Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this:

Crito: Wake up, Socrates, we’re busting you outta here!

Socrates: What are you, an idiot?  You can’t do that.

Crito: No worries.  All the bribes are arranged, the travel’s all taken care of, and you have your choice of local city-states all ready to welcome you with open arms.  Let’s blow this Athens joint and get back to freedom and philosophy!

Socrates: Use your head.  Living is not what’s important.  Living a good life — one that is just and honorable — is what’s important.

Crito: Yeah, but…

Socrates: And it’s not just or honorable to try to escape, because that would violate the will of the state that condemned me.

Crito: Aha, but it was unjust for the state to condemn you.

Socrates: Don’t you “aha” me.  The state provided for my entire existence, educated and protected me, and by living here my whole life I’ve entered into an unspoken contract to abide by the state’s law.

Crito: Yeah, but…

Socrates: Shut up.  Justice requires the rule of law.  No man is above the law.  If you start making exceptions for famous philosophers, or for people who can afford bribes, then there is no more rule of law.  Justice disappears, society crumbles, and everyone suffers.

Crito: Yeah, but…

Socrates: So if I break out of here in violation of the state’s law, then I’ll be the bad guy.  I’ll be the enemy of good government.  When I arrive at Thebes or Thessaly, I will come as an enemy of their good government, too.

Crito: Yeah, but…

Socrates: Think of it this way — I’m taking one for the team.  Yes, I’m suffering from an individual injustice.  But that’s the price you pay sometimes for the general justice of society.  If I didn’t pay that price, we’d all suffer.

Crito: Team!  Team!  Team!

Socrates: That’s the spirit.  Now can I go back to sleep, please?

Okay, so after reading this to the kids (and succeeding in our goal of getting them to go the **** to sleep, already), we started wondering if Plato was right about all this.  After all, individual injustice is still, you know, unjust and all.  Wouldn’t it be proper to break the rules to ensure individual justice?  And that got us thinking about Troy Davis.

The rules are keeping him on death row.  The rules will, absent some remarkable and unforeseen intervention, result in his death tomorrow night.  But we’ve got 20 years of hindsight giving us real doubts that he’s guilty.  The rules also say we don’t punish someone unless their guilt is proven beyond a reasonable doubt, and there’s reasonable doubt all over the place now.  It would be an injustice to execute someone whose guilt is so ridden with doubt.  Doesn’t the enormity of that individual injustice warrant breaking the rules to prevent it?

Plato (speaking through Socrates) would clearly say no.  And our system, our jurisprudence, says no.  Because when push comes to shove, the goal is not individual justice.  The purpose has never been individual justice.  It’s always been justice in general, not in particular.

-=-=-=-=-

Of course, our system tries for individual justice.  Defendants are judged on a case-by-case basis.  It’s terribly inefficient, but that’s how we do it.  We don’t just round up the usual suspects or behead every tenth person.  We treasure the right of the individual to be free from arbitrary and abusive governmental action.  That’s all the Declaration of Independence, the Constitution and the Bill of Rights are saying.  The government can hurt you real bad, and so we make the government obey the rules before it does so, to prevent it from hurting you just because it can.  So we decide each case individually, with rules of evidence and constitutional rights and statutory obligations all designed to make sure the might of the state is coming down on you justly.

Though we strive for individual justice, it’s recognized that mistakes get made.  Guilty people escape punishment, and innocent people get convicted.  We try to minimize that, but it happens.  There are rules in place for the undoing of wrongful convictions.  They’re not perfect, but they are the rules.

But if all the rules were followed, and you’re still wrongly convicted?  Well, at this point your interest in individual justice gets trumped by the goal of general justice.

“Finality” is a big concept here.  At some point, everyone has to move on.  Turn the page, close the book, it’s over.  The system is inefficient enough as it is, without allowing people to revisit each case over and over again until they get the result they like.  Society can’t be expected to bear the burden of retrial after retrial — new cases would never get tried, justice would be denied, because we’d be too busy going over the same old cases.

That’s all our criminal justice system really does:  It closes the book so everyone — accused, victims, witnesses, authorities — can get on with their lives.  The jury decides on an official version of the facts, based on what the government could prove rather than on what really happened.  Nobody expects this official version of the facts to be the whole truth.  It’s just something the system can work with, apply the pertinent laws to, and issue the appropriate punishment or dismissal — so everyone can get on with their lives.

In Troy Davis’ case, the official version of the facts is that he killed that police officer in 1989.  It may or may not be the truth — nobody knows but him — but that’s not what’s important.  What’s important is that the government was able to prove, beyond a reasonable doubt, that he did do it.  Whether they could prove it again today is not what the system and its rules are looking at any more.

He may be taking one for the team, then.  Being killed by the rules of the society in which he lives, which are designed to ensure general justice.  If the rules were to be broken for him, then they could be broken for the next guy, and we’d all suffer.

That’s what our jurisprudence says.  That’s what Plato would say.

-=-=-=-=-

And they’d be wrong.

Because one thing that our jurisprudence and Plato routinely ignore is the simple fact that perception is everything.

If the system is perceived to operate in a just fashion — if the people pretty much see it as protecting the rights of the individual and in general getting things right when deciding guilt and innocence — then the system works.  Crime is deterred by the assurance that it is punished accurately.  The laws are generally respected and obeyed because they are seen to be just and to be justly applied.  Society runs smoothly, and the law is doing its job.

