Begging The Question

Thursday, June 08, 2006

Death-Qualified Juries and Atkins Hearings
Howard links to the Virginia Supreme Court's opinion in the latest round of the long-running Atkins saga. I thought I'd offer a few thoughts now that Blogger will finally let me. In short, a few years ago, the U.S. Supreme Court held, after one of Atkins's appeals, that it is unconstitutional to execute the mentally retarded. The D.C. Supremes remanded the case for a determination if Atkins actually was retarded.

Under the post-Atkins procedures adopted by the Virginia legislature, the Atkins hearing on mental retardation takes place as part of the sentencing proceeding; that is, after the jury has already convicted the defendant of capital murder. I guess the thought was that it would be a waste of time if they had it pre-trial and the jury ended up not convicting. And of course, there might have been the concern that it would create sympathy for the defendant or act as a backdoor insanity/diminished capacity defense. And I can see the concern that it would end up being a mini pre-trial if a lot of the guilt evidence had to be hashed through at an Atkins hearing (because obviously it might be relevant to retardation if the defendant had meticulously planned the crime, for example).

So, all in all, I can see why they decided to place that hearing post-trial as part of sentencing. But the neat trick with that is they get to death-qualify the jury that hears the retardation evidence. And, it would seem likely that a death-qualified jury might be less eager to agree to excuse the defendant on grounds of retardation. I can see that you might still have to death-qualify the jury if the hearing were pre-trial, but it wouldn't be logically compelled, and the jury wouldn't necessarily have heard all that guilt or victim impact evidence, even if it were death-qualified. (In case anyone reading this is unfamiliar with the terminology, "death-qualifying" a jury means removing any potential jurors who have scruples against imposing the death penalty. As a rule of thumb, a death-qualified jury is believed to be more likely to convict the defendant at the guilt phase. It's an interesting phenomenon I don't have time or space to get into.)

Anyway, the court in today's Atkins case seemed to have attempted to make Mr. Atkins's unusual circumstances conform as closely as possible to the standard procedure. So, his hearing will be conducted as if it had followed a conviction, in the same manner of a new sentencing hearing after an appeal from a death sentence. And, the jury is allowed to know that if it finds Atkins to be mentally retarded, he will get a sentence of life imprisonment (the verdict form in the statute tells the jury to fix his sentence at life imprisonment or life plus a fine).

But, the court also says that knowing the sentence it has input on is life or life-plus-fine also means that the jury can be told that the alternative (already fixed by a jury that did not have a specific hearing on retardation) is death. There's no real reason the jury has to have this information. The only issue before it is the factual question of whether Atkins is retarded; the sentence is dependent on their finding but they can't change the sentencing options. Normally we tell a jury not to concern itself with possible sentences during the guilt phase. (And, here, the court reversed the trial court in part because the trial judge told the jury about Atkins's death sentence!) But the court today treats Atkins's Atkins hearing as a sentencing (what punishment is appropriate) hearing when it really seems more like the guilt/factfinding phase.

Imagine a civil analogue: a tort trial where the parties had already stipulated to the amount of damages. The jury is instructed that its only task is to determine liability. We don't tell the jury that, if it finds for the plaintiff, the defendant has to pay $1 million, but that if they find against the plaintiff, he gets nothing. That information is irrelevant to the task at hand, and in fact, likely to prejudice the jury's decision. In a criminal analogy, this seems like an appeals court vacating a jury's conviction but upholding the death sentence, and then on re-trial the guilt jury gets told that if it convicts the defendant gets death, because that sentence was already set by another jury.

While that potential prejudice is bad enough, the real problem with telling the jury about the sentence (or, the sentence of "not-death" if they find Atkins retarded) is that it allows the state to death-qualify the jury. Yet the jury in this hearing won't be making a penalty decision: there's no need to death-qualify them!

The court provides this instruction for the trial judge in the new hearing:
Daryl Atkins has been convicted of the offense of capital murder during the commission of robbery. The United States Supreme Court and the General Assembly of Virginia have determined that a defendant convicted of capital murder, but who is mentally retarded, is not subject to the imposition of the death penalty. It is your duty to determine whether Atkins is mentally retarded.
The court then drops a footnote to make clear that this means the jury can be death-qualified. But it seems to me that the instruction should be whittled down to the last sentence (or maybe the first and last). Isn't that all it's supposed to be doing -- "determin[ing] whether Atkins is mentally retarded"? Why even mention the death sentence? The two most likely reasons I can conjure are that either you don't think a death-qualified jury really is less likely to find Atkins retarded, or you don't care.

It's easy to dismiss this as a one-time glitch because of the odd posture of Atkins's case. But what would happen in a case where the post-trial, pre-sentence Atkins hearing is flawed in some way, but there's nothing wrong with the trial or the sentencing phase? In Atkins's case today, the Virginia Supreme Court reversed the trial court on an evidentiary ruling regarding one of the retardation experts. Let's imagine a future case where that's the only error, but it merits reversing the trial jury's finding that the defendant wasn't retarded. What will the procedure be after remand? Wouldn't the state argue that the original jury's death sentence should stand, as in Atkins, and that the jury should know about that sentence, which would of course allow the state to death-qualify the new jury? It seems to me that the fair thing to do would be to either (a) have the new jury decide retardation and sentence, or (b) have it decide just retardation and don't tell it anything about the sentence, as if it were some kind of civil commitment hearing. But I don't see any reason to death-qualify a jury if it's not going to be deciding the appropriateness of the death penalty.

