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March 15, 2007

En banc Ninth Circuit recognizes right to die for death row defendants

Last year in this post, I described a Ninth Circuit panel decision in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006) (available here), as essentially deny the right to die to an Arizona death row defendant eager to waive all his appeals and be executed.  Today, as well covered by Crime & Consequences and How Appealing, "a fifteen-judge Ninth Circuit en banc panel, by a vote of 14-1, issued a decision that allows the death row inmate to withdraw the pending legal challenge to his death sentence." 

The new version of Comer is available here.  At C&C, Kent has this take: "The Ninth's increasing willingness to correct fringe panel opinions favoring criminal defendants is a welcome, if overdue, development.... If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth." 

UPDATE:  Dan Filler here at Concurring Opinions and Rick Garnett here at PrawfsBlawg have great (and very different) commentaries on Comer.

March 15, 2007 at 05:05 PM | Permalink


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» Judge Pregerson's Graphic Response To The Death Penalty from Concurring Opinions
Doug Berman, Rick Garnett, and Kent Scheidegger have all been blogging a bit about yesterday's 14-1 en banc Ninth Circuit decision upholding a competent defendant's right to waive further death penalty appeals. Kent calls it a welcome correction of a... [Read More]

Tracked on Mar 16, 2007 8:59:41 AM


Allowing potentially mentally ill, apathetic, depressed or self-counseled-hopeless case defendants to kill themselves is "favoring criminal defendants"? Some may wish to face the consequences of their crimes without delay and may do so with a sound mind, but how do we know what percentage that is?

More than half of all prison and jail inmates, including 56 percent of state prisoners, 45 percent of federal prisoners and 64 percent of local jail inmates, were found to have a mental health problem, according to a new study published today by the Justice Department's Bureau of Justice Statistics (BJS).

The percentage is likely similar for death row inmates even if their mental health problems were not severe enough to avoid the death penalty (and that's out of fashion anyway and so is very unusual).

Suicide by cop didn't work? No problem. There is always suicide by waiver. The government is eager to favor the so inclined.

Posted by: George | Mar 15, 2007 5:50:55 PM

Given that the issue is the Constitutional requirement of a case or controversy, it's hard to see how this "we should have jurisdiction because carrying out the sentence would be arbitrary" wins the day.

Also, how weak was the dissent, simply regurgitating the original majority opinion. Pathetic. And when an attempt to prevent the death penalty cannot even get Richard Paez' vote, you know there's a problem with the argument.

Posted by: federalist | Mar 15, 2007 6:23:52 PM

George, it's much higher than 50-60% on death row. I'd say ~80% - %95, depending on your definition.

Posted by: rothmatisseko | Mar 15, 2007 7:09:20 PM

"The District Court, after extensive proceedings and a meticulous analysis, found Comer competent. See Comer, 230 F. Supp. 2d at 1034-63. Because no party before this Court, including habeas counsel, disputes Comer’s competency, there is no issue before this Court as to Comer’s competency."

Posted by: Kent Scheidegger | Mar 15, 2007 7:37:50 PM

The competency standard is a joke, and is no measure of mental illness.

Posted by: rothmatisseko | Mar 15, 2007 8:20:17 PM

Kent, I'm not trying to factious when asking this, cynical would be more like it. Was the goal of Supermax ever to build a Gary Gilmore factory or was that just dumb luck? It's brilliant! A never ending supply of Gary Gilmores.


Thanks for the cite. Though I didn't find the case, the above article is fascinating. If Comer knew how his case is used politically, he'd likely change his mind, if it is sound enough.

Posted by: George | Mar 16, 2007 12:09:30 AM

George, at the end of the day, who cares? Who cares about the fates of these people--when we have the fate of this little boy: http://www.cnn.com/2007/US/03/15/missing.boy/index.html

Posted by: federalist | Mar 16, 2007 12:34:51 AM

I'm having Michael Ross flashbacks.

Posted by: Gideon | Mar 16, 2007 7:16:43 AM

Federalist, Whatever interests a “victim” of an alleged crime might have in a criminal proceeding, it is adequately represented by duly appointed (or elected) prosecutors, and those officers determine what position the state wishes to take. If people are not happy with their decisions, they are politically accountable.

While, of course, some people find it cute to argue that “victims” have a cognizable stake in criminal proceedings, they are reluctant to carry this argument to its logical conclusion, charges could be dismissed against a defendant if a victim fails to comply with discovery orders. Likewise, nobody seems to explore the corollary of the argument for victim participation, which is that those effected by the incarceration of a defendant would have a cognizable interest in arguing for his release. For example, a murderer that supports a family of five might be able to show (via their testimony) that putting him in jail for even one day would harm his family.

If the victims or their representatives wish to obtain damages, they are free to file a civil suit.