But if the system comes to be perceived as unjust — even if in reality it’s as fair as could be — then society falls apart.  If the laws are seen as someone else’s laws, unfairly applied to this community, then the people of that community will lose respect for the laws and be more likely to break them.  If the laws are seen as disproportionately applied to some people as opposed to others, then they are no longer seen as just.  If the system comes to be seen as arbitrary, uncaring and cruel, then the law fails in its purpose.  Fear, not one’s own sense of right and wrong, becomes the primary reason to comply with the law.  That way lies social upheaval, riot and revolution.

In a world like ours, where the rare injustice is what makes the headlines and gets people talking, the risk is that the one-off will come to be seen as the norm.  If the occasional injustice comes more and more to be seen as the norm, rather than the sad exception, then everyone suffers.

The goal of general justice would die, because the perception of individual injustice killed it.

-=-=-=-=-

Socrates didn’t want to be the exception who broke the rules to achieve individual justice, because that would have corrupted and undermined the stability of his society.  But in today’s world, making exceptions and breaking the rules, in order to preserve a general perception that our system is a just one, is probably something worth considering.

Last year, we posted an analysis of capital punishment as practiced in the U.S., and concluded that it ought to be scrapped.  Not for the usual “killing is wrong” or “what about the innocent” reasons, but because as practiced it fails to serve the purposes of punishment.  It doesn’t deter anything, rehabilitate anyone, and even removal only occurs after insane expense and delay.  The unbelievable delay and its ancillaries only undermine faith in justice, while imposing absurd societal costs, for no marginal benefit.

Now it seems that some states are thinking along the same lines.  Over at he WSJ Law Blog, Ashby Jones reports that the administration of capital punishment is being seen as not worth the extra expense.  37 states now are just spending too much money to deal with years and years of appeals (25-year average in California, something like 14 years nationwide) and the associated incarceration and litigation and facilities.  With budgetary concerns becoming ever more critical, the exorbitant costs are becoming a significant reason for legislatures to get rid of capital punishment.

Sounds good to us.

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

-=-=-=-=-

At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Last week, we argued that capital punishment as practiced in America does not work, because it takes too long.

The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the huge gap between the crime and the punishment, and the uncertainty as to whether execution would even result, adds even more injustice into the system while imposing enormous unnecessary societal costs.

Our point was not that appeals should be limited — on the contrary, they are never more necessary. Our point was simply that the process takes so long that it nullifies the whole reason for capital punishment in the first place.

We did not explore, however, whether this delay ought to count as “cruel and unusual punishment” in violation of the Eighth Amendment. We figured we’d leave that one for another day.

Well, today’s the day. In dueling opinions yesterday, Justices Stevens and Thomas went head-to-head over just that issue. We think they’re both right, and they’re both wrong.

-=-=-=-=-

The case is Cecil C. Johnson v. Phil Bredesen, Governor of Tennessee, et al., No. 09-7839. Stevens’ opinion can be found here, and Thomas’ can be found here.

Cecil Johnson was executed yesterday, after the Supreme Court denied cert.

In July 1980, a man robbed a convenience store in Nashville. During the robbery, the thief brutally murdered the store owner’s 12-year-old son, and two other men who were sitting in a taxi.

A couple of days later, Cecil Johnson’s father turned him in. There was no physical evidence that tied him to the crime. He was convicted and sentenced to death in 1981.

For the next 29 years, Johnson plodded through the capital appeals process, persistently maintaining his innocence.

In 1992, Tennessee for the first time gave him access to evidence that might have undermined key testimony against him.

-=-=-=-=-

Justice Stevens argues that this 11-year delay, before Tennessee finally made that disclosure, is a state-caused delay that counts as “unacceptably cruel.”

Thomas replies that it is pure chutzpah for a convict to file appeal after endless appeal, and then claim that the resulting delay violated his rights. He caused the delay, not the government.

But they’re both wrong. The delay wasn’t caused by the government in the way Stevens says, and that only covered the first of three decades anyway. It doesn’t affect the other two decades that this case meandered through the courts. And the delay wasn’t caused by Johnson in the way Thomas says. It’s not Johnson’s fault that the courts took so damned long.

So if the government wasn’t to blame as Stevens argued, and Johnson wasn’t to blame as Thomas argued, then who is to blame?

-=-=-=-=-

It is the procedural setup itself that is to blame. We cannot blame a convict for seeking review, to ensure that he was properly convicted and sentenced, and to ensure that the government did not abuse its power and violate his rights. Far from it — we insist on it. Ensuring that the government did it right for this defendant helps protect all of us, and Americans want it that way.

But we can blame the delays that are built into the system’s procedural rules. There is no reason why it should take years to get from a challenged ruling to an appellate decision on that ruling. The only reason why it does take years is because the procedural rules allow it. And human nature being what it is, it is hardly surprising that lawyers and judges will take all the time they are permitted to argue and decide matters of life and death.

Some amount of delay is reasonable, of course — it would be equally unjust to impose time limits that are too short to permit thoughtful argument and careful analysis. But even with longer than usual time limits, there is no reason why state appeals couldn’t be exhausted within a year of sentencing, and federal challenges exhausted within another year. Two years, not twenty or thirty.