Wednesday, June 07, 2006

I'm not even supposed to be here today!
Two Supreme Court notes, now that Blogger is finally working.

1. Prof. Althouse endorses this suggestion in The Atlantic that we should do away with Supreme Court clerks. In the words of the authors of the piece, Stuart Taylor and Benjamin Wittes,
Eliminating the law clerks would force the justices to focus more on legal analysis and, we can hope, less on their own policy agendas. It would leave them little time for silly speeches. It would make them more "independent" than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.
A few thoughts. First, wouldn't it be interesting if the law in America were sufficiently lucid that any law school graduate could understand and interpret it? Second, firing clerks wouldn't necessarily -- or even likely -- lead to the Justices hearing more cases and "focusing" on something besides "their own policy agendas." They'd be free to hear even fewer cases, and go totally off the reservation when writing the opinions. "Cutting the clerks out of the writing will also improve the justices' decision-making, by forcing them to think issues through." What are you counting on to inspire rigor in the analysis, shame? Pride? In these folks? If they don't "think issues through" now, they're not going to when no one is there to gently suggest the need for a citation for a particular proposition the Justice thinks can be introduced by "clearly." I'm not saying the clerks are a major source of discipline, but if the argument is that the justices have no self-discipline now, I fail to see how firing the clerks would make the justices suddenly straighten up and fly right. Doesn't this argument depend on the assumptions that (a) it's the clerks who are slipping all this pernicious political agenda stuff into the opinions, and (b) that back in the good ole days, when the caseload was high and the clerks weren't there, that the opinions were full of intellectual rigor and devoid of political agendas? Are either of those assumptions true?

2. Feddie notes the buzz this week over the fact that Justice Scalia (and presumably his clerks too!) didn't join a portion of Justice Alito's opinion that discussed the legislative history of the Speedy Trial Act. This is being portrayed, slow week that it is, as some kind of major rift between the two. The "Scalito" nickname is undeserved, they say. I never saw Alito as a true Scalia clone, but as I said in the comments at Feddie's place: "Puh-leeze. I haven't seen a mountain this big made out of a molehill this small in a long time." The Speedy Trial case was unanimous in all other respects, including the bottom line result in the case. The legislative history portion of Alito's opinion was essentially surplusage. Scalia declines to join those sections in his colleagues' opinions all the time, and it doesn't make him any more or less close to them. It's just one of his things. The other justices are generally accommodating enough to set aside those discursions in footnotes or in separate roman-numbered sections, to make it easier for Scalia to identify what he's not joining. I would say "Wake me when a disagreement between Scalia and Alito over the use of legislative history as a tool of statutory interpretation makes an actual difference in the outcome of a case (maybe the "less is more" case), because then I'll be impressed." But, I fear I would end up taking a Rip van Winkle-length nap. Which sounds like a good idea right about now, come to think of it.

Monday, June 05, 2006

Maybe we can get Capt. Kangaroo to preside
At Slate over the weekend, John Dickerson and Dahlia Lithwick ran a piece arguing that the Pentagon should let the fledgling Iraqi justice system try the Marines accused of massacring civilians in the town of Haditha. Dylan called it "one of the two colossal idiocies that drove me into an incoherent rage this morning." (Only two? He must be on Ecstasy.) At The New Republic blog, Spencer Ackerman elaborated and asked, "Are John Dickerson and Dahlia Lithwick out of their frigging minds?"

I've never been one of the Lithwick-bashers of the blogosphere, but I come down on the side of hoping this turns into a very special "JAG" movie, and that the Marine Corps and the UCMJ prove capable of addressing what happened at Haditha. Ackerman wryly suggests the Slate essay must be a satire, because the notion of letting the Iraqis try this case is ridiculous. It certainly won't endear the American military to the Iraqi populace, and won't generate any long-lost credibility. As Ackerman puts it, "Their bottom line: '[W]e either believe in Iraqi institutions or we don't.' And that's where the head scratching comes in. Of course we don't believe in Iraqi institutions. You'd have to be insane to do so."

So why suggest that the Iraqis try the Marines? Are Dickerson and Lithwich really "out of their frigging minds"? On the contrary, I think they realize the trial would devolve into "a circus, or show trial," which they don't mind because "we might remember that we can't stop circus trials from taking place right here in the United States." Well, if it's good enough for us....

I think what Dickerson and Lithwick are really suggesting is handing over U.S. Marines as sacrificial lambs to the mob in an act of contrition for all our mistakes in Iraq. Most people would either see that as a mere drop in the bucket or far too high a price to pay. But even on its terms, it wouldn't accomplish anything other than providing a distracting circus. It wouldn't satisfy anyone.

Now, to be fair, Dickerson and Lithwick acknowledge that the Bush administration isn't about to put Marines in the same dock where Saddam Hussein now sits. And they go on to argue that, even if it's not to the degree of actually trying the case, the Iraqis need to have some ownership and involvement in the investigation and prosecution of the Haditha deaths. (They suggest a joint U.S.-Iraqi C.S.I. squad.) And, up to a point, I have to agree: Not involving the Iraqis at all would be almost as bad as letting them run the whole case. But Ackerman links to a story quoting Iraqis who are so "numbed" to the situation there that the Haditha incident didn't even faze them. Why would we expect a "numbed" populace who sees such killings as "the way of life now," and without a working courts system to reach a fair solution that would mean anything to anybody? I'm certainly not suggesting that if Marines committed a "massacre" they shouldn't face justice. I just think that spinning off "Law & Order: Baghdad" would be a terribly futile gesture, no matter what you hope to accomplish.

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