FYI: Miscellaneous news, law review articles, and info from the legal blogosphere.

Various tidbits that have accumulated in my in-box over the past few weeks, as I've been busy attending to some critical non-blog related work (after all, the blog is non-income producing activity...I do need to pay some bills here-and-there)

• Appellate rulings sought to set guidelines for mental impairment defenses (Texas)
• Findley on Cognitive Distortion and Conviction of the Innocent.
• Sundby on "War and Peace in the Jury Room:  How Capital Juries Reach Unanimity"
  

Law Review Article: Twenty-five years of social science in law (Monahan & Walker, 2010)

Monahan, J., & Walker, L. (2010).  Twenty-Five Years of Social Science in Law.  Virginia Public Law and Legal Theory Research Paper No. 2010-99


Abstract:    

In this Essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed - sometimes radically - are the substantive legal questions on which social science has been brought to bear.

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More on the Hollow Holding of Atkins v. Virginia – Executing the Mentally Retarded (Holmes v LA, 2008)

The following is Guest Blog post by Kevin Foley, a regular guest blogger at the ICDP blog.  Guest blog posts are reproduced "as is" and do not necessarily reflect the views of the ICDP blogmater.  The blogmaster does insert URL links to provide readers access to relevant information in any guest post].

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Kevin McGrew’s recent posting (A deadly Catch-22:  It is possible to execute a person with ID/MR in the United States--Time for SCOTUS to revisit Atkins?) about the Kafkaesque result in the case of Bruce Carneil Webster questioned whether the U.S. Supreme Court might be the next step for  Webster.  Although a petition for a writ of certiorari in the Supreme Court is likely, Webster’s next step may be a motion for rehearing in the appeals court, or an effort at clemency for the death sentence.  Unfortunately, Webster is not the only example of a statute getting in the way of a death row inmate’s effort to prove she is mentally retarded.

Brandy Holmes (click here for 2008 Holmes v LA decision)

Brandy Holmes is a death row inmate in Louisiana. She may or may not be mentally retarded (ID), but she argued to the Louisiana Supreme Court that she was mentally retarded and that her death sentence violated Atkins and the Eighth Amendment.  In dissent, the chief justice of the Louisiana Supreme Court stated, “there is a reasonable likelihood that she is mentally retarded”.  But a jury never got a chance to pass on the issue of whether Holmes is mentally retarded, and the Louisiana Supreme Court refused to consider the issue, because

“the [defense attorney] neither requested that the jury definitively decide the issue as authorized by La. Code Crim. Proc. art. 905.5.1(B) nor sought a jury instruction charging jurors that it could not return a death verdict if it determined defendant was mentally retarded. Ultimately, because the defendant did not file the required notice and argue the issue of mental retardation to the jury as required by La. Code Crim. Proc. art. 905.5.1, the issue was not preserved for appellate review.” [1]

Despite having well-known Harvard Law School professor, Charles Ogletree,  advocating on her behalf, the U.S. Supreme Court declined to review Holmes’ case. [2]  So like Webster, Brandy Holmes’ may be mentally retarded, yet still subject to the death penalty.

Holmes’ case is in a different posture than Webster’s; she still has the opportunity to raise her mental retardation claim in a “collateral” proceeding.  Yet, the Louisiana Supreme Court appeared to go out its way to pre-judge the issue in its direct appeal decision. This is troublesome. The court’s comments (discussed below) could potentially handicap Holmes’ later effort to show that she is mentally retarded and not subject to the death penalty. 

Convicted criminal defendants have two ways to “appeal” their convictions and sentences. One, they have a right to a direct appeal, such as what was involved in Holmes (2008).  If unsuccessful on direct appeal, the defendant can “collaterally” attack the conviction in what are commonly referred to as post-conviction proceedings. Typically, these claims are brought in the state trial court, and after further state court appeals are exhausted, the claims are renewed in a federal habeas corpus proceeding, albeit under rules which are fairly restrictive – as shown by the result in Webster.