Posted by: S.couts | Mar 16, 2007 1:45:26 PM

What are you babbling about? The question is who really cares if some death row inmate is put down--not whether victims have some cognizable stake in prosecutions.

And please, learn the difference between "affect" and "effect".

And plenty of people do explore the corollary of the argument--most notable MVFR, which speaks of a whole new set of victims, i.e., the murderer's family.

Posted by: federalist | Mar 16, 2007 2:08:53 PM

federalist, once again you throw a crime victim into the mix in an effort at censorship. We can strive for justice all around and need not limit the goal to victims. That doesn't mean we don't care about children and are indifferent. (It is telling to even have to state this disclaimer, as if not including it condones the murder of children.) Frankly, I think too often victims are just another tool in the toolbox to dismantle the Bill of Rights. We could debate if it would be worth it or not but even questioning it is taboo.

Most alarming is that the perpetrators of these terrible crimes are arrested, tried and convicted, but that isn't good enough. The trend is to blame judges, juries, defense attorneys and the Bill of Rights itself. The hypocrisy is that any mitigating factor is ignored because only the defendant is to blame, which in the process is a covert attack on any liberal policies aimed at prevention. It is an excellent propaganda tool and keeps the monopoly of the debate on the side of the executive branch. It is also very dangerous to the foundations of our great country.

I see concentration camps in our future.

"The state must declare the child to be the most precious treasure of the people. As long as the government is perceived as working for the benefit of the children, the people will happily endure almost any curtailment of liberty and almost any deprivation." Adolph Hitler (Mein Kampf)

Justice Louis Brandeis once remarked "The greatest threat to liberty will come from government officials claiming to be acting for noble purposes."

The very same children we claim to protect would prefer to have an intact Bill of Rights protecting them when they are adults. No, no, no, they need a restored Bill of Rights to protect them now. To the criminal justice system they often are not children, but are adults.

"The road to hell is paved with good intentions." We are on the road to a preventative state and the accelerator is stuck to the floor. Time to turn off the ignition and coast a bit, and think. Is it really necessary?

Posted by: George | Mar 16, 2007 3:54:49 PM

an effort at censorship? That's a silly misuse of the word. I am not trying to censor you, and I don't have the power to do so.

"I see concentration camps in our future."

'nuff said. George, you are officially a moonbat, please adjust the tinfoil hat.

Believe it or not, I believe in the bill of rights and I think that the bill of rights should be enforced, as well as any statutory protections. What I don't believe in is expanding rights by the fiat of judges, and I think that it is always necessary to look at the costs of these judge-made protections afforded common criminals.

I believe that the American people have the right to govern themselves. We have the right to impose capital punishment, and quite frankly, I find the judicial straitjacket appalling. Why? More than anything because it interferes with democracy--something which will keep us from ever having these concentration camps. But I also believe in the freedoms given us by the Bill of Rights, freedoms which are taken away in the name of campaign finance reform, eminent domain etc. etc.

I want criminals punished--I don't want to censor moonbats like you--get the difference?

Posted by: federalist | Mar 16, 2007 8:44:41 PM

Don't lie. You were trying to stifle the debate and shift it to an irrelevant crime and silence discussions on the conditions in supermax and how those conditions contribute to the death penalty. No, you can't censor the subject, but you tried. SOP and plain as day.

Yes, concentration camps. We came so close but Hitler got impatient and messed it up. That news didn't bode well here in the good ol' U.S. of A, but history repeats itself once forgotten.

Moonbat? Chuckle.

Posted by: George | Mar 17, 2007 12:12:15 AM

"More than anything because it interferes with democracy--something which will keep us from ever having these concentration camps."

1) This county is a republic, not a democracy. 2) America has had concentration camps. We had them for years during WWII.

Having the right to vote for our leaders didn't stop concentration camps then, why would it stop them now? We're oh so much more enlightened now? Please.

Posted by: Anon | Mar 17, 2007 12:14:01 AM

The question is whether you care that Comer gets executed. And I don't mean some handwringing--i mean, would it really upset you? That's all.

Certainly, the death of the little boy bothers you more, does it not?

Posted by: federalist | Mar 17, 2007 1:39:39 AM

Comer is not the issue. He is just front and center and symbolic. If that is addressed to me, of course the death of the little boy or any child is more devastating, murder, drunk driving victim or accident. That is also irrelevant. Could anyone introduce his death into Comer's penalty phase? In effect, that is what you are trying to do and in the process you justify the abhorrent conditions in supermax that are so severe inmates would rather die.

