Batson Step 0

Last week, on the orders of a federal judge, the Alameda County, California District Attorney's Office agreed to review its 35 death penalty convictions. The office had been caught red handed discriminating--as a matter of policy--against Black and Jewish jurors. Prosecutor notes confirmed not only that prosecutors singled out Black and Jewish jurors for exclusion, but that the prosecutors came ready with pre-planned, pretextual race-neutral reasons for doing so. 

For literally decades, members of the defense bar had strongly suspected such a practice was underway. Last week, the practice--which is now looking a lot like a policy--was confirmed. 

So what's the clearly established federal law prohibiting this discrimination?  In Batson v. Kentucky, the United States Supreme Court held that the state's use of peremptory strikes on the basis of race violated the Equal Protection Clause. It further held that a defendant whose jury had been chosen by a prosecutor who had done so was entitled to a new trial. So if a prosecutor, years later, provided proof that he had done so, that would surely violate Batson. But, as in life, sure things are rare in law.

There are all manner of interesting things about Batson. For example, Batson is, in some ways, all about allowing one person to assert the rights of another. It is the criminal defendant asserting the rights of the juror. In legal parlance this is "third-party standing." A third party, the defendant, stands in for the juror to assert the rights of the juror to be free from racial discrimination.  

For another example, one of the leading anti-habeas petition decisions, Teague v. Lane, is all about how Batson should not be available as a form a relief to people who were convicted prior to Batson. The problem, so the argument goes, is that so many prosecutors were racist in jury selection that so many convictions would be overturned. The organization leading the charge on that argument is today making arguments about why race-based critiques of the administration of criminal law in this country are somehow denying reality. Of course, that same organization has not yet addressed the racist jury practices in Alameda County. Head, meet sand. 

But I digress. Batson provides one process for detecting and remedying discrimination in jury selection:  where the record during jury selection shows, as pointed out by the defendant, the prosecution may have used race to decide who should and should not be on the jury (Step 1), the prosecution must explain themselves (Step 2). If the explanation is not credible or if the defendant has otherwise proven the prosecution was discriminating on the basis of race, then the prosecution has violated the Fourteenth Amendment's guarantee of equal protection under the law (Step 3).

But what if, hypothetically, a prosecutor was definitely discriminating on the basis of race, religion, or ethnicity, but was doing a good job of hiding it such that it was not obvious based on the record of jury selection? Would that violate the Fourteenth Amendment? 

In other words, suppose the prosecution was striking Black people because they were Black, but the prosecution did a good job of covering that up. Suppose further that, years later, the prosecution admitted that this is exactly what it was doing and even handed over notes demonstrating that it was using race as a proxy. 

From my vantage, this should be a much easier case than the Batson process. There are no inferences required.  The state is clearly violating the Equal Protection Clause. Jurors are being discriminated against on the basis of race. Period.

It should be no defense that the prosecutor was harboring animus in his heart, but not sharing it openly with the world, despite wielding it against those he hated. A racist who is good at keeping it hidden should not be rewarded. 

But we will soon find out what would happen because, I suspect, this hypothetical is also reality, at least in some Alameda County cases. 

The Death Penalty is Political: Florida Edition (Part I)

Perhaps there is no better reminder of just how political the death penalty is than Florida's recent decision to seek death for child rape. But for those hoping for another chapter in the "Ron Desantis Is Using the Death Penalty for Politics," you will be disappointed. The current episode reminds me not of Ron Desantis but of Bill Clinton and Barack Obama. 

Some background on the current moment.The Florida legislature, at the urging of Governor Desantis passed a law that authorized, as a matter of state law, the state to execute a person for the rape of a child. Guess who opposed such laws: people who work with victims of child rape. I was surprised at first to learn this, but their concerns are incredibly reasonable. Proving such crimes are incredibly difficult. The victims are overwhelming sympathetic, but inherently unreliable. It's not that kids lie. It's that they are simply unreliable and uncertain. 

On top of proof problems, there's the issue of who actually commits such crimes. The fear of a stranger attacking a child is huge. As a parent myself, I worry about the same daily. But the reality is that the person most likely to assault a child is someone they know. That means that putting execution on the table dramatically raises the stake of any accusation. Is it worth accusing Uncle X of Y if it means he will die? Kids, their caregivers, and their advocates have all made the calculation that having execution on the table is counterproductive to getting kids out of harms way. 