(Think this way: Give the defendant 30 days after sentence to file a notice of appeal, then another 60 to file his brief. 90 days is more than enough time to do the work. Give the prosecution a generous 60 days to reply. Take 30 days to prepare for oral argument, and then give the judges another 30 days to noodle it through and make a decision. That’s 210 days, and the first appeal is over. Subsequent appeals are going to go over the same ground, so time limits can be shorter now. Say another 30 days for the defendant to announce he’s taking it to the state’s supreme court. Then 30 days to brief it, 30 days for the prosecution to brief it, 30 days to prepare for oral argument, and 30 days to reach a decision. That’s 360 days. One year. Federal appeals and habeas shouldn’t take more than one more year. And we’re done.)

-=-=-=-=-

Okay, so the delay is preventable. It’s caused by government rule-making. And the rules can be changed to protect the defendant’s interest in speedy resolution while continuing to protect his interest in thorough vetting of his conviction.

But does that make this delay “cruel and unusual punishment” for Eighth Amendment purposes? Probably not.

Think about it. All that’s happening to the defendant during this delay is that he’s being incarcerated. In a world without capital punishment, he’d be in the same position. He’d still be incarcerated, while going through the same appellate process that every other inmate goes through. The same process, and the same incarceration, that clearly does not violate ordinary convicts’ Eighth Amendment rights.

So no, the appellate delay is not cruel and unusual. But it still totally defeats the purpose of capital punishment in the first place, and for that simple policy reason the death penalty should be banned until such time as the system works out a way to complete the appellate process soon enough and consistently enough to make it worthwhile.

-=-=-=-=-

There are other problems with Stevens’ and Thomas’ arguments. Stevens, for example, is about to retire after a long tenure on the bench, and recent years have seen him going all-out to make a legacy for himself. He is adamantly opposed to the death penalty, and will make any argument against it. As a result, he winds up trying to have it both ways, as Thomas unkindly points out — decrying both the length of the appellate process, as well as the perversity of carrying out executions before every appeal has been exhausted.

Thomas, meanwhile, flatly ignores the interests of justice, and gets hung up on whether the technical procedural requirements were satisfied. He forgets that the procedures are there to serve the interests of justice, and not the other way around. The rules are there to help ensure that defendants’ rights are protected, but the rules are not the only safeguard. The mere fact that the rules were satisfied does not necessarily mean that the system worked properly. Judges — particularly Supreme Court justices — need to be able to step back and determine whether this individual’s rights really were protected, and whether society’s policy interests were advanced.

The Last Lawyer: The Fight to Save Death Row Inmates
By John Temple
2009 University Press of Mississippi, 234 pages, $25.95
Amazon.com :: Barnes & Noble

The world is loaded with books about criminal lawyers. They fill the shelves in the mystery and thriller aisles, dominate true crime and related nonfiction genres. After all, a book about what we do is almost a guaranteed page-turner. Conflict? We got it — trials, accusations, at least two sides fighting in every case. Character? Our characters range from the noblest of all to the most despicable and inhuman. Plot? It’s already there, from the crime to the acquittal or execution. And the stakes couldn’t be higher. We’re not fighting over love or money, we’re fighting for people’s lives and liberty.

So it’s no surprise that there are so many John Grishams out there, and so many nonfiction books about criminal defense. And with so many books out there, you’d think that there would be plenty that give a fairly accurate insight into what criminal practice is really like.

And you would be wrong.

For it is rare indeed to find a book that really does the job. There are plenty that entertain, grip the reader, and even have something worth saying. But books that really draw the reader into our world, and let the reader see it with our eyes and our experience? Such books are few and far between.

Which is why we were genuinely delighted to read The Last Lawyer, by John Temple, an associate professor of journalism and associate dean at West Virginia University. Temple is not a criminal lawyer, he’s not a mystery writer, and that’s a good thing. He’s the kind of writer who comes from the outside, and digs deep into his subject. Like the lawyers and investigators he describes in this book, he clearly put in the time and effort to find out what really happened, who did it, how it happened, and why. And then he took all that data and crafted it into a story that is no less powerful simply because it is true.

True stories almost always suffer from bad writing. “But that’s how it really happened” is a crutch for lame writing, an excuse for having told a story poorly. Yes, real life does not play out according to a scripted dramatic formula. But that doesn’t mean reality can’t be presented that way. The Last Lawyer, however, tends to avoid this trap. With few exceptions, Temple grabs the reader and doesn’t let go.

So okay, he’s a good writer. But what does he have to say? That’s the best part.

Because Temple really gets it. He really, really gets it. If you read only one book in your life about what it’s like to be a criminal defense lawyer, read this one.

-=-=-=-=-

When we’re reading a book that particularly engages us, it’s like we’re having a conversation with the author. We find ourselves picking up a pen and scribbling back at him. Books at our house sometimes become dog-eared and annotated beyond any hope of resale. Our copy of The Last Lawyer quickly joined their ranks.

Why, when we already do this stuff for a living? Were we picking fights, or pointing out errors? Not at all. Instead, we frequently found ourselves encountering an insight, or a way of looking at things where we hadn’t looked at it ourselves that way. And we’d go “oh!” or “aha!” And then we’d take that fresh insight and run with it a bit in our head, and it would lead to a new thought we’d always sort of known, but had never actually thought before.

Not as much as we do when reading Proust, Patrick O’Brian or Terry Pratchett. But often enough. Often enough.

