seeing what had been withheld from the defense, the attorney general's office should have confessed error and agreed to a new trial. Richard Luce, the circuit judge who had taken over the case, should have granted one. But in 1999 he dismissed the appeal without even hearing evidence on the substance of the neighbor's information. The Supreme Court ruled in 2002 that he should have held a hearing. He complied, but wound up denying a new trial yet again. On March 24, the Supreme Court finally did what Luce should have done six years earlier. This troubling case history points to what the governor and some legislators overlook in their hue and cry to constrict death row appeals. The long delays are often the fault of trial judges who choose to let the Supreme Court take the heat for ordering new trials. This appears to be an inescapable result of the fact that circuit judges still have to worry about potential opponents every six years. There is no ready cure for this, which makes it all the more important that the Legislature not undermine the Supreme Court's authority. (source: Editorial, St. Petersburg Times) USA: Justices May Sidestep Death Row Decision -- A World Court ruling and a surprise order by Bush complicate the cases of 51 Mexican nationals sentenced to die in several states. The Supreme Court said Monday that it might put off a decision on whether 51 Mexican nationals on death row in California, Texas and several other states were entitled to reopen their cases because of a ruling by the International Court of Justice in The Hague. Instead, the justices said the state courts in Texas should take up the matter first to deal with an unusual order by President Bush. One month ago, Bush surprised lawyers on both sides of the dispute by declaring that the state courts must consider whether to give the Mexican defendants new trials or new sentencing hearings. The president said the United States had a duty to "discharge its international obligations" by complying with a clear ruling of the international court. In the Vienna Convention of 1963, U.S. officials agreed that they must be informed when Americans were arrested abroad. The same principle applied to foreign nationals who were arrested and held in the United States. 2 years ago, Mexico sued the United States because it had not been informed when Mexican nationals were arrested, tried and sentenced to death. The suit was brought on behalf of 51 Mexican nationals on death rows in California, Texas, Illinois, Nevada, Ohio, Oregon, Oklahoma, Arizona and Arkansas. The international court, also known as the World Court, ruled for Mexico and said U.S. officials must "review and reconsider" the convictions and sentences of the 51 Mexican nationals. Until Bush's order, it was unclear how - or whether - the United States would abide by the international order. No one had anticipated that Bush would put himself in conflict with Texas state officials in a challenge to the validity of more than a dozen death sentences in the Lone Star State. California has 27 Mexican nationals on death row who could benefit from Bush's order, lawyers said. The surprise order also threw a wrench into the pending proceedings before the Supreme Court in the case of Jose Medellin vs. Doug Dretke, who heads the Texas prison system. The justices already had agreed to decide in this case whether the World Court's ruling gave the Mexican national a right to reopen his case in federal court. But when the issue came up for argument Monday, several justices said it might make more sense to send the dispute back to Texas. "Isn't it true that the Texas proceeding could make this moot?" asked Justice John Paul Stevens. If the Texas courts decided they must follow Bush's order, it would allow the court to "avoid the necessity of deciding a lot of difficult questions." Maybe the case should be "dismissed as improvidently granted," offered Justice Sandra Day O'Connor, an action the court sometimes took to dispose of a case that it regretted having taken up. In this case, what has changed since the court agreed to hear the matter is the position of the U.S. government. If the justices follow the suggestion voiced by Stevens and O'Connor, they may issue an order as early as next week that dismisses the pending case. But that is by no means certain. Chief Justice William H. Rehnquist and Justice Antonin Scalia said they would prefer a clear ruling that said international treaties did not create rights for individuals. Scalia said he did not believe a foreign court's interpretation of an international treaty must be followed by the Supreme Court - even if the president agreed with the foreign court. "Are we bound by that?" he asked. Justice Anthony M. Kennedy picked up on the same point. "Can the president give an interpretation of a treaty that is binding on us?" he asked. "I think that is ultimately for us to decide." If Rehnquist, Scalia and Kennedy form a majority, they could rule that the international treaty does not give inmates a right to reopen their cases in federal court. Even so, that would not dispose of Bush's order in the state courts. (source: Los Angeles Times) ******************* You Picked a Fine Time To Leave Me----President Bush ditches Texas in front of the Supreme Court. Let's start with the obvious: I'm not Dahlia Lithwick. To Dahlia's devotees - and you are legion - who are thinking of me as Kirstie Alley on Cheers, or the subbed-in Luke on the Dukes of Hazzard, well, sorry about that. But think about it this way: It's not as if Slate has killed Dahlia off. She'd just rather not