So have legislatures. Back in 2007, almost nowhere allowed for execution for such a crime. But Louisiana did. And, this is where Barack Obama comes in. During Obama's historic campaign, the United States Supreme Court in Kennedy v. Louisiana noted what an outlier Louisiana was in its execution practices and held that executing a person for the rape of child, as Louisiana allowed, was unconstitutional. 

Then-candidate Obama saw an opportunity. Let me pause for a moment. I am grateful that Barack Obama was our president. In some ways, I don't think we as a nation were ready for or deserved him. He is brilliant. He speaks in paragraphs (essays really) and seems like a kind and empathetic person who is incredibly hard working, thoughtful, and shares many of my own values. I'd love to play basketball with him, e.g. 

But, that same guy, while on the campaign trail, received word that the Supreme Court had held that the Eighth Amendment prohibited executing someone for the rape of a child. Did Professor Obama take the opportunity to explain why this was a sensible decision in light of the law as it existed and in light of the dynamics outlined above? No. He denounced the decision in no uncertain terms, opining that executing a person convicted of raping a child does not violate the constitution. 

Does this person, who also admitted uncertainty on the deterrent value of the death penalty really object to the Court's conclusion that the outlier practice of execution in such circumstances is per se cruel and unusual? I do not know and highly doubt this blog post will prompt a clarification. 

But his position was reminiscent of the democrat preceding him as president: William Jefferson Clinton. When then-Governor Clinton was campaigning for president, he hailed from the Arkansas Governor's mansion, a domicile now occupied by Sarah Huckabee Sanders. As he campaigned, he no doubt had on his mind the experience of Michael Dukakis, whose cerebral response to questions about capital punishment arguably doomed his candidacy for president. 

Clinton would not make the same mistake. While on the campaign trail, the case of Ricky Ray Rector reached Clinton's desk. Rector was profoundly impaired. After concededly committing a terrible crime, Rector tried to kill himself, firing a gun into his own head. He failed to take his own life, but was profoundly impaired as a result. 

On the night of his execution, Mr. Rector was provided the last meal of his choosing. As part of the meal, he requested pecan pie. As he was finishing the main course, he told the guards that he'd like to save the pie "for later." They did not explain to him, and apparently he did not grasp, that there would be no "later." The pie was thrown out after he was executed.

Clinton could have let the entire episode unfold without his presence. Or he could have stopped the execution altogether. But he chose a third way: returning from the campaign trail to Arkansas to oversee the execution. By all accounts, that choice cemented his reputation as a tough guy, someone willing to kill. 

With Clinton and Obama, it's hard to see either decision as principled in any way. Louisiana was an outlier, and Obama doubted the practical import of the death penalty. Clinton, the Rhodes scholar, was no fool, and surely knew that Rector need not be executed to do justice. But both men, now icons on the left, chose politics over principle.

Which brings me back to Florida. Desantis, a Yale grad like Clinton, knows that Florida's law is unconstitutional. It's not that he does not care. It's that he knows that railing against child rape is a good headline, even if the on-the-ground realities are far more complex and even if the law he endorsed is plainly unconstitutional. And, to be clear, I don't think it's even that Desantis proposed the law as some test to overturn Kennedy v. Louisiana. I think that like Clinton and Obama, he's using the death penalty to burnish his own reputation, regardless of who suffers as a result. 

SOC, the DP, and Habeas Corpus

I was in law school when Justice O'Connor announced her retirement. In an only-in-law-school moment, a student group put on a mock confirmation hearing and one of my classmates volunteered to read up on and mimic her proffered replacement: then-Judge Sam Alito. I remember little about the exercise beyond thinking, even then, that the undertaking was audacious for a twenty-two-year-old. 

Justice O'Connor's tenure on the Court entirely preceded my time as a lawyer. But I very much have grappled with her jurisprudence on capital punishment. And her passing ultimately affected the adjudication of one of my pending cases at the Court.

In Tison v. Arizona, Justice O'Connor all but overruled Enmund v. Florida, which had excluded from execution those guilty of felony murder. In Justice O'Connor's view, if a person was a major participant in the felony and had acted with a reckless disregard for human life, then that person could face death, even if they did not intend to kill. Tison thus greatly limited the reach of Edmund and made many death-eligible who would not otherwise be. 

