"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, June 3, 2016

When a death penalty jury is blocked from full information about applicable law, 2 judges of the U.S. Supreme Court find it appropriate

On May 31, 2016, the U.S. Supreme Court has reversed (with 2 dissenting votes) a death sentence (not conviction) out of Arisona death row inmate Shawn Patrick Lynch because the criminal defendant was not allowed to tell the jurors who were deciding between the two alternatives:

1) the death penalty and
2) life sentence without possibility of parole

that the "without possibility of parole" element of the 2nd option did not exist - that Mr. Lynch was ineligible to parole:

"Under Arizona law, 'parole is available only to individuals who committed a felony before January 1, 1994,' and Lynch committed his crimes in 2001."

In other words, the jurors were not told about the applicable LAW as applied to their deliberations.

It was clear that (1) the state court judge presiding over the death penalty phase violated his duty in not advising the jurors of the state law making the defendant ineligible for parole; and (2) the state prosecutor committed prosecutorial misconduct by pushing to withhold information about applicable law from the jurors, or objecting against the defense introducing that piece of information in any way, even at the final argument.

At stake was the person's life.

And that person had to be given every possibility to introduce at the very least the applicable law - and was denied even that.

As it appears from the texts of Mr. Lynch's court decisions, death penalty cases are decided in Arizona in three stages and decided by two separate juries - 

  1. the stage of guilt
  2. the stage of aggravation and 
  3. the stage of the death penalty - stages # 2 and #3 are decided by a single separate jury from a jury that decides stage # 1

According to the state appellate case (which affirmed the conviction) "[t]he jury found him guilty on all counts, but did not reach a unanimous verdict on premeditated murder." 

That already had to give the prosecution pause not to seek the death penalty.

It didn't.

There was then a hung jury on the aggravation stage:

"[i]n the aggravation phase of the trial, the jury could not agree on whether the murder was committed in expectation of pecuniary gain. See A.R.S. § 13-751(F)(5) (2010). The jury made separate findings that the murder was both especially heinous and cruel, but could not decide whether the murder was also especially depraved. See A.R.S. § 13-751(F)(6). In the penalty phase, the jury could not reach a unanimous verdict."

It is obvious that, as a matter of fairness, the entire conviction under the circumstances had to be tossed and the entire case had to be re-tried.

It did not happen.

Instead, a second "aggravation/death penalty" jury was convened, precluded from knowing the applicable law as to the defendant's ineligibility to parole - and the defendant was condemned to death.

That is what the U.S. Supreme Court reversed - only the sentence of death, not the conviction.

Incredibly, there were 2 dissenters to the reversal: Justices Clarence Thomas and Samuel Alito.

While acknowledging that the U.S. Supreme Court reversed in reliance on its own precedent:

Simmons v. South Carolina, 512 U. S. 154 (1994) providing that "[w]here the State puts the defendant’s future dangerousness in
issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing juryby either argument or instruction—that he is parole ineligible” - that precedent is allegedly wrong and should not be followed.

The state sentencing court obviously disregarded that set precedent.

The dissenting judges claimed that "it is the “sheer depravity of [the defendant’s] crimes, rather than any specific fear for the future, which induced the . . . jury to conclude that the death penalty
was justice,”  and that it was sufficient for the jury to know that, if they do not condemn the defendant to death, the court can then sentence him to life in prison with or without possibility of parole - whether the defendant was or was not eligible for parole.

In other words, the two judges claimed that the issue of parole was not relevant to the issue of life or death in sentencing and that the U.S. Supreme Court should not "micromanage state sentencing procedures".

It is interesting to mention that "Justice" Thomas cited two of his own dissenting opinions in favor of death penalty and one of "Justice" Scalia.

But, at least for now, it appears that the court becomes more convinced that,  before the death penalty is imposed,  at the very least, the death penalty jury should be given correct information about the law.

As to Justice Thomas and Alito - this dissent is the matter of their personal conscience, or rather, lack thereof. 

Basically, Thomas and Alito lamented that state courts were not allowed to disregard a U.S. Supreme Court precedent on point, Simmons v South Carolina, decided in 1994.

So, U.S. Supreme Court cases do not have precedential value, as argued by two justices of the same court?

Do justices Thomas and Alito need to consider retirement?

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