give birth to her new baby in court. So, until she comes back, skinnier if not well-rested, I'll be keeping an eye on her 9 other babies. Jose Medellin's death-penalty appeal is before the justices this morning because he didn't get to make a phone callnot the proverbial call to his lawyer, but to someone who might have been even more helpful: his consulate. When Texas police picked him up for participating in a gang rape of 2 teenage girls, then helping to strangle one of them to death with his shoelace (crimes to which he later confessed), the cops neglected to mention that as a citizen of Mexico, he had a right under the Vienna Convention to let his consulate know he was in trouble. With no consulate around to muck things up, Texas took it upon itself to line up a lawyer for Medellin. A really good one, who during the trial got himself suspended from the bar for ethics violations involving another case, and who didn't tell Medellin about his consulate or the consulate about Medellin. Mexico found out about this case only after he'd been convicted, sentenced to death, and had lost on appeal. At that point, our neighbor to the south decided not to rely only on American justice anymore. Mexico helped Medellin bring another appeal so he could argue he was entitled to a new trial, this time with the help of his consulate. But even before Medellin lost that appeal - both the state and federal courts ruled that it was too late for him to start talking about the Vienna Convention - Mexico also sued the United States before the International Court of Justice on behalf of Medellin and 53 other Mexican nationals who said they'd also been tried and convicted before their consulate knew the first thing about them. Before a panel of ICJ judges that included an American, Mexico won, 14 to 1. As it happens, the United States had a big hand in drafting the Vienna Convention in 1963, along with the "optional protocol" (countries decide whether to sign on to this part separately; 46 have), which gives the ICJ the power to hear disputes arising under the treaty. The idea, presumably, was to make things a little bit safer for Americans who get themselves arrested or detained while traveling abroad. The United States invoked the optional protocol when it sued Iran over the hostage crisis. But that was then and the Bush administration is now, and if there's one thing that doesn't square with this administration's worldview, it's any international tribunal with authority over American affairs. Last month, Condoleezza Rice politely told the United Nations that from now on, the ICJ can get lost. No more optional protocol for the United States. Future gang-rapist murderers who are foreign nationals won't be able to complain about being sent straight to the death chamber. And if Americans arrested abroad have one fewer protection against being left to rot in some godforsaken prison somewhere (anyone else remember Midnight Express?), well, tough. But if you may be out of luck, that doesn't mean Jose Medellin is. The wrinkle in this case is that the Bush administration pulled out of the optional protocol for the future, but it has also conceded that it's not a good idea for the United States to go around bailing on international commitments made by previous administrations (in this case Nixon's). In the name of America's foreign-policy interests, Bush's lawyers in the Justice Department are helping Medellin (even though they entered the case on Texas' side). They want to give him what he's asked for and what the ICJ ordered: review and reconsideration of his case in the Texas courts. This time, the Bush lawyers say, the Texas courts can't bounce Medellin for failing to bring his Vienna Convention claim earlier - because President Bush says they can't. In other words, this case isn't just Texas v. the World Court anymore. It's Texas v. the Executive, plus the World Court. That is good news for Jose Medellin. His only problem now is to get away from the Supreme Court before they can screw things up for him. So, that's what his lawyer, Donald Francis Donavan, tries to do this morning. What Medellin wants is a nice neat little stay - a break in the action while the Texas courts do his appeal over again. At first, the justices seem flummoxed. "Has this court ever said, OK, you can just come back next term?" Sandra Day O'Connor asks. "This is a very unusual request." Donavan acknowledges that it is. His real problem, though, isn't the proceduralists on the court. It's Antonin Scalia, who naturally thinks the ICJ judgment is about as binding on the U.S. courts as yesterday's lunch menu and who doesn't care to have the president tell him otherwise. "Do you think the president could enter into a treaty that provides that the commander in chief could be someone other than the president?" he asks Donovan. The lawyer answers that no treaty can amend the Constitution, which is basically Scalia's point. The Constitution makes American judges the arbiters of American law. No treaty should be allowed to replace them with an international tribunal. "You're talking about a question of U.S. law," he says, referring to the issue of whether Medellin blew his Vienna Convention claim when his first lawyer failed to make it. O'Connor tries to offer a way around Scalia's sovereignty sticking point. Rather than treating the ICJ's ruling for Medellin as binding, she suggests, the court could look at the Vienna Convention itself and decide whether it gives Medellin the right he's asking for. But she doesn't get far. Justice Kennedy picks up where Scalia left off. "Can the