When I teach Tison, I always get deep into the facts of the case because they are so bad. The murders (plural) were brutal and on the heels of a prison escape, in which the defendants had managed to smuggle a cooler full of guns into a high security facility. Among many others, I end up positing a couple of questions to my students: (1) given how heartless the murders were, why didn't the state just charge intentional murder and (2) is this a prime example of bad facts making bad law? As I see it, Tison represents a retrenchment from the Supreme Court's willingness to insistent on a robust and doctrinally consistent approach to the administration of the death penalty. 

As part of my Tison discussion, I also urge my students to listen to a young Alan Dershowitz arguing the case on behalf of the condemned. (Available here.) My students largely think of Dershowitz as a pro-Trump Fox News personality, so I enjoy making them think more broadly about who people are and can be. 

But to return to Justice O'Connor's work, I'll mention two other of her cases which loom large in my own practice: Teague v. Lane and Penry v. Lynaugh. In Teague, the Court had to decide whether its holding in Batson v. Kentucky that the state's decision to eliminate jurors for racist reasons could serve as the basis to attack convictions that were on the books prior to Batson being decided. Prior to Teague, the rule was basically that "important" protections would be applied to final convictions. 

I don't know what motivated Justice O'Connor, but many think of her as a pragmatist, and I imagine issuing a ruling that Batson was not "important" was unappetizing. I also imagine the conservative pragmatist was not inclined to delve into jury selection practices in every single existing conviction. So, rather than denigrating Batson outright, she--and the Court--adopted a formalistic approach to when new decisions would apply to final convictions. That approach, as articulated in Teague, would be the beginning of another retrenchment, this time on the federal courts' role in enforcing constitutional rights in state criminal proceedings (i.e. habeas corpus). To be sure, the current Court has taken the ball and run with it, but O'Connor started laying the groundwork in Teague. 

Penry has played a smaller role in my own practice, but has been an object lesson in both perseverance and resistance. On the same day that the Court held it was constitutional to execute juveniles, it held, in Penry  that it was constitutional to executed the intellectually disabled. Fifteen years later, the Court would have disavowed both decisions. But it was a bad day in 1989 for the intellectually disabled facing execution when Justice O'Connor issued her decision in Penry. 

The later disavowal of Penry, in the landmark decision of Atkins v. Virginia, is only one of a few lessons about perseverance from the case. The other major holding in Penry is that Texas's capital sentencing scheme failed to give effect to intellectual disability in weighing whether death was the appropriate sentence. That question would come before the Supreme Court again and again. It took repeated intervention by the Supreme Court because the State of Texas and the lower state and federal courts failed to abide by the narrow protections Justice O'Connor demanded in her majority opinion. 

Unfortunately, similar acts of resistance still plague capital punishment. Arizona refused to apply a 1994 case until the Supreme Court insisted it do so in 2016. And even then, the state invented procedural barriers to review so unpredictable that the Supreme Court this year held those barriers could not stand in the way of reviewing whether the 1994 precedent was violated. So the Penry-type resistance lives on.

With Justice O'Connor's passing, I decided to review the cases occupying her final days as a Justice. And in one instance after another, she confronted requests to halt executions. Largely she denied those requests, along with her other colleagues on the Court. But in at least one instance, she stopped an execution. With that vote, she set the briefing schedule for the case that now provides the standard for whether stays of execution should be granted. 

Which brings me to how her passing affected my own practice.  As I've already blogged about, the Supreme Court last May halted one of my client's execution date. The case has been pending at the Supreme Court ever since. He will get a decision immediately following one of the Supreme Court's conferences, probably on the Monday immediately following the Court's conference. 

The Court was scheduled to meet this last Friday, December 1 to, among many other things, discuss his case. But with Justice O'Connor's passing, the Court cancelled conference. So our case was rescheduled for the Court's next conference on December 8. 

Even in her passing Justice O'Connor's legacy lives on in capital cases. 

Ctrl + C, Ctrl + V

 I learned tonight that a former client of mine is another step closer to execution. The legal issues are complex, but what is wrong with his death sentence is not: he is quite mentally ill, and his crime was the culmination of years of physical abuse and exploitation by his parents. 

When I first met my client, I had the uneasy sense that he would be executed and that I would be shaken to my core by his execution. Mercifully, over a decade later, he lives. But my worry lives on. 

The ruling in this case came down to whether being a lawyer requires more than copying and pasting someone else's work. The federal appeal's court said that doing so is enough to count as providing counsel, at least in a death penalty case in federal habeas corpus. If my law students did that, they'd be in big trouble. Same goes for my kids. But in the Fourth Circuit, belated discovery of a copy and paste job does not warrant a second look. 

