Archive for the ‘judicial’ Category


U.S. Supreme Court Delays Execution

Scott — March 25, 2010 @ 12:47 AM — Comments (0)

Early Wednesday evening, the United Stated Supreme Court issued an order delaying the execution of Henry W. Skinner, a death row inmate in Texas pending a decision on Skinner’s Petition for Certiorari. The execution will be delayed at least until the Court decides his Petition stemming from his pursuit of a federal civil rights claim which asserts he was denied a chance to obtain DNA testing of evidence to prove his innocence of a triple murder for which he was convicted more than 16 years ago. His execution was originally scheduled for Wednesday at 6:00 p.m. EST.

According to the website SCOTUSblog:

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6).  The Court decided the Osborne case on June 18, but left unresolved that specific issue.  The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge.  Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.

Read the full story and find the link to the Court’s order HERE.

Constitution, judicial, , ,


8th Circuit Court of Appeals Rejoins Humanity and Condemns Shackling Of Pregnant Prisoners In Labor

Scott — October 14, 2009 @ 2:55 PM — Comments (0)

I’m not sure if this has been posted here yet, but its been all over the web recently.  Earlier this month, in a 6-5 decision, an en banc 8th Circuit  Court of Appeals overturned last year’s decision by a three judge panel for the Circuit and held that constitutional protections against shackling pregnant women during labor had been clearly established by decisions of the Supreme Court and the lower courts. The full decision is available HERE.

The Americn Civil Liberties Union, which represented the prisoner who brought the complaint, recently issued a Press Release describing the facts of the case as follows:

[Shawanna] Nelson was a 29-year-old non-violent offender who was six months pregnant with her second child when she was incarcerated by the Arkansas Department of Corrections (ADOC) in June 2003. Three months later, after going into labor, she was taken to a local hospital where correctional officers shackled her legs to opposite sides of the bed. Nelson remained shackled to the bed for several hours of labor until she was finally taken to the delivery room.

The shackles caused Nelson cramps and intense pain, as she could not adjust her position during contractions. She was unshackled during delivery, but was immediately re-shackled after the birth of her son. After childbirth, the use of shackles caused her to soil the sheets of her bed because she could not be unshackled quickly enough to get to a bathroom.

Elizabeth Alexander, Director of the American Civil Liberties Union’s National Prison Project, hailed the victory:

This is a historic decision by a U.S. Court of Appeals that affirms the dignity of all women and mothers in America…Correctional officials across the country are now on notice that they can no longer engage in this widespread practice.

The fact that this case was such a close split boggles my mind. Then again, there were additional questions in the case relating to qualified immunity of correctional officers that don’t necessarily pertain to the question of whether the federal constitution provides protections for the prisoner in this context.

Until relatively recently, I was unaware of the practice of shackling pregnant women in labor immediately before and after delivery. In fact, I never would have imagined that such a practice existed. This summer Mr. David Mack brought to my attention that this was the practice of our own state of Florida until somewhat recently. I am seldom shocked or surprised by the indignity humans inflict on one another, but this is one of the most inhuman practices I have ever heard of. Lets hope we reach a day soon where this practice is a relic of a cruel past of which we are all ashamed.

Uncategorized, judicial, prison,


Florida to adopt all-digital courthouses

Lenore — October 06, 2009 @ 2:25 PM — Comments (0)

The Florida Supreme Court is moving toward making court records globally accessible through the Internet, according to this article from the Orlando Sentinel. More than likely, court clerks look forward to these changes because they will be able to focus on their work without the added assignment of gathering all the records requested of them.

“It’s a cost savings to the public,” said Marion County Court Clerk David Ellspermann, who served on a court-created committee that spent the last two years researching and drafting the proposed new rules. “If you’re not at my courthouse interrupting my staff, then I get more work done.”

But outside of that, is this really a good thing? I think it could have both positive and negative results.

