Sixth Circuit

Sixth Circuit Issues Two En Banc Habeas Decisions in Four Days

In two slightly different line-ups, the en banc court denied two habeas claims 9-7.

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Last Friday and again yesterday the U.S. Court of Appeals for the Sixth Circuit issued an en banc decision in a capital habeas case. Both decisions were closely divided, though each in a slightly different way, and both went against the habeas petitioner.

On Friday, in Hill v. Shoop, the en banc court affirmed the district court's denial of Danny Hill's habeas petition, rejecting Hill's argument that he was ineligible for the death penalty because he is intellectually disabled. Specifically, the court concluded that the Ohio court's application of Atkins v. Virginia did not represent an "unreasonable" application of clearly established federal law (as required by AEDPA). Hill had argued that the evidence of his intellectual disability presented at his original trial (prior to Atkins) satisfied the Atkins test, whereas the court concluded that it was not unreasonable for a later state court to reach a different conclusion in a subsequent (post-Atkins) hearing, based upon the evidence before it at the time.

The court split 9-7 in Hill, largely along traditional ideological lines. Judge Gibbons wrote for the court, joined by Chief Judge Sutton and Judges Griffin, Kethledge Thapar, Bush Larsen, Nalbandian and Readler. Judge Moore wrote the dissent, joined by Judges Merritt, Cole, Clay, White, Stranch and Donald. [Note, senior judge Merritt participated because he was on the original three-judge panel, and Judge Murphy recused, which is why the ideological split divided the court 9-7 instead of 10-6.]

Yesterday, the Sixth Circuit issued another en banc decision in a capital habeas case, which also split the court 9-7. In Taylor v. Jordan, the court rejected Victor Taylor's arguments that his death penalty conviction should be overturned because the prosecutor used peremptory challenges to strike potential jurors from the jury pool based upon race (in violation of Batson v. Kennedy, which was decided at the time of Taylor's conviction) and an accomplice's statement was admitted in violation of the Confrontation Clause.

While Taylor also split the court 9-7, the Court did not split along traditional ideological lines and there were multiple dissenting opinions, not all of which were joined by all of the dissenting justices. Judge Kethledge wrote for the court, joined by Chief Judge Sutton and Judges Batchelder, Cook, Bush, Larsen, Nalbandian, Readler, and Murphy. [Cook and Batchelder, although senior, had sat on the initial panel; Judge Thapar recused.]

The principal dissent on the Batson issue was written by Judge Griffin, joined by Judges Gibbons, Moore Clay, White, Stranch and Donald. Judge Cole wrote a dissent on both issues, joined by Judges Moore Clay, White, Stranch and Donald. Judge White dissented, joined by Judges Moore, Clay, Stranch, and Donald in full, and Gibbons in part, and Judge Moore dissented, joined by Judges Clay, White, Stranch, and Donald. So, the Court split 9-7 on the Batson issue, but 9-5 on the confrontation clause issue (as Judges Griffin and Gibbons did not join any of the dissents on that point).

The Batson issue in Taylor is particularly difficult, and split the court on somewhat untraditional lines. One source of the difficulty is that Batson was decided just after the return of the jury's verdict in Taylor's case, but before the trial judge entered the judgment. A further source of contention was the fact that the prosecutor, while using some of his peremptory challenges to strike Black jurors, also objected the defense's efforts to strike several Black jurors for cause (including one who ended up on the jury).

The court's majority concluded that Kentucky trial courts satisfied the highly deferential standard of review provided by AEDPA. Judge Griffin, on the other hand, concluded Taylor was simply "Batson v. Kentucky revisited. Judge Moore offered stronger words, declaring that the court's decision "confirms a largely unspoken truth: the once-great write of habeas corpus now means nothing," and ending her decision with the terse "I dissent."

Hill and Taylor were not the only en banc opinions from the Sixth Circuit this month. On August 5, the en banc Court decided Bristol Regional Women's Center v. Slatery, concluding that Tennessee's law imposing a 48-hour waiting period on women seeking to obtain an abortion did not constitute an "undue  burden" under Casey. This decision was also 9-7. Judge Thapar wrote for the court, joined by Chief Judge Sutton, and Judges Griffin, Kethledge, Bush, Larsen, Nalbandian, Readler, and Murphy. Judge Moore wrote the principle dissent, joined by Judges Cole, Clay, Gibbons, White, Stranch, and Donald. Judge Bush and Judge Gibbons also wrote separate concurring and dissenting opinions, respectively.

That's three en banc opinions from one circuit in less than one month.

NEXT: The Top Three Law Reviews Strongly Prefer Articles Under 25,000 Words. But Their Articles Consistently Exceed 25,000 Words.