The legal issue came down to whether incredibly shabby representation--in this case copying verbatim pleadings that do not include the relevant legal arguments--amount to abandoning a client. The answer was no, in part because although the representation as "poor," there was still representation. But there's more (and it gets worse): The court held that no matter how bad the representation was, the substance of the outcome it produced could not be reconsidered. The value of excellent representation where the stakes are highest appears to be ... very little, at least in the eyes of this court. 

And lest you think this is a bunch of complaining about the process, there were real issues that competent representation would have put before the court. Two judges on the South Carolina Supreme Court dissented from his death sentence on two separate grounds. That suggests to me that at least some reasonable jurists might disagree that his death sentence passed constitutional muster. 

All-in-all, the result in this case reminds me of the classic law review article, "Counsel for the Poor: Sentenced to Death Not for the Worst Crime, but for the Worst Lawyer." Notwithstanding the high stakes of death penalty representation his counsel got a pass.

With this ruling, my client's avenues for a reprieve have further narrowed. Maybe the full federal appeal's court will hear his case. Maybe the United States Supreme Court will. Maybe there will be an act of mercy from the governor of the state. But none of these outcomes are foreordained or even likely. I worry for him.

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Doing Justice

Judges often defer to the State because their obligation is supposed to be to do justice. After all, in 1935, the Supreme Court summed a prosecutor's duty this way, "in a criminal prosecution [it] is not that it shall win a case, but that justice shall be done." That same obligation extends to not engaging in "methods calculated to produce a wrongful conviction."

So when courts are looking at a case, they are inclined to defer to the party whose duty is to "do justice," as opposed to advocate for an individual and the interests of the individual. Side note: In most states the appeal is handled by the Office of the Attorney General, rather than the prosecutor's office, that handles appeals and other challenges to convictions. 

In practice, I've been surprised by what "doing justice" means. For example, a Phoenix prosecutor, Juan Martinez, was found to have committed misconduct in case after case after case after case after case. And yet, over and over again, the state defended his actions. This includes defending him and his actions up until he was disbarred and despite having been found to committed misconduct in cases with the highest stakes. Taxpayers of Arizona, Demand more!!

In another instance, I've had the state agree that our evidence, if proven, establishes my client is not eligible for execution in light of his intellectual disability. Imagine my surprise, then, when the State also said my client should be executed! This was because--so said the State--he could could have raised the claim sooner. So, to summarize, doing justice means killing an intellectually disabled person because his trial counsel didn't develop the claims sooner. This client remains on death row. 

It would be too easy to say that my opposing counsel are simply committed to defending convictions--no matter what else justice may require--than in "doing justice."  But I think reality is more complicated than that. 

I think we are all committed to thinking of ourselves as being in the side of right. For my part, I believe that rendering a person helpless and then killing them is wrong. But I also understand that (1) what I think is "wrong" is not relevant to what is lawful and (2) my opposing counsel (or the trial prosecutor or the judge or a juror) is just as likely to have a very different perspective. 

So, as I undertake any effort to call out someone for some misdeed, I try to check myself. First and foremost, I make sure I have the facts right. But then I interrogate whether my inferences based on those facts is fair. And sometimes I have to dial it back. I find first drafts are well-known for being overheated. And overstating my case will be harmful to my client: instead of the case being about some zealous overreach, it could become about my own overstatements. 

So, as I ask the courts to do justice, I try to do so with humility and a recognition that we are all prone to  believe God is on our side, rather than to hope we are the side of God.  

That being said, I am also not one to pull punches. Sugar coating reality does my clients no favors. Their reality is having to overcome many presumptions against them, including unstated presumptions about deference to the state. So being unwilling to call out a misdeed for what it is does not advance my clients' cause. I am just careful to do so in ways that reflect the care, attention, and, ultimately, I hope, the humility necessary to convey the seriousness of their predicament.  

Gratitude/Teamwork Makes the (Legal) Dreamwork

As a kid, I was not a fan to "group work." I felt the real effort got pushed to one or two members of the group. Other times it seemed the ideas of the loudest person in the group bulldozed over others' to make their vision a reality.  Still another unhappy element of group work was the slackers (although query whether they were slacking or just got bulldozed). 