We’ll start with the obvious pro: court records will be easily accessible. For the people who really need those records, like IPF, this is good news. As the article states, “traditionally, everything in a paper court file was available to the public unless it was ordered sealed by a judge.” However, we know that actually getting those records wasn’t always the easiest. Even if they were public it takes a long time and a lot of persistence, probably due to the court clerks’ other work as stated above. If they were all on the Internet there would be no need for a middle man and the requester can instantly access anything they need. The new system would truly make those records public.

But how public is too public? The biggest con is the issue of privacy. Sometimes those records contain personal information that shouldn’t be put in the hands of just anyone (such as identity thieves) who would use it in a harmful way. You can’t take that information back. Once something is on the Internet it’s out of your hands. That information is forever accessible through archives or whatever means, and anyone can do what they wish with that information once they have it. As my information science teacher says “if I sell you a pig, you have a pig and I have nothing. But if I pass on knowledge, now you and I both have that knowledge.”

I think we should seriously consider the methods in which we surrender these court reports. Perhaps you need a membership that verifies your identity in order to access them, or maybe filter out personal information from what’s posted on the web. I definitely wouldn’t rush into anything.

judicial,


Taking a look at Sotomayor on crime

Ryan — July 08, 2009 @ 10:58 AM — Comments (0)

We have been relatively silent with regards to Sonia Sotomayor and her nomination to the Supreme Court to fill Justice David Souter’s seat. (Sotomayor’s confirmation hearings begin this Monday, July 13.)

There has been much attention paid to Sotomayor’s rulings on some issues – especially in light of the recent Ricci ruling from the Supreme Court, which overturned a panel judgment rendered by Sotomayor and two others – but less to her stances on crime. Allow me to break that silence by pulling from a few news items and analyses.

There seems to be a consensus forming around the idea that Sotomayor is a “thoughtful, experienced moderate,” as Matt Kelley says over at Change.

Yesterday morning’s All Things Considered segment on NPR concluded,

Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench. Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.

Matt also notes that Sotomayor rules in favor of the defendant in more than the average federal judge (7.41% of the time versus 6.28%), has indicated support for restoring felon voting rights, and laments that, while she opposes the death penalty personally, it is “not up to her” to change it from the bench.

The New York Times analyzes that last case, which it says is the only death penalty case Sotomayor has dealt with.

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

Finally, McClatchy newspapers says Sotomayor is “far from soft on crime,” which should force any rhetorician charging the opposite to put their foot in their mouth. There has been a lot of ink spilled over Obama’s introduction of Sotomayor as his nominee in which he lauded her “empathy” on the bench. (In fact, that is one of the tiny handful of words that opponents have been forced to cling to, unable to otherwise find anything legitimately damning.)

Says McClatchy, however,

While tilting liberal in some areas, Sotomayor’s five years in the Manhattan district attorney’s office and 17 years on the federal bench appear to place her near the center in criminal law matters.

Good luck to Sonia in her upcoming hearings.

judicial, , ,


Death penalty now officially off the books in New Mexico

Ryan — July 02, 2009 @ 9:52 AM — Comments (1)

A miniature news bite for today, more of a reminder: New Mexico’s abolition of the death penalty took effect yesterday, July 1, 2009. Since yesterday, prosecutors have not been able to seek the death sentence in new indictments.

(The errata reads that they can still seek the death penalty in indictments opened before July 1, and there are at least two of those, and there are two people on death row whose sentences will not be commuted.)

judicial, justice, , ,


Obtaining DNA testing in PA may become easier

Lenore — June 30, 2009 @ 1:05 PM — Comments (0)

Today, the Pittsburgh Tribune-Review posted an article about DNA testing in Pennsylvania stating lawmakers have been pressured to give inmates better access to DNA testing that could prove their innocence.

PA exonerees also agree that obtaining the genetic testing that led to their freedom was extremely difficult.