-=-=-=-=-

The Last Lawyer takes you through Ken Rose’s decade-long fight to appeal the capital conviction of Bo Jones, a low-IQ Black man sentenced to die for a 1987 murder.

Trial counsel had done little of the work that needed to be done now, and the case had to be investigated from scratch.. Uncooperative witnesses, some who lied and others with good reasons to lie — these were the least of their worries. They had to deal with a client who just did not seem to get the concept. And worse, judges who didn’t get the concept, and couldn’t be bothered to make the effort in the first place. Prosecutors who were the opposite of sympathetic, who railed against attempts to make technical legal arguments, but who were perfectly happy to get a conviction on technicalities themselves. A broken legal system that, instead of seeking justice, becomes a machine for churning people into prison or the gas chamber.

The book takes you through ten years of this struggle, as Ken Rose and his team slowly and gradually discover the facts and arguments they need to save Bo Jones’ life. In the process, you get to see firsthand the best and the worst that our system has to offer. Like any other human enterprise, you see a handful of outstanding performers, another handful of ruinous subverters, and a huge majority of folks just going along to get along. You see a system with powerful inertia.

Our adversarial system is designed to achieve justice, but it needs honest and good-faith opposition to function properly. Both sides need to play by the rules, and try their best, if justice is going to result. And it needs judicial referees to keep a keen eye out, not only for fouls, but for merit as well. But the reader of this book sees law enforcement that isn’t always as honest as we expect it to be, prosecutors who stop trying to seek justice and instead get invested in winning at all cost, defense attorneys who stop protecting their client above all else and instead become mere grease in the wheels of this machine. And judges who have seen so many frivolous arguments that they can’t spot the valid ones any more, and who aren’t terribly inclined to look for them in the first place.

But there’s more to it than that. It’s not just the broken system. There is good out there. And you get to see that, too. The single most important variable in whether a case is won or lost is preparation. And you see how good lawyers prepare, do the hard work, take the time to do the job right. You see real dedication, not to ego or money or advancement, but to saving the life of a fellow human being. To seeking real justice. To making the system a little bit better, for all of us.

This is the day-to-day experience of a criminal lawyer. The sometimes odd personalities, the deep injustices, the soaring heights of the human spirit, and everything in between.

Go get the book.

Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month.

The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay bar, and seduced a guy he met there. The victim invited Van Hook to his apartment, where Van Hook got him into “a vulnerable position.” Then Van Hook strangled his victim till he was unconscious, killed him with a kitchen knife, and mutilated his body, before taking off with his victim’s valuables. Van Hook later confessed, and was sentenced to death.

His appeals lasted for nine years, all of which were denied. He then spent the next 14 years litigating a single federal habeas petition. First, he unsuccessfully challenged the constitutionality of his confession, losing those arguments all the way up to a denial of certiorari by the Supremes in 2007. Then he tried a new argument, that he’d gotten ineffective assistance of counsel at sentencing, because all the work they had done wasn’t enough. The Sixth Circuit said his sentence should be reconsidered under new standards that had arisen 18 years after the fact. Ohio appealed, and the Supreme Court said you can’t apply these new standards retroactively like that. Van Hook argued that his counsel was ineffective under the standards at the time, anyway, to which the Supremes replied: “He is wrong.”

The Sixth Circuit being reversed, Robert Van Hook is now once again back in the queue for execution, nearly a quarter of a century later.

The second case decided was Wong v. Belmontes, which came out on the 16th. This case started way back in 1981, when Fernando Belmontes bludgeoned Steacy McConnell about 20 times with a steel weightlifting bar. She fought back desperately, to try to save herself, but ultimately Belmontes succeeded in killing her, so he could steal her stereo. He sold it for $100, which he spent on beer and drugs for that evening. He was convicted in California and sentenced to death.

His appeals went back and forth, and he lost. He tried to get federal habeas relief, but the District Court wouldn’t go for it. He appealed that, and the nothing-if-not-consistent Ninth Circuit bent over backwards to find instructional error, but the Supreme Court slapped that down in 2006. The Ninth Circuit tried again, this time finding ineffective assistance of counsel at sentencing. In its ruling this month, the Supreme Court pointed out not only how much work went into the defense case at sentencing, but also how wise and skillful it had been. “If this counsel couldn’t make it work,” the Court seems to say, “then nobody could.” You just can’t mitigate away a case where the victim had obviously suffered so needlessly and brutally.

So now, the Ninth Circuit is reversed, and Fernando Belmontes is back on the capital-punishment track 28 years after the crime.

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It being close to Thanksgiving, these decisions remind us of one of the first cases we ever worked on, back when we labored at all hours over Thanksgiving 1995 with the famed Carter Phillips, trying to prevent the execution of a retarded man, Walter Correll. Especially in light of the Supreme Court’s turnaround in the 2002 Atkins v. Virginia decision, ruling that executing the mentally retarded is a violation of the Eighth Amendment, we always get a little gloomy when we think back on that case.

But these decisions also remind us that, Republican though we may be, we remain firmly opposed to the death penalty. Not because it’s inherently cruel or inappropriate, but because it takes so damn long to carry out. The way the death penalty works in this country results in real injustice, harms society, and just makes things worse.

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Look at the graph we stuck up there at the top of this post. We made that graph based on data freely available from the United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. You can see the raw data here.