However, the longer I've practiced law, the more I've come to appreciate that effective advocacy demands collaboration. When you are building a record, this is relatively obvious: you need witnesses to give you information. When you assemble and mangage a team of experts and other professionals, some interpersonal skills are required. 

Where this may be less obvious is appeals. After all, isn't that enterprise just about the genius of the appellate advocate who can construct the right narrative and frame the issues in the right way? Nope. 

Those are the core competencies, to be sure. Without having some ability to convey a narrative built around a winning issue, convincing an appellate court to toss aside the judgment of twelve jurors, the trial judge, and, depending where you are in the process, many more other judges just will not happen.

But, to be successful, a good deal more is often required. Take the Supreme Court of the United States (SCOTUS) as an example. As an empirical matter, a case is roughly ten times as likely to obtain SCOTUS  review if there are three or more amicus briefs in support. From SCOTUS's perspective, the multiple briefs likely mean the issue is important. That is, after all, the core reason the Court elects to take a case. 

But from an advocate's perspective, getting three or more separate briefs in support of a petition means convincing three or more groups of attorneys and/or interest groups of the worthiness of your cause. And that takes...collaboration, even group work. You have to understand what motivates interest groups and advocates. And along the way you better be a good partner, especially if you hope to collaborate again on other cases. 

However, law, like many professions, does not usually celebrate collaboration. The "top" lists and most legal awards are about individuals, not collaborators. This reflects the dominate narrative not only of the legal profession, but of much of our culture. But it is my strong belief that none of my successes, modest though they may be, would be possible absent the involvement of many, many collaborators. 

This Thanksgiving, I hope we can all take a moment to express our gratitude for our collaborators. 

Spatchcocking/Thanksgiving Minimalism

Quick post today: for Thanksgiving this year, I'm forgoing the Rockwellian presentation of a whole bird. Instead, I'm going to remove the turkey's spine before roasting and lay it flat on the roasting pan. This technique is called spatchcocking. 

I like it for several reasons. First, it reduces roasting time because there's surface area exposed to the heat of the oven. It also makes for a more evenly cooked bird for the same reason it speeds up cooking: the bird is more uniformly heated. 

Although removing the spine is an extra step, the overall time and heartache saved is well worth the effort.  There's a slight tradeoff on the aesthetic, but again, I think it is worth it, especially since I'll have three sous chefs under age 10. 

Which brings me to minimalism. This year, I'm very happily leaning on our guests to bring stuff. I'm just making turkey, gravy, and cranberry sauce. My guests are excited to participate, and it means less work for me. :) 

I love cooking and the efforts going into prep are part of the anticipation and fun. But, at least in this phase of life, I'm trying a less-is-more approach that allows for a bit more time to participate in making decorations with my kids. It makes clean up easier and allows me to focus on doing a bit better with the little bit of cooking I am doing. Minimalism on a maximalist holiday, including on my approach to the bird, has its benefits. 

Waiting Is Not Easy!

One of my toddler's favorite books is Mo Willems' Waiting Is Not Easy. The book brilliantly builds to a big surprise, with one of the two characters increasingly unable to wait for it. Even my two-year-old can feel it. I strongly recommend it in full.

I've been reminded of Waiting Is Not Easy every day the Supreme Court of the United States (SCOTUS) issues its orders since Friday, May 5, 2023. On May 5, the Supreme Court paused, or "stayed," our client's execution, which was then scheduled for May 18, 2023. Here's the full text of the order halting Richard Glossip's execution:

Application (22A941 for stay of execution of sentence death presented to Justice Kavanaugh and by him referred to the Court is granted pending the disposition of the petitions for writs of certiorari, Nos. 22-6500 and 22-7466. Should both petitions for writs of certiorari be denied, this stay shall terminate automatically. In the event either petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court. Justice Gorsuch took no[] part in the consideration or decision of this application. 

SCOTUS issues its decision on a schedule, sort of. When the Court is in session, it meets on Fridays. The Justices gather without their clerks and decide which cases to hear. This is called their "conference." Anyone can check out when the Court's conferences are on its website. On its website, the Court also notes when it will issue orders, usually the Monday following its conference. But the Court does not advertise that it also often issues orders granting review on the same day as its conference. 

Yaaaaaawn. Why care about when nine justices announce their plans? Because my client's life depends on it. 

Richard Glossip has maintained his innocence for two-and-a-half decades. He has had nine execution dates. He has had what he thought was his last meal three times. In May, he thought he was saying goodbye to those closest with him when the Court issued the above order. 