“It’s hard to get DNA testing in Pennsylvania. Nobody wants to admit they’re wrong,” said Drew Whitley, 53, formerly of West Mifflin, who served 17 years in prison for murder before a DNA test cleared him. “Even afterwards (the government) still has something to say. They never want to admit they’re wrong.

“Who wouldn’t want to prove if you got the right man? It’s a damn shame I spent that much time in jail. I would still be in jail without DNA testing.”

Meanwhile…

Just because DNA is absent on a piece of evidence doesn’t mean the convict did not commit the crime, opponents say.

Not only can DNA testing show the absence of a suspect’s DNA, but also the presence of another’s. The current state law leaves it to the judge to determine whether DNA testing should be granted, but the number of cases that are denied testing greatly outweigh those that have been granted. Among the cases refused testing is Anthony Wright – whose confession and blood-stained clothing were the reasons for his denial, both types of evidence which have proved unreliable in past DNA tested cases.

Hopefully, PA will see some helpful changes in these laws soon.

judicial, justice, legislation, ,


Study on Prosecutorial Biases

Lenore — June 25, 2009 @ 11:09 AM — Comments (0)

An interesting new paper on prosecutorial biases, misconduct, and accountability has just surfaced and deserves some attention.

“A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making” was written by Barbara O’Brien of Michigan State University Law School. She uses social science experiments to prove her hypothesis that prosecutors’ institutional environment disables their ability to “play fair.”

Proof that prosecutors can’t help but misbehave – who would’ve thought!

Science, judicial, justice,


Deep Thought

Seth — June 19, 2009 @ 3:14 PM — Comments (0)

When the talkingheads complain about court nominees having empathy, they must really be complaining about all those unreasonable and unqualified nominees who don’t think we should incarcerate the innocent.

judicial, , , ,


Osborne Roundup

Ryan — June 19, 2009 @ 10:29 AM — Comments (0)

The Supreme Court’s ruling in Osborne is the biggest news of the last few days and has been covered left and right. Here is a list of other outlets that have chimed in:

The New York Times: Editorial: Unparalleled and Denied.

The Los Angeles Times: Supreme Court rules DNA tests for prisoners not a constitutional right.

The Washington Post: Court Limits Access to DNA Evidence: Justices Rule That Inmates Lack Constitutional Right to Testing

The Christian Science Monitor: What impact will Supreme Court decision on DNA evidence have?

The Associated Press: Court finds convicts have no right to test DNA

Reason: Supreme Court Says No Right to Post-Conviction DNA Testing

SCOTUSblog: Analysis: Handing off the DNA issue

Change.org: The Supreme Court Denies The Right to DNA Testing

The Innocence Project in New York: A Disappointing Decision and a Renewed Call for Reform

Constitution, judicial, post-conviction, , ,


Some Thoughts on Osborne

Seth — June 19, 2009 @ 9:27 AM — Comments (0)

I was about to walk into a prison for a legal visit yesterday when Ryan texted me the news that the Supreme Court of the United States overturned the 9th Circuit and held in Osborne that inmates do not have a constitutional right to postconviction access to DNA testing.

Certainly this is a disappointing decision on a number of levels:

1.  As demonstrated in so many cases as of late, the very existence of constitutional rights is generally in the hands of one Supreme Court Justice and this could just as easily have tipped the other way if the the makeup of the court was slightly different.  This notion is proof positive that our constitutional rights are fragile at best and that if we want them preserved, we better elect better leaders.

