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July 12, 2012

Commentator laments "A Day in the Life of the Death Penalty: July 18, 2012"

The title of this post is drawn from the headline of this potent commentary by Andrew Cohen now posted at The Atlantic. It gets started this way:

Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America.  Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage.  And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.

These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation's justice system have perversely interpreted recent United States Supreme Court decisions. Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules.

In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn.  In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court's ruling banning the execution of the mentally retarded.

Neither man claims to be innocent.  Neither man would ever set foot outside of a state prison even if he were to prevail on his claims.  In both instances, original fact-finders (the trial judge or jury) were deprived of material evidence that the Supreme Court has long expected of the "mitigating" phase of a capital case.  In both cases, incomplete and therefore inaccurate judgments were rendered.  Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent, to block Hill and Hearn from fixing the record.

July 12, 2012 at 01:05 PM | Permalink


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Has Cohen read Martinez? The point is that Arizona didn't let you raise IAC on direct. Texas does. QED.

Posted by: anon | Jul 12, 2012 1:42:38 PM


Posted by: Calif. Capital Defense Counsel | Jul 12, 2012 5:57:25 PM

The Supreme Court in Martinez said quite clearly that it was creating a "narrow" exception to Coleman that resulted from "Arizona’s decision to bar defendants from raising ineffective assistance claims on direct appeal." The Fifth Circuit held that Martinez is narrow and does not apply to states that have not made such a decision, just as the Supreme Court said.

Cohen calls it "perverse" for the Fifth Circuit to take the Supreme Court at its word. He has a perverse understanding of "perverse."

As for Georgia, the statute under attack now was hailed by the defense side as a wonderful step forward when it was enacted. The present attack on the once-hailed statute is a far better example of perversity.

Potent commentary? I suppose, in the sense that fish left out for three days is "potent."

Posted by: Kent Scheidegger | Jul 12, 2012 7:13:56 PM

As usual, Cohen is off base. If the Georgia Supreme Court was not following Atkins, SCOTUS would have granted cert. Also, there were no dissents from the denial, Andrew.

Posted by: DaveP | Jul 12, 2012 8:37:04 PM

Kent: What if the Georgia statute imposed a "beyond any / a shadow of a doubt" standard? You know, a similar standard to some death penalty statutes that forbid its application if some doubt exists that is not sufficient to acquit.

Are there any cases in Georgia where a defendant, either pre-trial or on post-convictoin, was able to prove retardation beyond a reasonable doubt?

Personally, I think the 11th got it wrong and would have been reversed in the Supreme Court, but for the loaded docket and/or the AEDPA posture of this case, which probably caused the cert denial.

Posted by: SashokJD | Jul 13, 2012 12:09:25 AM

▼ DAB ▼
Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent …

I would not elevate those to the level of jurist , albeit technically correct.

Nemo Me Impune Lacessit
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#30# 05:39

Posted by: Mister Blank | Jul 13, 2012 5:39:46 AM

Did Mr. Cohen perchance have the opportunity to write a piece titled,"A Day in the Life of the Death Penalty: June 11, 2001"?

Why not? That execution was a great deal more noteworthy than either of these.

Posted by: Bill Otis | Jul 13, 2012 9:45:27 AM

"What if the Georgia statute imposed a 'beyond any / a shadow of a doubt' standard?"

Given that no such statute was hailed by the defense side as a great advance (and none was before the Supreme Court when it surveyed statutes including Georgia's and found a consensus), that hypothetical is irrelevant to my point.

Posted by: Kent Scheidegger | Jul 13, 2012 1:29:26 PM

BTW, it's important to keep in mind that the burden of proof here is only for categorical exclusion from the death penalty. Georgia capital defendants have always been able to submit their mental condition evidence to the jury and argue that it is grounds for leniency.

Posted by: Kent Scheidegger | Jul 13, 2012 1:33:30 PM

the Supreme Court's ruling banning the execution of the mentally retarded.

Posted by: Heat Snapback | Sep 11, 2012 8:12:54 PM

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