November 29, 2010
California capital case prompts notable statement supporting denial of cert
In with orders and other matters coming from SCOTUS this morning is this statementrespecting the denial of the petition for writ of certiorari in Gamache v. California, No. 10-5196, authored Justice Sonia Sotomayor and joined by Justices Ginsburg, Breyer and Kagan. As these excerpts highlight (with most cites omitted), this (unusual?) statement provides still more evidence of the extra special attention given to capital cases by at least some Justices:
After a jury convicted Richard Gamache of first-degree murder and sentenced him to death, Gamache’s counsel and the trial court learned that during deliberations, court personnel inadvertently gave the jury a videotape that had not been admitted into evidence. During its deliberations, the jury watched the video twice in full and a third time inpart before reaching its verdict. The video showed a police interview of Gamache and his codefendants on the day ofthe murder in which Gamache confessed to the crime in graphic terms....
On appeal, the California Supreme Court held that the jury’s access to the tape was indisputably error, ... [but seemed to have improperly] allocat[ed] the burden to the defendant to demonstrate prejudice.... However, it appears from the court’s recitation of the evidence and its analysis that the court found that theerror at issue was harmless, regardless of the burden allocation....
I nonetheless write respecting the denial of certiorari because the allocation of the burden of proving harmlessness can be outcome determinative in some cases. With all that is at stake in capital cases, cf. Kyles v. Whitley, 514 U. S. 419, 422 (1995) (“‘[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case’” (quoting Burger v. Kemp, 483 U. S. 776, 785 (1987)),in future cases the California courts should take care to ensure that their burden allocation conforms to the commands of Chapman. In this case, however, because it seems that the burden allocation would not have altered the court’s prejudice analysis, I do not disagree with the denial of certiorari.
I cannot recall many instances in which a group of Justices have signed on to a statement supporting the denial of cert except when other Justices' have dissented from a cert denial. In this (unique?) setting, it appears that the three Justices who have been most vocal in expressing concerns with death penalty adminstration, with new Justice Kagan along for the ride, were eager to remind the California Supreme Court and other lower courts that they will be continuing to "search for constitutional error with painstaking care ... in [every] capital case."
November 29, 2010 at 10:44 AM | Permalink
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Not unique. See Emmett v. Kelly, 552 U.S. 942 (2007).
Posted by: arfarf | Nov 29, 2010 10:54:13 AM
Of course. Every effort for the lawyer customer. Nothing for the victim of the lawyer customer.
Posted by: Supremacy Claus | Nov 29, 2010 10:59:31 AM
Justice Kennedy has been voting against the DP in cases involving "vulnerable" groups such as youth and the retarded. He was also anti-DP in Kennedy v. Louisiana. That he stayed with the conservatives here is a modestly good sign that he is not ready to tank the DP as applied to adults of sound mind. Maybe he read about the Petit murders in Connecticut.
With Kennedy, you always wonder, of course. But the precedent in favor of the DP is so strong that Kennedy might actually respect it.
Posted by: Bill Otis | Nov 29, 2010 11:46:46 AM
Well I think we can see where Kagan is going on this. Just as we expected of course.
Posted by: DaveP | Nov 29, 2010 11:59:21 AM
shorter version of opinion: "try raising this issue again with a less odious defendant"
Posted by: virginia | Nov 29, 2010 12:50:11 PM
"On appeal, the California Supreme Court held that the jury’s access to the tape was indisputably error, ... [but seemed to have improperly] allocat[ed] the burden to the defendant to demonstrate prejudice.... However, it appears from the court’s recitation of the evidence and its analysis that the court found that theerror at issue was harmless, regardless of the burden allocation...."
It is this type of CRIMINAL STUPIDITY out of the mouths of judges lately that has people SHOOTING them!
This whole trial should have come to a screeching halt and be redone the min this was was discovered and only a idiot politican or lawyer/judge would think diff.
Posted by: rodsmith | Nov 29, 2010 1:39:30 PM
Funny that the Gang of Four can spend the time to grade the California Supreme Court's exam, but cannot put their reasons for upholding the Landrigan stay in writing. Why am I not surprised?
Of course, I can see this statement by Sotomayor actually cited by the state as authority for harmless error. Thanks "wise Latina."
Posted by: federalist | Nov 29, 2010 5:33:42 PM
personally i think decisions NOT in writing or NOT released publicly are not even LEGAL.
Posted by: rodsmith | Nov 30, 2010 4:03:21 PM