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  1. Who is more dangerous? A psychotic killer who killed random people or a paid mob assassin, who kills only one target for which he has been paid? Which would feel safer with as a cell mate?

    As usual, the lawyer dumbass has it backwards. Killers with mental illness or with ID should be fast tracked to the death penalty. Instead, these far more dangerous people are protected, and the business killer with good self discipline is fast tracked

    1. Open season and immunity for the summary execution of a Trump supporter.

      If the life of career criminal, overdosing addict, George Floyd, is worth $27 million, her life is worth $100 million.

    2. I agree, the lawyers want to be left alone pursuing their rent seeking failed business. They refuse to face the utter failure of every self stated goal of every law subject. Fixing this giant problem would not be boring.

      1. Yea it’s just that the VC has published zero articles on this subject like they are purposely avoiding it. And in its place we get stuff that no one cares about.

        Jonathon Turley is a pretty established guy so it just seems like a VC thing.

  2. It is truly odd that the 6th Circuit continues to have such internal problems with AEDPA and habeas.

    That said …. SOAPBOX. I agree with the statement by Blackmun about tinkering with the machinery of death. But I think we are going about this all wrong. IMO.

    The death penalty is constitutional. Period. It’s … you know, in the actual text. All the layers of review, all the layers of appeal … they don’t make it better in the sense of reducing error to 0%. There will be mistakes.

    Either we are okay with it, or we aren’t. But that’s a legislative choice. All the court-enforced safeguards aren’t doing anything except adding cost and complexity- we still put people to death, but we aren’t addressing any problems, just creating weird procedural hurdles.

    1. I no longer support the American death penalty. It is a $billion lawyer scam, yielding no benefit. It should be ended at the national level. The number of fentanyl overdose deaths, 83000, has exceeded the dreams of the most extreme death penalty advocates by 2 orders of magnitude. It is a major factor in the rapid drop in common law crime. Each of those deaths prevent 200 felonies a year for the expected lifespan that has been ended.

      I support the Italian death penalty. A troublesome prisoner is causing headaches for everyone. Guard waves a carton of cigarettes. He is stabbed 50 times. The investigation finds, he committed suicide. The suicide rate inside the Italian prisons has been deemed a crime against humanity by some supercilious Euro trash agency.

    2. As a matter of constitutional law, I agree with you that the DP is constitutional.

      As a matter of policy, I’ve seen far too much of the kind of screw ups the legal system is capable of making to believe that the state should be trusted with deciding who lives and who dies. It’s amazing to me that conservatives, who never have a kind word for government bureaucracy in any other context, somehow assume that the state magically acquires the wisdom of Solomon when it’s time to decide who lives and who dies.

      1. I agree as a matter of policy that we shouldn’t have a death penalty. But this is the worst of all worlds.

        Sometimes, my preferences aren’t the same as everyone else’s. If the people want their death penalty, let them have it. I will work against it at the ballot box.

      2. A car crashed, stop all driving until no crash can take place. A pedestrian fell, hit his head, and died. End all walking until the problem of tripping is solved. Someone fell out of bed, and broke a hip. End all laying down until the problem of falling out of bed is solved.

        The left does not argue in good faith. It continually violates the Exception Fallacy. What is the fraction of people put to death who were innocent?

        1. Daivd, the difference between the death penalty and all your examples is that your examples are all accidents that nobody intentionally caused. Unlike the death penalty, in which the state coldly, deliberately, and intentionally kills someone. And I think intentional acts are qualitatively different from accidents. And it’s exacerbated by the state’s unwillingness to adequately fund the public defenders murder defendants typically end up with.

          I don’t actually have any philosophical objection to the death penalty. If there’s an argument for why the world is worse off for Ted Bundy no longer being among the living, I don’t know what it would be. I just don’t think the state can be trusted to fairly implement it. Don’t forget, two states — Maine and Rhode Island — are without the death penalty because they actually did execute people who turned out to be innocent, and their legislatures then responded by abolishing the DP altogether. Kansas also abolished the death penalty following the execution of someone who turned out to be innocent, though Kansas subsequently reinstated it.

          1. Kry. I agree that any death penalty exoneration is horrifying. The rate is 4/year. Should those be considered to be accidents as well, unless there was prosecutorial misconduct, which would be intentional? If misconduct resulted in a false death penalty, end the immunity, and treat it as an attempted murder of the accused. Arrest any lying police or prosecutor.

            1. I would happily arrest, convict, and disbar any prosecutor or police officer who lies. But what happens far more often is confirmation bias — the police hone in on the person they think did it, and then, being human, discount or ignore contrary evidence. Sometimes witnesses lie and the police believe them. Sometimes an investigation is ended before it should have been; it’s impossible to know what other evidence may be out there if you’ve stopped looking. There’s a long list of reasons why someone might end up wrongly convicted. Some of them, like corrupt prosecutors, are evil; others, like sloppy investigations, are just human nature at work.