That chart shows the average elapsed time, from sentence to execution, for each year. This is the average, and as the recent cases attest, actual times can be much much longer. But on average, the wait has gone from 51 months (4-1/4 years), to 153 months (12-3/4 years). That is an insane delay!

Elsewhere in the statistics, we see that the average inmate on death row right now has been waiting for 141 months, or about 11-3/4 years.

That’s a long time, in anyone’s book.

Now don’t get us wrong — we’re glad of the opportunity this affords us to find evidence of actual innocence, DNA evidence, or other means to exonerate the truly innocent. We’re not advocating for speedier executions, here. It takes this long because that’s just how long it takes. Our system is set up to give a lot of opportunity to review death sentences before they’re carried out. There is no appeal after execution, so society wants to make sure that everything was done right, that the convict has been afforded every procedural and constitutional protection that our jurisprudence has devised. And it just takes a long time to do that.

Our point is that the death penalty is improper (among perhaps other reasons) because this necessary delay makes it counterproductive.

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Why do we punish people in the first place? Punishment is when the awesome might of the government is brought to bear on an individual, taking away rights, liberties, property, and even his life. Why do we do that?

We do that because we’ve deemed some actions so harmful to society that, to protect itself, society has to impose this harm. But that begs the question. It’s more of a definition of “what is a crime” than “why do we punish, to begin with.”

We punish because, over history, societies have discovered that it works. At some instinctive level, you get retaliation. Someone hits you, so you hit them back without thinking. It’s a primal urge, not a civilized one, but it would be foolish to pretend that society does not have its own primal urges. We don’t punish strictly to hit back at those who would hurt us, not consciously perhaps, but it is part of the reason why.

A more civilized reason is deterrence. It’s like spanking a child — the criminal associates the punishment with the crime, and decides not to do that any more. And if the spanking is public and seen by others, then others will also realize that this could happen to them, and they won’t do it either.

Deterrence only works, of course, if the punishment is close enough in time to the offense to have a psychological effect. If you spank a kid for something he did three weeks ago, the only psychological message you’re sending is that you’re unfair and cruel, and thereby weakening your own authority.

Deterrence only works if the punishment is connected to the crime. If you spank a kid and he has no idea why you’re spanking him, you’re not deterring anything. All you’re doing is demonstrating that you are arbitrary and unjust. The kid doesn’t know what to expect from you, and will grow to fear and despise you.

General deterrence of other potential criminals only works if the punishment is known, in addition to being close in time and tied to the offense. If people don’t know that it happened, then there is zero deterrent effect from any particular offense.

Perception then, as in so much of life, is everything. You want the system set up in such a way as to create the impression that sentences are just and fair, but you also want the perception that sentences are also going to be imposed. That, if you commit this offense, that punishment is actually going to happen.

Ideally, a utilitarian and a social idealist might even agree that the best way to do this would be to create the perception that sentences are speedily and fairly meted out, without going to all the expense and social harm of actually imposing them.

The flip side of that would be the opposite of ideal, then. And the flip side is exactly what we’ve got.

In our present system, capital punishment is not imposed close in time to the offense. It takes a decade or two before it is carried out. That’s like spanking a kid three weeks later. Far from having any deterrent effect, it undermines faith in justice and weakens the law’s authority.

As practiced, capital punishment is not connected to the crime. It’s almost random. Some horrific murders get the death penalty, others don’t. The reasons for the variety are not obvious or predictable. Unpredictability = no deterrent effect.

And public perception? After all the randomness and delay, there may be a perception that you could get the chair for a given crime, but nobody really thinks you will get the chair. Folks just don’t have an experience of the death penalty as being imposed consistently enough that we simply understand, deep down at a visceral level, that a given crime is likely to result in one’s own death. At best, public perception is a vague theoretical possibility. At worst, and what is more likely, is the perception that the death penalty is so rarely imposed, and only after such an interminable (ha) delay, that it’s really not a factor worth considering in the first place.

(Of course it goes without saying that no punishment can have a deterrent effect on crimes of passion, where no thought went into the crime. But those kinds of crimes tend not to be death-penalty cases, so that argument isn’t really applicable here.)

Another purpose of punishment is rehabilitation, but it’s hard to get one’s act together after one is dead, so that one is out the window.

The only remaining purpose of punishment is removal — getting this threat to public safety off the streets.

Now this one has some promise. Execution certainly removes the offender from our midst. So does exile, though, without all the mess and expense (though dumping our worst threats on someone else could create bigger problems). Life without parole does the same job, though at theoretically great cost — 75% of all death-penalty inmates were under 35 years old when they went in (see more statistics), so they’ve got lots of decades of feeding, sheltering, guarding, clothing, counseling, treating, educating, etc. to pay for.

Unfortunately, as practiced, capital punishment is just a more expensive form of life without parole. At some point, an ordinary prisoner is going to run out of appeals, but the capital inmate doesn’t. And the capital appeals take priority over other judicial needs, while costing the system and everyone involved a lot more in time and resources. By the time someone actually gets executed, all the various costs involved more than cover the costs of a life sentence.

So if removal is the only concern, then life without parole would be the way to go. You don’t get any extra removal from execution. All you get is increased tax burdens, significant extra burdens on the judicial system, loss of enormous amounts of time and money all around, and the intangible losses from harm to the system’s perception and reputation and authority.