president give an interpretation of a treaty that is binding on us?" he asks, chin in hand. This is a really interesting question. It's also a question that most of the other justices seem entirely disinclined to answer. Breyer has been quiet; now he offers his colleagues an exit. "Are you saying that the president's determination is binding, or that we might choose to show deference to the president?" he asks Donovan. Ah, deference. You can feel everyone breathing a bit easier - constitutional crisis averted. The state of Texas, however, isn't ready to let the justices back out. R. Ted Cruz, the state's solicitor general, wants to get rid of Medellin rather than simply putting him on hiatus. "This case may launch a thousand law review articles, but there's a simple statutory basis for resolving it," Cruz says in his opening statement. Simple for him, maybe; pretty technical for the rest of us. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act*, which has been most effective in turning habeas review - the traditional way to challenge a conviction that's been upheld on appeal - into a bunch of dead ends. One of those dead ends in the federal courts of appeal, which can't review a habeas claim on the merits unless that claim is rooted in the Constitution. Cruz's argument is that Medellin's claim on review isn't about the Constitution; it's about the Vienna Convention. Pretty slick. Scalia loves it. There's just one problem: Texas is making this argument for the 1st time before the Supreme Court. Talk about late in the game. O'Connor wants to know if the Supreme Court can just waive the whole AEDPA thing. Kennedy wants to know what Cruz thinks about the president's recommendation that the Texas courts reconsider Medellin's case. Not much. Cruz says that Texas sees "significant constitutional problems with a unilateral executive decision" that in his view displaces the state's criminal laws. Which leads to the odd-bedfellows moment in which Breyer and Ginsburg decide to back the president, in all his great wisdom. "Why doesn't he have the authority to determine what this treaty means under these circumstances?" Breyer asks. "And why isn't Texas bound by that determination?" Ginsburg chimes in to say that it makes perfect sense to send the case back to the Texas courts because they're the ones who made the decisions that the ICJ said needed a 2nd look. In fact, Medellin has already taken himself back to Texas. His lawyers filed a new habeas petition there a few days ago. According to Cruz, the state courts don't know whether to move ahead or to issue a stay, pending the Supreme Court's decision following today's argument. Since none of the justices seem inclined at this stage to do something crazy like decide that an ICJ judgment has binding force in American courts or that the president does or doesn't have the authority to rewrite the rules of procedure, the Texas courts will probably get to hold onto Medellin for the moment. But if they don't grant him a new trial, chances are he'll be back here next year. In the meantime, some lucky professor can start in on those 1,000 law-review articles. (source: Emily Bazelon, The Slate) VIRGINIA: Va.'s appeal rejected in Washington case The U.S. Supreme Court yesterday refused an appeal from the Virginia Attorney General's office stemming from a suit filed by former death-row inmate Earl Washington Jr. Though documents the Virginia State Police wanted kept secret had already been released, the state pressed an appeal anyway, arguing that documents used in criminal investigations need to be kept confidential to protect the investigations. But Eric M. Freedman, one of Washington's lawyers, contended yesterday that "the entire episode was an egregious waste of taxpayer money that would have been much better spent compensating Earl Washington." Washington was sentenced to death for the 1982 rape and murder of a Culpeper woman. He was pardoned after DNA tests in 2000 failed to find any trace of him at the crime scene but turned up the DNA of a convicted rapist. Washington filed a federal civil suit against those who investigated the case and prosecuted him. Last year, U.S. District Court Judge Norman K. Moon ordered 14 state-police documents filed in the case made public. The Richmond Times-Dispatch and other news organizations were among the parties seeking the documents' release. The state appealed to the 4th U.S. Circuit Court of Appeals. The state police argued that the documents were confidential and part of a criminal investigation of the 1982 rape and capital murder. The appeals court upheld Moon's decision to release 10 of the documents and asked Moon to consider the release of the remaining 4 documents. The state appealed the 4th Circuit decision and asked the U.S. Supreme Court for an emergency stay blocking the release of the 10 documents. The justices refused to grant the stay, and the documents were released. (source: Richmond Times-Dispatch) MISSOURI: State Death Chamber Moving To New Prison Missouri's execution chamber, in which state imposed death sentences are carried out, is being moved from the Potosi Prison to the newer prison at Bonne Terre. Since the reinstatement of capital punishment in Missouri, all but one execution has been conducted at the prison in Potosi. The lone exception was held at the now closed Jefferson City Penitentiary. Department of Corrections Spokesman John Fougere says Bonne Terre, which opened in 2003, was built to house executions. He adds the move will be made in time for the next scheduled execution on April 27th. (source: Missourinet)
