The Supreme Court handed down two opinions this year, both unanimous per curiams, one going each way for defendants. Today's opinion held a lower court misconstrued effective assistance of counsel rules in a capital case; since a strongly defensive legal mind guardedly agrees with it, I'm inclined (fwiw) to as well. The Court has over the last few years shown some concern for counsel in this area, if not as much as the mock opinion in We Dissent would wish.
Justice Stevens (joined by Ginsburg and Sotomayor, who joined another opposition to a death penalty order in her first apparent on record vote) put forth a statement in respect to the Supremes accepting an accelerated appeals process for the sniper:
I continue to believe that the Court would be wise to adopt a practice of staying all executions scheduled inadvance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus.
This blog suggests that it is telling that such an uncontroversial death sentence appellate process is deemed quick when it has been going on for six years. It hasn't -- that would be next year. But, as I note in comments there, the case is far from simple. It is a multiple homicide involving different state jurisdictions, one where he was not sentenced in the second state until under four years ago. Such a complicated case would lead state judges to take special care. Since a regular case can take years, why would this not take some more?*
Today was the orals for the life without parole for teenagers in non-capital crimes cases. An article underlines how rarely this penalty is actually applied, most of the cases in Florida and Louisiana (five times in the former), with a little over a hundred overall. The Chief Justice appears to want to push for a sort of conservative middle ground, the sort of thing that we will have to deal with in many cases for some time. His idea is that Roper v. Simmons requires teen defendants to be treated differently, but noted death was different:
The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime.
Roper also noted that for teens, various factors require that a hard line be drawn since the possibility of erroneous sentences was too much of a risk. The idea here would be that that only applies to death sentences, though in the 1980s, even there those under sixteen when the crime was convicted (one here was thirteen) was treated differently. My overall concern is that this really has limited effect. Wouldn't the judge already do that sort of weighing when applying a not mandatory LWOP sentence to minors? I'm sure sentencing judges in some fashion take the age into consideration for any sort of crime. It has a phony feel to it.
The net effect, not trivial I guess, would be that the judge would be more open to being second guessed, including in federal courts. This would lead to some overrulings in close cases and court review might also open up more scrutiny to the cases overall. OTOH, these cases can be remanded and the two could get the same sentences. And, Scalia/Thomas never support proportional review.
Anyways, this is the sort of case where at least hearing the audio without waiting a year or so for Oyez.com to put it out would be appreciated. We are dealing with an important issue that at the very least will significantly affect criminal policy in Florida and elsewhere and involves an issue in which the public is interested. It is not some arcane statutory case or whatnot.
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* Since the scheduled examination of the ruling below was due in a few weeks, Justice Stevens' (who did not dissent) statement was not particularly liberal or anything. If anything, it could be considered concerned with smooth federal judicial practice and Supreme Court prerogatives. Still, Sotomayor's acceptance of a vote in support of careful examination in death penalty cases is appreciated.
[Update: The sniper has been executed. Timothy McVeigh at least had a "he probably had help, more than that guy who helped him and did not get executed / don't make him a martyr" angle. The sniper, who does seem to me somewhat deranged, is a pretty hard anti-death penalty subject. He even seems someone more likely to kill in prison, though don't know about those Supermax jobs. Someone even used his teenage assistant against me to justify upholding LWOP for teens.
But, the guy still was a human citizen of this country and you aren't going to have -- particularly in Virginia -- a death penalty that only kills mass murderers that are clearly guilty. OTOH, those who are full abolitionists should be careful not to go over the top in these cases ... most probably were, though a few over at TalkLeft were not. A website that specifically was concerned about one of the Manson gang dying in prison, however, is a good place for that. ]