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So, speaking as a fairly conservative Republican here, we just don’t see how capital punishment as practiced in America today makes the least bit of sense. It accomplishes little, at enormous unnecessary societal cost.

That’s not the message the Supreme Court probably intended to send with these two cases this month, but that’s the message we heard loud and clear.

Way back in May 1964, in the very small town of Meadville, Mississippi, two black teenagers were hitchhiking down the road when James Ford Seale drove up. Seale, a member of the KKK, told them he was a revenooer looking for moonshiners, and told the boys to get in his car. He then drove them off into the forest. A bunch of other Klansmen met up with them.

Seale pointed a sawed-off shotgun at the boys, while the other Klansmen tied them to a tree. Then the boys were whipped to within an inch of their lives with “bean sticks.” The bloodied boys were hauled to a farm nearby, where Seale bound and gagged them with duct tape. The boys were wrapped in a tarp, shoved into a Klansman’s trunk, and driven 100 miles to a secluded riverbank.

While the boys were still alive, they were chained to the engine block of an old Jeep, and to pieces of railroad track. Then the Klansmen dumped the boys in the river, where they drowned. One of the Klansmen later reported that Seale “would have shot them first, but didn’t want to get blood all over the boat.”

The boys were killed because they were black, and because Seale thought they might have been civil-rights workers.

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In June 1964, three civil rights workers went to Longdale, Mississippi, to investigate the burning of a Methodist Church that had been a civil-rights meeting place. A sheriff’s deputy, also a KKK member, recognized their car and locked all three up. The men were held incognito until an ambush could be prepared, and then were told to get out of the county. The deputy followed them to the edge of town, then pulled them over again. A KKK gang showed up, and the three workers were taken to an isolated place to be brutally beaten and shot to death. Their car was burned in a swamp, and their bodies were buried in a dam.

Their disappearance got national attention, and search parties went out.

In July, one of the search parties found the drowned bodies of the two boys Seale had killed in May.

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Seale and several others were investigated for the murders, appearing before a House subcommittee on Un-American Activities in 1966. The Klansmen were asked about a number of kidnappings and murders, but nothing ever came of it. Seale just sat there smoking a cigar, and took the Fifth.

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About forty years went by. The murders of Charles Moore and Henry Dee were forgotten.

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Then a Canadian filmmaker saw some old CBC footage of the boys’ bodies being hauled out of the river, with the narration “it was the wrong body. The finding of a negro male was noted and forgotten. The search was not for him. The search was for two white youths and their negro friend.”

The filmmaker, David Ridgen, began working on what would become the documentary “Mississippi Cold Case.” He tracked down the brother of one of the victims, a retired 30-year Army veteran named Thomas Moore, who helped work on the film.

The press had been told that Seale had died in the meantime. But it was discovered that he still lived, and his family had lied to protect him. Ridgen and Moore went to the local U.S. Attorney, who promised to re-open the case.

In early 2007, Seale was indicted on two counts of kidnapping and one count of conspiracy. A fellow Klansman, after being given immunity, told the whole story. Seale was convicted of kidnapping after a jury trial in June 2007.

In August 2007, Seale was given three life sentences.

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Seale appealed to the Fifth Circuit. He argued that the statute of limitations for kidnapping had run out. At the time of the crime, there was no limitations period; but in 1972 it changed to a 5-year period.

That’s a pretty damn good argument. It was a capital kidnapping in 1964, which had no statute of limitations. But then in 1972 we got rid of capital punishment. So it reverted to an ordinary 5-year period.

The government pointed out that in 1994, after Furman v. Georgia, we brought back the death penalty. It was constitutional again. So this was a capital kidnapping again. And he was prosecuted and sentenced after it had been deemed a capital kidnapping again. So there was no statute of limitations.

The Fifth Circuit agreed with Seale, and reversed his conviction in September 2008.

The prosecution requested a rehearing en banc. The full panel vacated the appellate decision, so that it could reconsider the issue. They sort of have to do that.

The full panel then duly reconsidered the issue, and split evenly down the middle in June 2009. The effect was to leave the trial court’s conviction and sentence intact. The original Fifth Circuit decision had been vacated.

So now there was no appellate decision at all! And Seale was left with no more avenues to fight his conviction.

Almost.

Seale took it to the Supreme Court. It wasn’t a petition for certiorari, but the almost-forgotten “certified question.”

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How that works is, the Circuit “certifies” a question that it wants the Supremes to help out with. The Supreme Court is asked to instruct the Circuit court on how it ought to rule in the case.

That’s permitted by Rule 19 of the Supreme Court rules, but it only happens once in a blue moon. The last time it happened was in 1981, when the Second Circuit asked for help with the President’s authority to say claims before the Iran-U.S. Claims Tribunal had no legal effect in U.S. courts (the Supremes said he can do it). There was another certified question in the 1970s on whether a retired judge gets to vote on whether to hear a case en banc (no). Before that, there was one in 1964 on whether there is a right to a jury in a criminal contempt case (no). And the only other one in living memory was in 1946, where the Supremes said the Circuit can’t review by mandamus a district court’s remand back to the state court after the case had been removed to the district court.

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So here was a historic opportunity for the Supreme Court to not only decide a rare certified question, but also to decide an issue of great importance to a variety of civil-rights-era cases that are still kicking around the federal courts.

