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August 10, 2006

Capital justice delayed is...

I have chimed in recently here about my concerns about efforts to block the execution of capital "volunteers," death row defendants who no longer wish to prevent the state from executing them.  An interesting twist on these issues comes from the Ninth Circuit today in an order emerging from Comer v. Schriro, No. 98-99003 (9th Cir. Aug. 10, 2006) (available here).

Apparently, today's order response to defendant's motion again to dismiss his long-pending habeas appeal in order to allow the state of Arizona to proceed with his execution.  Here are excerpts from the denial of the defendant's motion: 

The case creates an issue that denigrates constitutional rights, thus the delay in reaching a decision. Comer wants to be executed. I maintain that the right to die is not synonymous with the right to kill. Comer's appointed habeas corpus counsel demonstrated serious due process violations by the judicial system against Comer that must be answered.  The most troubling incident being that at his sentencing hearing in state court, Comer was brought into the courtroom battered, shackled, and naked except for a towel over his genitals.

Here is a portion of Judge Rymer's dissent:

We are now mid-way through 2006 without a ruling on the motions on which we reserved judgment on June 6, 2000. More than a year has gone by since oral argument.  Not surprisingly, Comer has filed papers complaining about this court's inaction....

Comer asks that this panel either rule or turn the case over to another panel. The state agrees that the court should expeditiously rule on the matter before it. So do I.  There is no reason for not ruling; we have had plenty of time to give full and fair consideration to all sides of all issues. Comer and the people of Arizona are entitled to a decision, and we have a duty to render one.

I have an inkling that we may be hearing more about this case in the days ahead.

August 10, 2006 at 03:06 PM | Permalink


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The shackling concern seems largely illusory. Comer's sentencing occurred in front of a judge, not a jury. Thus, the prejudicial aspects of shackling that might be of concern in a jury proceeding were not present. Furthermore, to the extent the court thinks the issue was governed by
the Supreme Court's recent decision in Deck v. Missouri, a claim about shackling during a sentencing hearing would at a minimum certainly not be cognizable on federal habeas because it would be a "new rule" not retroactive to Comer's case under Teague v. Lane.

More troubling is the failure of the court to follow its own previous language in its prior Comer opinion: In Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000) Judge Ferguson wrote that “[a]lthough Mr. Comer’s appeal raises serious questions about the constitutionality of his conviction and sentence, we must first decide the instant motions to dismiss the appeal.” Id. at 912. It does not appear that the 9th Circuit is following its own advice and dealing at the threshold with Coomer's desire to end this litigation.

Posted by: ward | Aug 10, 2006 3:53:06 PM

Regarding the title of the post, I would not follow the ellipses with "capital justice denied," for the simple reasons that if there are constitutional infirmities in the case all that is denied is capital injustice, indeed capital murder by the state, its actors, and its citizens.

Posted by: | Sep 6, 2006 4:27:10 PM

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