2.  The Court failed to recognize, as they often do,  a number of realities inherent in criminal proceedings.

  • First, they seemed obsessed with this idea that Osborne could have had more advanced testing pre-trial and failed to procure it.  The Court ignored (or in Alito’s case was just unreasonably skeptical of) the clear and undisputed fact that Mr. Osborne begged his lawyer for the additional testing after the first round of primitive pre-trial testing was inconclusive. Yet his counsel chose not to do it because she thought he may be guilty.  Of course, defense lawyers have argued all sorts of defenses, such as self-defense and insanity, at trial because they thought that was what was best for their client at that time, only for the client to prove his innocence many years later through post-conviction DNA testing.  Just as prosecutors, judges and juries get it wrong, so to do defense attorneys.  Thus, we shouldn’t give their “gut feeling” any additional credibility.
  • Second, experts have testified that the testing that Osborne pleaded for before trial, RFLP, would have been unlikely to achieve a result because the sample was degraded even at that time.  We have come a long way with DNA testing methods able to achieve results on smaller, older,  more degraded, and even mixed samples.  IPF has gotten DNA results at private laboratories in cases over 30 years old.  Had testing been performed in this case using the most advanced methods now available to the scientific community, I have no doubt that they would have at least been well-positioned to get a result that could either disprove or confirm Osborne’s guilt.
  • Third, the Court was also stuck on this fact that Osborne had confessed after trial.  But this wasn’t just any confession.  He admitted guilt as a means to get out of prison on parole.  In order to get paroled in most states, you have to admit guilt and show remorse, among other things.  Thus, such an action is completely at odds with folks who are wrongfully convicted.  It is understandable that an innocent individual would refuse to plea to a crime they didn’t commit, because of pride and because of faith in the justice system to not railroad them.  But is it equally understandable that an innocent person, realizing that they may die in prison, would opt to swallow their pride and falsely admit guilt in order to be die a free man.  If the DNA testing can prove such a person innocent, than we should do it irrespective of such a confession.  If it does and the State wants to prosecute them for perjury in the parole proceeding, then we should let the State bear the burden of the political shitstorm that would result from revictimizing someone who they wrongfully incarcerated.

3.  Had the Court recognized a constitutional right to postconviction access to DNA testing here, it would have, in theory, expanded the access that imprisoned Floridians already have under Florida law.  It likely would have allowed IPF to cut through some of the tired methods the State uses to frustrate or prevent DNA testing that most inmates are entitled to under the law.  Obviously, it would have made our lives and the lives of our clients a bit easier.

The reality is, however, that yesterday’s decision has little effect on us here in Florida.  Attorney General Holder (who has been wildly diappointing on so many fronts thus far) does make a good point:

But today’s decision is limited: the Court merely spoke about what is constitutional, not what is good policy. And there is a fundamental difference. Constitutional rights are only one part of a fair and full system of justice. Simply because a course of action is constitutional does not make it wise. Nothing in today’s decision detracts from the unique power of DNA; indeed, the first line of today’s Court opinion emphasized that ‘DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.’ DNA testing helps ensure that justice is done.”For that reason, this administration believes that defendants should be permitted access to DNA evidence in a range of circumstances. In the 2004 Innocence Protection Act, Congress guaranteed access to DNA evidence held by the federal government under specific conditions, and made money available to encourage states to do the same. Today’s decision reaffirmed the power of such practices, and I hope that in light of today’s decision all levels of government will follow the federal government’s lead by working to expand access to DNA evidence.”

Florida has a decent postconviction DNA testing statute that allows an inmate to request such testing at any time (in most instances) and even in most case cases where the inmate pled to the crime, if the inmate can satisfy certain requirements.  Peter Neufeld, co-founder ofThe Innocence Project and who argued Osborne in the Supreme Court, echos my sentiment.

But what about the people, like Mr. Osborne, in the remaining three states of Alaska, Massachusetts, and Oklahoma who may be innocent with no way to prove it because these states are the lone holdouts without a postconviction DNA testing statute?  How many DNA exonerations do we need before legislatures in these states take off the blinders and quit being willfully ignorant to the fact that they are the recalcitrant minority in this country?  It is particularly bad considering that Massachusetts has had 9 DNA exonerees, while Oklahoma has had 10.

I guess we will have to cross our fingers and hope they will eventually do the right thing.  I won’t hold my breath.

Constitution, judicial, post-conviction, , ,

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