And the Court refused.

This isn’t the first time the Roberts Court has punted on issues that it really ought to have decided. And the did it again here.

This is an issue that may seem hyper-technical, but it is critically important! There are a lot of old cases kicking around that were capital cases at the time, then weren’t and now are again. There’s lots of aging Klansmen out there, not to mention the number of cold-case murders being resuscitated by DNA evidence. Whether the feds can even prosecute these cases any more is at stake!

Not to mention the fact that Seale, horrible as his crimes were, seems now to have been denied due process. He can’t appeal any more? Just because the Circuit (singular) split, and the Supreme Court punted? His legal argument is going to go undecided? How is that remotely right?

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The Court doesn’t write opinions from a denial of a certified question. But they sure got a dissenting opinion today, in United States v. James Ford Seale, by the strangest of bedfellows: Justices Stevens and Scalia.

The two, usually diametrically opposed in their jurisprudence and judicial philosophy, agreed wholeheartedly that the Court should have decided this case.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U.S.C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964.

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In 1964, a violation of §1201 was a capital offense [if] the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnapping results in the loss of life. But for more than two decades in between, Seale’s crime was not punishable by death.

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The question is narrow, debatable, and important. … I see no benefit, and significant cost, to postponing the question’s resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted.

We couldn’t have said it better ourselves.

We love Alan Dershowitz. And we love Justice Scalia. So at first we were intrigued to hear that Dersh had challenged Scalia to a debate over his recent dissent in Davis. (See our post on it here.)

But it turns out that Dersh is just being disingenuous. Pity.

Quick recap: Davis was convicted of a murder. Since then, several witnesses have recanted. He filed a habeas petition directly with the Supreme Court. Justice Stevens, writing for the majority, passed it on to the District Court to decide whether Davis really is innocent. Justice Scalia dissented, saying that the District Court doesn’t have the power to do anything, even if it does find him innocent.

The reason why Scalia said that — and he really does have a point — is because the law in question only lets the District Court act if there is well-settled Supreme Court precedent allowing it. Scalia pointed out the simple fact, known to any death penalty scholar, that there is zero Supreme Court precedent on this issue. And that is because the Supreme Court has gone out of its way to avoid ever deciding one way or the other whether there is a constitutional claim of actual innocence.

Here’s what Scalia said:

This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.

That clearly means nothing more nor less than that the Supreme Court simply hasn’t decided the issue yet.

Now of course there have been plenty of bloggers out there who have mischaracterized and misinterpreted this to mean that Scalia thinks it’s constitutional to execute someone who is actually innocent, so long as their trial wasn’t otherwise defective. That’s not what he said, but there are many who find it easy to believe that he did say that. And there are many more who just don’t get the concept. That’s fine, because those bloggers aren’t highly respected constitutional scholars.

But Dersh is a highly respected constitutional scholar. He has no excuse for misinterpreting what Scalia said. And yet that is exactly what Dersh did in his blog post today on The Daily Beast.

Dersh said he never thought he would see the day when a Justice of the Supreme Court would write an opinion containing the quotation above. Then he explained what he says Scalia meant:

Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

That is absolutely not what Scalia was saying, and Dershowitz ought to know that. He created a straw man, then spent an entire blog post arguing against it.

That was bad enough. But then Dersh made it worse, by challenging Scalia to debate him on it. Dershowitz pointed out that Scalia has publicly promised that, if the Constitution ever compels him to act in violation of the mandates of his Catholic faith, he will resign as a Justice instead. And Scalia has also stated that he could not authorize an execution if he believed it would be immoral.

So Dershowitz says the stakes of their debate would be high: If Scalia loses, he’d either have to change his jurisprudence, or he’d have to resign from the Supreme Court.

But Dersh challenges Scalia to defend a position that Scalia has never taken, that “his constitutional views [permit] the execution of factually innocent defendants.”

And though Dersh imposes high stakes on the man he challenges, he imposes none on himself. If he loses, he loses nothing.

So our favorite constitutional scholar has challenged someone to defend a position he never took, with extreme penalties for losing, and at no risk to himself? Badly done, Dersh. Bad form.

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And by the by, the majority in Davis has tried to force the issue. Whichever way the District Court goes on this, it’s coming back to the Supreme Court, so they may well have to decide once and for all whether there is a constitutional claim of actual innocence. They may not, because this isn’t the strongest case of innocence — it’s a he-said-he-said situation with witnesses who merely recanted testimony — and so they may have other grounds to avoid the issue.

But if they do decide the issue, we have no trouble predicting that Scalia would opine that the our law does provide for a claim of actual innocence. He’d probably refer to the fact that English courts going back to the Middle Ages widely accepted the principle that innocence trumps other considerations. He’d probably quote Fortescue and Blackstone. He could well throw in the maxims of tutius semper est errare in acquietando quam in puniendo, ex parte misericordiae, quam ex parte justiae, and of prestat reum nocentum absolve, quam ex prohibitis indiciis & illegitima probatione condemnari. Heck, if he’s feeling mischievous, he might even cite the rules of Star Chamber (such as In Camera Stellata, 29 April 1607, in Court of Star Chamber, Les Reportes del Cases in Camera Stellata 1593 to 1620).

We wouldn’t be a bit surprised. And Dersh shouldn’t be, either.

