Death, Texas, and SCOTUS

More on Topic of Death Penalty (from Texas, via SCOTUSblog--many thanks!)

Robert C. Owen of the Capital Punishment Center at the University of Texas Law School, has told the Court of the Fifth Circuit's 9-7 en banc ruling on Dec. 11 in the case of Nelson v. Quarterman (Fifth Circuit docket 02-11096). Owen argued in his motions to vacate that "the en banc court in Nelson has decisively changed course, rejecting the prior, stunted Fifth Circuit reading [of the key Supreme Court precedent] in favor of this Court's own approach" in more recent precedents. The Circuit Court, the motion added, has repudiated the position that both Brewer and Abdu-Kabir have been challenging. "The need for this Court's intervention no longer exists," Owen contended. The tension between the Supreme Court and the Fifth Circuit, he said, "has been resolved." (Identical arguments were made in the two cases.)

The state, however, argued that the Nelson decision is flawed, failing to take account of the Supreme Court's more recent ruling on the controversy. And, the state contended, the Nelson ruling is limited to its facts, and involves a different kind of mitigating evidence. Moreover, the Nelson ruling itself is going to be challenged in a new petition to the Court by the state, according to its lawyer, Edward L. Marshall, deputy chief of the state's Postconviction Litigation Division in the state attorney general's office. Nothing would be gained by sending the Brewer and Abdul-Kabir cases back to the Fifth Circuit, Marshall said.

The Fifth Circuit Court of Appeals on Wednesday (Dec. 27) denied request for en banc consideration expressly to (try to) resolve the question of the Supreme Court's jurisdiction over the matter by making decision "final".

And, that's not all...for the rest of the controversy, link there. (How Appealing/Howard Bashman--thank you!)

This is big too (from Texas): (Thanks to Karl Keys--Capital Defense Weekly--link at right)

Although I have been repeatedly calling 2006 the “Year of the Needle” it may well be remembered as the year the Texas death penalty was saved. As I am prepping up the year end review in caselaw I am stunned at the developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso

INMATES ON MYSPACE: IS THE FIRST AMENDMENT MORALLY REPREHENSIBLE?

Wired has an interesting comment on the death row inmates posting diary entries on Myspace. How dangerous is that? So they are supposed to shut up and die, but for 25 years?

Bush Wiretapping Program Violates Federal Laws and the Constitution, Says ACLU
-- The ACLU issued press release that begins, "The American Civil Liberties Union and the ACLU of Michigan today urged a federal appeals court to uphold a lower court ruling declaring the government's warrantless National Security Agency wiretapping program illegal, calling the government's assertion of unchecked spying powers 'radical' and a threat to American democracy."
-- Brief for Appellees filed in the NSA wiretapping appeal, pending before the U.S. Court of Appeals for the Sixth Circuit, is available by clicking here. Thanks Howard Bashman

Texas Court of Criminal Appeals (TCCA), that State's highest court in criminal cases, holds that President Bush was powerless to force the Texas judiciary to disregard its rules of procedural default to consider on the merits a Mexican death row inmate's Article 36 Vienna Convention claim. The Texas Court of Criminal Appeals today issued its ruling in Ex Parte Jose Ernesto Medellin. Access the lead opinion at this link, while the concurring opinions can be accessed here, here, here, and here. For more click this, at SCOTUSblog.

When George Will writes, he's news. His column in the Washington Post, found here, is about the recent Belmontes decision. Kent Scheidegger reactions are here at Crime & Consequences. Brian Tamanaha has thoughtful ruminations on jury instructions in the wake of Belmontes here at Balkinization. Thanks SCOTUSblog.

WHEN IN THE DISTRICT OF COLUMBIA
Go see
Prison Art Gallery
1600 K Street NW
Suite 501
Washington, DC
202-393-1511

MONDAY'S BELMONTES OPINION

Whether or not one "has" religion should/not affect sentence in this capital case? And does that California "Factor K" adequately allow jurors to consider all mitigating factors? (I.e., Skipper type mitigating evidence?) Exactly what did the jury understand "factor k" to mean? Even the prosecutor was "incorrect" about what he thought it meant, and said so in court; so the jury was understandably thus mislead and failed to give the jury instructions the very sum and substance the majority gave to it. Oh well. Justice Stevens dissenting, joined by the usual three on the left. And apparently, very unusual for SCOTUS to lead off with a 5-4 split. What does this mean, grasshopper?