BTW, regarding censorship, take your pick:

1 : a person who supervises conduct and morals: as a : an official who examines materials (as publications or films) for objectionable matter b : an official (as in time of war) who reads communications (as letters) and deletes material considered sensitive or harmful
2 : one of two magistrates of early Rome acting as census takers, assessors, and inspectors of morals and conduct
3 : a hypothetical psychic agency that represses unacceptable notions before they reach consciousness

Apparently, it is an unacceptable notion to debate supermax conditions because a little boy was murdered. Because of the respect and empathy due to murder victims and because we don't want to challenge them, no real debate is possible. It is high time to become as dispassionate as Couey's jury was and that jury would make good a good role model for lawmakers.

Posted by: George | Mar 17, 2007 2:11:36 PM

George, I'm with you in terms of focusing the debate on conditions. But you're wrong that the victim's death couldn't be "introduced" as sentencing - victim impact evidence is routinely introduced, and comparisons between teh offender and the victim are inevitable (though illegal). My bigger problem with federalist's argument is that it seems to assume we can ever end crime. People will always be murdered -- humans are animals and often act like it. Actually, maybe federalist's arguemnts just are just another incarnation of the human bloodlust.

Posted by: rothmatisseko | Mar 17, 2007 2:45:01 PM

Of course, we are enlightened animals and can also choose to act accordingly.

Posted by: rothmatisseko | Mar 17, 2007 2:51:58 PM

rothmatisseko , understood, and I evidently wasn't clear. The defendant's victims can be introduced; but not the little boy's murder which Comer did not commit and it would be irrelevant. That's the ploy, everyone committed that murder and is responsible, so supermax is cool. Many, many laws are passed based on this (lack of) logic.

Posted by: George | Mar 17, 2007 9:44:05 PM

Federalist, I noticed that you couldn't bring yourself to admit that you were wrong about concentration camps. Just wanted to point that out.

Posted by: Anon | Mar 19, 2007 12:12:51 AM

wrong? My statement was forward-looking, was it not?

By the way, years ago, i got a letter to the editor published decrying the internment of Japanese here in the USA.

It is possible, I guess, during wartime, that we could see an internment of enemy aliens--e.g., people who cheer for Hezbollah. But it would be nothing approaching Hitler's camps, nor, does our criminal law policy have a whole lot to do with what would happen in that eventuality.

Posted by: federalist | Mar 19, 2007 5:57:44 AM

No, Buck v. Bell wasn't criminal law. It was regulation, and this is what made, still makes it, so dangerous in the sense of skirting the Bill of Rights.

Regarding Singleton. I did a little research and the "movement" actually starts in the 80s with California's passing of Proposition 8, the Crime Victims Bill of Rights, which has little to do with victim's rights. Proposition 8 was evidently in reaction to the acquittal of Supervisor Dan White for the murder of San Fransisco Mayor George Moscone and Supervisor Harvey Milk. The so-called "Twinkie Defense" made headlines. There was no "Twinkie Defense," but the conservatives realized how gullible the public is and took advantage of that at every opportunity ever since. That trial was actually about homophobia because Supervisor Harvey Milk was openly gay. What a great piece of spin.

Next was Singleton and the passing of Proposition Prop. 115: The Crime Victims Justice Reform Act in reaction. Singleton was convicted on all counts and his conviction was affirmed on all counts [People v. Singleton (1980) 112 Cal.App.3d 418, caution, ugly reading]. I've not found a definitive answer to the question of why he only got a sentence of only 14 years, but it was not because of "liberalism." Evidently, the California legislature had not anticipated such torture and did not have a statute to cover it, or maybe an old statute got lost in the never-ending lawmaking process during an either Republican or Democratic session. What did Proposition 115 really accomplish?

"Proposition 115’s new discovery provisions create an informational
imbalance that weakens preliminary hearings as pretrial screening
devices and lessens the reliability of guilty pleas. The informational
imbalance is caused by postponing discovery to a period in
anticipation of trial, limiting defense access to information from law
enforcement sources, and curtailing judicial discretion to facilitate
discovery at early stages of the criminal justice process. The discovery
provisions are only internally balanced; they disregard the vastly
unequal access to resources independent of formalized discovery
provisions. As a consequence, the fog of nondisclosure has returned
to obscure over three decades of clearer vision when California courts
began to recognize the relationship between pretrial discovery and
“legal truth.” More chillingly still, this fog may continue to drift
over to other states as well." [LESS RELIABLE PRELIMINARY HEARINGS
by LAURA BEREND, Professor of Law, the University of San Diego School of Law.]

What's more, the definition of torture expanded beyond the Singleton case facts exponentially , which may or may not be a good thing, but it is doubtful the conservatives backers anticipated its use by feminists in regards to spousal abuse.

Then came California's Three Strikes Law. Many people actually care about victim's rights, including many who fight for these laws. But for others the goal is more political and victim's rights is a secondary issue. Then there are some who undoubtedly circle above like vultures waiting for the next high-profile case. It would be informative to follow the money on some of these movements. Would an investigative reporter dare to do so?

Posted by: George | Mar 19, 2007 2:54:07 PM

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