In a unanimous decision today, the Supreme Court held that the Double Jeopardy Clause doesn’t prevent Ohio from re-litigating a capital defendant’s mental retardation, after the state’s highest court had opined that he had “mild to borderline” mental retardation.

The case is unique, in that the defendant was sentenced to death before the Supreme Court’s 2002 decision in Atkins v. Virginia, 536 U.S. 304, which outlawed execution of mentally retarded offenders. So the mental capacity of the defendant was taken into consideration at sentencing, but was held to be outweighed by the horrific facts of the crime (the aggravated murder, kidnapping and attempted rape of a ten-year-old boy). Evidence of borderline mental retardation was presented, but no factual finding was reached as to his capacity. On appeal, the Ohio Supreme Court upheld the conviction, and made a passing observation that the defendant had mild to borderline mental retardation, but agreed that its mitigating value was outweighed by the crime.

But then the Supreme Court rendered its Eighth Amendment decision in Atkins, so the trial court ordered a new hearing to make the factual finding of the defendant’s mental capacity, for the purpose of determining whether his death sentence should be commuted to a life sentence.

The defendant, Michael Bies, challenged that on habeas, and the federal District Court said the new hearing shouldn’t be held, and the defendant’s death sentence should be vacated, because the Ohio high court’s observation amounted to a finding of fact that Bies was retarded.

The state appealed that order, but the Sixth Circuit upheld it, holding that the Ohio high court had made a definitive determination of fact, and that determination entitled Bies to a life sentence. Any new hearing would violate Double Jeopardy, by putting Bies at risk of a death sentence again.

Writing for the unanimous Supreme Court today, in Bobby v. Bies, Justice Ginsburg stated that the Sixth Circuit didn’t understand what Double Jeopardy means. The Circuit “fundamentally misperceived the application of the Double Jeopardy Clause and its issue preclusion (collateral estoppel) component.”

Bies was not “twice put in jeopardy,” wrote Ginsburg. Ohio took no action to seek further prosecution or punishment. The new efforts were entirely of the defendant’s doing — rather than serial prosecutions, we have “serial efforts by the defendant to vacate his capital sentence.”

Also, the issues to be litigated aren’t identical. The first time around, the issue was whether his mental capacity mitigated the criminal offense. This time around, the issue is whether he is mentally retarded for the purposes of Atkins, which has not yet been decided.

Also, the Sixth Circuit failed to understand that “issue preclusion” is not a claim that the loser gets to bring. It’s only a claim that winners get to bring, so they don’t have to keep litigating determinations that were necessary to the outcome of a prior proceeding. Here, the Ohio high court did recognize Bies’ mental capacity as a mitigating factor, but that observation was not essential to the death sentence he got — it was the opposite, something that “cut against” it. “Issue preclusion, in short,” wrote Ginsburg, “does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties.”

So the upshot is that “the federal courts’ intervention in this case derailed a state trial court proceeding designed to determine whether Bies has a successful Atkins claim.” And the state hearing is exactly what the Supreme Court intended to happen when it wrote Atkins.

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Interestingly, in the briefs and arguments, the defense made a point of showing that Ohio wasn’t making much of an argument on AEDPA grounds (the Antiterrorism and Effective Death Penalty Act of 1996). The Supreme Court dismissed the entire issue in a footnote:

This case, we note is governed by the [AEDPA]. Bies plainly fails to qualify for relief under that Act: The Ohio courts’ decisions were not “contrary to, or . . . an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and were not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2).

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Although it may seem at first glance that the defendant got a raw deal here — he has to re-litigate an issue he already thought he’d prevailed on — the Court’s reasoning is sound. Double Jeopardy happens when the same sovereign tries to get a second chance to punish you for the same offense.

Here, the state wasn’t trying to do that at all. All Ohio was trying to do was determine whether new caselaw permitted it to let the original punishment stand, or whether the new law required it to reduce the original punishment.

You can see how easy it is to make the Sixth Circuit’s error, of course. It appeared as though the Ohio high court had made a factual determination that, by operation of the new caselaw, automatically required commutation of the death sentence here. So ordering the new hearing looks like the state trying to get a second shot at it. But really, as the Court pointed out, the issues are not the same. There never was any finding of fact that the defendant actually was mentally retarded for Eighth Amendment purposes, and that was precisely what needed to happen.

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And Ginsburg is the last person on the Supreme Court to rule otherwise, if there was any chance that the defendant ought to have prevailed.

We recall a case we worked on back in 1995 with the famed Carter Phillips. We worked through our holiday with him, well into the night, trying to get the Supreme Court to commute the death sentence of a mentally retarded convict. But this was pre-Atkins, and the Court rejected our application. Only Justice Stevens and Justice Ginsburg would have granted it. The case was Correll v. Jabe, No. 95-7283, and Mr. Correll became the last mentally retarded person to be executed in the Commonwealth of Virginia. Justice was not done then, and the case has since become the stuff of plays and campaigns, but had Ginsburg had her way then, we might now be discussing the Correll rule instead of the Atkins rule. So it would be dishonest to claim that she is callous to this defendant’s situation.

All in all, this is a good opinion. The clarification of what Double Jeopardy and issue preclusion mean was absolutely necessary. And while Mr. Bies’ situation cannot worsen, it actually stands a good chance of improving after his upcoming hearing.