The Court's May 5 order was on the heels of a request to pause the case while the Court considered claims that Rich's trial was unfair because the prosecution knew its key witness was lying. Rich's case is incredibly troubling, but here I want to focus on the SCOTUS process.

Each Friday, as Rich's lawyer, I am reduced to pressing "refresh" on the Court's website to see if it has granted review. And then each Monday at 6:30 a.m. PT (when the Court releases its orders), I do the same thing. Waiting for the page to load is excruciating. Will the Court save his life? Will they side-step the major issues in his case? 

No one feels sorry for lawyers. Except maybe for other lawyers and their loved ones. And this is not really an effort to engender you personal sympathy. But I do think the insanity of this particular aspect of the death penalty speaks to its cruelty. If I'm freaking out, how must my clients feel?

On more than a few occasions, I've been involved in last-minute litigation challenging a conviction or death sentence while a client faces imminent execution. I'm sorry to say that very often the outcome of that process occurs over a relatively short period of time. Handling a case while facing an execution date is rightly referred to as related to an "emergency," and it is handled at a pace you might expect. 

Only twice have I been in a position of waiting for months on end after a court has stopped an execution at the last minute. For Rich Glossip, the wait is all about whether an innocent person will be executed. 

What will SCOTUS say? Will they or won't they? If we lose, Rich will likely face imminent execution. If we win, he may go home in time for Christmas. Refresh. Refresh. Refresh. 

I'll look again tomorrow morning. And if there's no news, I'll check the calendar and prepare to refresh again. 

Nov. 20 UPDATE: The Court again did not act on our petitions. The next conference is on December 1. 

Welcome to New-wark!

I coach my third grade daughter's basketball team. I signed up in an effort to spark her interest in a sport I've played and loved for a long time. It's her first sports team (her prior run in a theatre troupe doesn't count. Sorry, theatre nerds!) and, other than a short foray into very non-competitive soccer, her only ball sport.  

Having never taught a group of third graders much of anything I am clueless and very grateful to both YouTube and the other coaches in the league who have offered pointers. 

In an effort to pander to the interests of my daughter and her teammates, I came up with what I thought was the brilliant idea of playing music while they practiced. Certain drills would get certain songs. For example, when we practice the weave (commonly and sexistly known as the "three-man weave"), I blast "All the Single Ladies." (I had originally chosen "Formation," but even the radio version was too explicit for our third-grade practice, imho.) 

We also play lots of Taylor Swift. 

As the kids roll into practice, I usually have 1989 playing. For the uninitiated, the first song is "Welcome to New York." One of my favorite lyrics from that song is, "Everybody here was someone else before." The hope and optimism and ambition and the everything of that lyric gets me every time. 

I also, at times can't help but turn it into something of a dad joke. In the car, I'll insist on singing "Welcome to New-wark!" instead of TS's elegant formulation. For me, the joke is that for all of NYC's promise, after your questing there, you are pretty likely to land in a NJ suburb. Which, as a suburbanite myself, I have to admit is not so bad. 

Explaining to my third grader the hilarity of my version of "Welcome to New York" is complicated. And playing loud music during our practice has proven to be too much of distraction. But I heartily endorse having hype music at the beginning of practice. And Taylor Swift and Beyonce are great starting points. 

Welcome to New York

Walkin' through a crowd, the village is aglow
Kaleidoscope of loud heartbeats under coats
Everybody here wanted somethin' more
Searchin' for a sound we hadn't heard before
And it said

Welcome to New York, it's been waitin' for you
Welcome to New York, welcome to New York
Welcome to New York, it's been waitin' for you
Welcome to New York, welcome to New York
It's a new soundtrack, I could dance to this beat, beat forevermore
The lights are so bright, but they never blind me, me
Welcome to New York, it's been waitin' for you
Welcome to New York, welcome to New York

When we first dropped our bags on apartment floors
Took our broken hearts, put them in a drawer
Everybody here was someone else before
And you can want who you want

Boys and boys and girls and girls ...

Standing Standards

Yesterday, one of my clients received very good news: a state s court ruled that his death sentence had to be set aside because the jury was misled about what sentence he could receive. I was--and am--thrilled. It was an order a decade in the making. It takes my client off of death row (for now) and may ultimately save his life. 

But the order included a surprising wrinkle: the court concluded that deciding whether my client could again be sentenced to death would not benefit him in any way. We had argued he was not eligible for a death sentence. But the court declined to address that question. 