Probably the most common type of post-conviction claim is the assertion that trial counsel provided ineffective assistance of counsel.  Ineffective assistance claims are rooted in the Sixth Amendment’s right to counsel. “To prevail on an ineffective assistance claim, a defendant must establish both deficient performance by counsel and resulting prejudice.” [3]  But proving deficient performance under existing Supreme Court standards is not easy.  Courts give fairly wide discretion to trial counsel and they can be loathe the second guess attorneys through arm chair quarterbacking. “In short, courts generally presume that defense counsel’s performance was sound, and they will often refuse to second-guess counsel’s decisions on the theory that ‘under the circumstances, the challenged action ‘might be considered sound trial strategy.’” [4]

Which brings us back to Brandy Holmes.  After the Louisiana Supreme Court noted that direct appeal of the mental retardation claim was waived because trial counsel failed to properly present the claim in accordance with Louisiana law, the court stated,

“At this point in these trial proceedings, it is not within our province to second-guess the wisdom of this course of action or delve into the trial strategy that well-seasoned and experienced capital defense counsel chose to employ. See State v. Myles, 389 So. 2d 12, 39 (La. 1980) (recognizing that this Court ‘does not sit to second-guess strategic and tactical choices made by trial counsel.’) Notwithstanding, we observe the defendant presented evidence from three experts at the penalty phase alleging she suffered from fetal alcohol syndrome and argued that as a mitigating factor during sentencing.” [5]

The court’s quoted language is troublesome. First, the mental retardation claim was not presented in accordance with the requirements of a particular Louisiana statute, period. Whether this was due to strategy or neglect was irrelevant. Thus, the court’s quoted language seems gratuitous.  Second, and most problematic, is the concern that the court was sending a message to the judge who might hear the post-conviction proceedings in the future.  With this decision, the Louisiana Supreme Court has already advised that Holmes’ attorney was a “well-seasoned and experienced capital defense counsel”. And the court has already implied that trial counsel made an informed, strategic decision to use fetal alcohol syndrome as a basis for mitigation, and it is not the courts’ job to “second guess strategic and tactical” decisions such as this.  It is sometimes hard to divine what justices are thinking when they publish their decisions. But this case has a certain smell to it that just does not seem right.

1  State v. Holmes, __ So. 3d __, Case No. 06-KA-2988, Slip op. at 25, n. 15.

2  Death row female denied high court review, Newsique, Oct. 5, 2009, http://www.newsique.com/us/death_row_female_denied_high_cou/ (accessed May 1, 2010). The citation for the denial of the petition is, Holmes v. La., 2009 U.S. LEXIS 6508 (U.S., Oct. 5, 2009).

3  Kyle Graham, Tactical Ineffective Assistance in Capital Trials,  57 Am. U. L. Rev. 1645, 1653 (2008).

4 Carissa Byrne Hessick, Ineffective Assistance at Sentencing, ___ Boston Coll. L. Rev. _  (2009)(adv. copy at pg. 10), quoting from, Strickland v. Washington, 466 U.S. 668 , 689 (1984).

5  Holmes, supra  note 1, slip op. at 25-26, n.15.

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Law Review Articles: (Mis)Use of statistics in law; prosecutor misconduct in capital punishment cases

Bilz (2010).  Defending the (Mis)Use of Statistics in Law.  Journal of Institutional & Theoretical Economics, Vol. 166, pp. 194-198, 2010

In this brief Comment, I argue that the goals and craft norms of law differ so sharply from those of social science that it is a mistake to hold the two disciplines to the same set of standards for the use and interpretation of statistical evidence. First, we can lose more social value when policy makers are too cautious with empirical research than when they are too free. Second, the craft norms of law and policy making are capable of dealing with the misuses that do occur.

Kirchmeier, Greenwald, Reynolds & Sussman (2010). Vigilante Justice: Prosecutor Misconduct in Capital Cases.  Wayne Law Review, Vol. 55, pp. 1327-1385, 2009 

This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct. The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die. Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases.

In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

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Law Review Article: Tuerkheimer (2010) on science-dependent prosecution in criminal justice

Although not dealing specifically with Atkins cases, the role of science (i.e., the science of psychometics and psychological testing) in criminal justice cases is no doubt a critical issue.

Tuerkheimer, D. (2010). Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency.  Alabama Law Review.  Click here to visit site where article can be downloaded.

  Abstract:     

Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?


Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study.


Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.

Keywords: Shaken Baby Syndrome, Forensic Science, Expert Testimony

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Law Review Article: The Geography of Criminal Law

New law review article by Adam Benforado (Drexel University - Earle Mack School of Law):  The Geography of Criminal Law (Cardozo Law Review, Vol. 31, No. 3, 2010) on SSRN (click here to go to download link).

Abstract

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

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