And yet the court's order was for a new resentencing proceeding and the court noted he could again face a death sentence. For my money, not being eligible for a death sentence would be a benefit, particularly if the state has tried to kill you once before. So what gives? 

The court thought my client no longer had standing. 

Standing: Whether a dispute can be resolved by a court is generally referred to as its "justiciability." A dispute is justiciable if the court has the power to decide it. In federal court, one limit on justiciability is a requirement that the court's decision will have a real world effect. If a party will be affected by the decision, they do not have "standing" to bring seek a decision from the court. So, if deciding the fight won't have any real-world impact, then the federal courts stay out of it. In federal court, this limit is based on the constitution's requirement that courts only address "cases and controversies." 

State courts aren't limited in the same way. Nothing in the federal constitution keeps them from issuing an opinion even if there is no real world effect, something called an "advisory opinion." Plenty of states, including where my client still faces potential execution, allow for advisory opinions, particularly when there is some substantial chance the opinion could affect the parties in the future. (There is a related federal doctrine for issues likely to recur, but evading review.)

In state and federal court, being able to obtain additional forms of relief means there is a live case and controversy. If the car dealer has an order for back payments, that doesn't mean his effort to repossess the car would no longer affect things in the real world. There's still a remedy out there, so there's still a "case and controversy." 

And so goes for being eligible for another death sentence. Or so a I thought. 

Moot Point: One of the main reasons for concluding a person lacks standing is because the case has become "moot." Here "moot" means the same thing as in the phrase "moot point": it's otherwise been resolved. So when the court yesterday said that the order setting aside the death sentence made my client's eligibility for a death sentence agin in the future was "moot," the court meant the question no longer mattered. 

From the outside, I can see how the court's take has some intuitive appeal: there's no longer a death sentence, so it follows that there is no real world effect from addressing whether my client could be sentenced to death. 

But this decision is problematic for several reasons. First, there is a real world effect. The state can again try to kill my client! If the court had addressed the eligibility question, that would not be the case. 

Second, other decisions recognize that under very similar circumstances a case is not moot. And court's are bound to follow precedent, so the order here seems out of step with that norm. 

Third, we aren't even in federal court. It was a state court and in a state that has not adopted the federal standing requirement. The court even acknowledged as much, but it said it was using its discretion to decline to do so. 

What Gives?: So, if I'm so right, why didn't the court agree? I don't know. 

But my guess is fatigue. As I mentioned, my involvement in the case has spanned a decade, mostly in front of this same judge. We've had lots of briefing and lengthy oral arguments. And I think the judge feels like he gave my client relief, and that should be enough. 

I don't think the judge even disagrees with much of anything I briefed on justiciability and mootness. I just think the years of litigation and reams of legal documents in front of the court made the judge biased. Not biased towards or against my client. Just biased towards resolution and towards wrapping up the case. I think the judge was tired, had granted some relief, and was just done. 

Unfortunately for my client, he is not done. The state may, and likely will, again try to kill him. And I will continue to press our case for his not being eligible for a death sentence and failing that, for a life sentence in recognition of his value as a human being. 

Blogging Like It's 2005

When I registered for this blog, I was wrapping up a gap year between undergrad and law school. It was 2005. And blogs were...more of a thing. I never did much with it, but I'm grateful to my former self for registering it. Thanks, 2005 John!

I hope blogs still have a role to play. They are more in-depth than most other hot takes lurking out here as we all cruise along the information superhighway. 

This space is to explore mostly my professional interests--which revolve around challenging extreme punishments in post-conviction proceedings, legal scholarship, and working with the next generation of advocates. I'll discuss these topics in some depth, with the hope that those otherwise unfamiliar with habeas corpus, certiorari, or Latin in general might understand and, at times, even enjoy checking it out.

Wait! Don't leave! Although these are weighty topics, I will aim to take them on with humor and humility. 

I'll also occasionally explore more personal interests, like cycling, coaching my daughter's basketball team, learning cello in my 40s, cooking, and the weirdness of living in Berkeley.

A little bit more about me: I represent persons across the country facing either execution or death in prison, something I've been up to since graduating from law school. I co-founded an organization that specializes in that sort of work, and I also teach law school classes and draft scholarship on such subjects. I have had clients go home and I've had clients executed. It's my aspiration to insist on the inherent dignity of my clients. More to come!