              1. I bash the Rules of Criminal Procedure for multiple violations of critical thinking and their divorce from reality. They need to be completely rewritten by the legislature. I would ban eyewitness testimony that has no physical corroboration. I would ban any argument by authority. I would even ban juries. Their vote is just a measure of likability, and sociopaths have charm. The system is totally garbage.

                A judge with professional responsibility and liability for malpractice should decide the verdict and the sentencing. Appellate courts should have their own expert investigators review the facts of the trial. Appellate courts should review and verify the facts on their own. What we have now is crazy, stupid, ineffective, unfair. and harmful.

      3. “As a matter of policy, I’ve seen far too much of the kind of screw ups the legal system is capable of making to believe that the state should be trusted with deciding who lives and who dies.”

        Well, then, I guess you should be in favor for life in prison for everyone convicted of a violent crime, since letting all those people out gets a lot of innocent people murdered every year (look up the number of people murdered each year by someone with a previous criminal record).

        That said, that’s a great libertarian argument for cutting the size of the Federal government by 90%, because the Federal gov’t decides that all the time.

        As do State governments.

        But if you’re going to have a criminal justice system, you’re going to have the government shoving guns in people’s faces and saying “do what we say or we’ll kill you” (it’s called “arresting people”) all the time.

        And being shoved into the hellhole that is prison and spending 40 years there is a huge travesty if you’re innocent, and there’s no way to give you back those years of your life if we figure out later that the conviction was in error. So if we’re going to be tied up into inaction by fear of error, we need to just junk the whole justice system. And go back to people just killing anyone they think has harmed them.

        Which I’d submit would not be an improvement

        1. Greg, maybe you could sweep up all that straw you just tossed before it catches fire.

          1. Ah, so you’re going to completely ignore all the problems with your arguments, rather than try to address any of them? Ok

            1. Just as soon as you identify any actual problems with my argument that aren’t strawmen I’ll be happy to respond.

              1. 1: Government is entirely in the business of deciding life and death
                2: Being wrongly found guilty of murder and getting a life in jail sentence is abotu 90% as bad as getting wrongly convicted and executed.
                But you’ve got a much better chance of getting exonerated if you get the death penalty
                3: People in jail on a life sentence can and do kill other people (you know, the other people who have the misfortune to be in prison with them. Some of whom are innocent). People who’ve been executed do not
                4: Which is a greater tragedy?
                A: Person wrongly executed by the State
                B: Person robbed, raped, and murdered by a random thug
                I vote that B is the greater tragedy, the greater wrong. And that if you want to make life better for Americans, focus #1 is on decreasing the Bs that occur 100 to 100 times as often as the As

                1. 1. Not directly. The government makes decisions that result in some people living and other people dying, but not with the surgical precision with which it decides to give John Q. Murderer a lethal injection.

                  2. Not sure about that. If I had a choice between spending fifty years in a cage, with the risk of being assaulted, or a quick lethal injection, I might very well choose the needle. The Manson family is now old men and women; every three years they cry and beg and plead with the parole board to let them loose, and they always get sent back to prison; they’re being punished far more harshly than a relatively quick execution would have been.

                  3. But that’s only half the calculus; every innocent person executed cancels out someone who was killed by a murderer who wasn’t executed. But then, we punish people for what they’ve done, and not for what they may do in the future.

                  4. The death of any innocent person is a tragedy, but I would say it’s worse when the state does it because, well, it’s the state.

                  1. 2. Not sure about that. If I had a choice between spending fifty years in a cage, with the risk of being assaulted, or a quick lethal injection, I might very well choose the needle.

                    Only you can speak for yourself, though even you might not know what would happen in such a hypothetical. But we do know that people actually given that choice virtually always fight for the former rather than the latter.

                  2. 1: So what? Dead is still dead. This is just repackaging the complaint against the death penalty, which is you don’t want the government directly killing people, and guilty / innocence has nothing to do with it

                    3: We’re not intentionally killing innocent people. We’re looking at reality, and saying “if we do this, fewer innocent people will die than if we do that”. So if saving innocent lives is your goal, you do “this”. And if saving innocent lives isn’t your goal, then stop claiming that it is

                    4: This is the core of the matter, and where you’re horribly wrong. one innocent person being killed by the State with a lethal injection is far less of a tragedy than one innocent person being raped, beaten, disfigured, and then murdered.

                    And it’s not one for one, it’s one for hundreds

      4. “somehow assume that the state magically acquires the wisdom of Solomon”

        Nobody believes that.

        The death penalty is needed to punish the worst of those who think they, without judge or jury, can “decide who lives and who dies”.

        1. And if you could confine it to the worst, I don’t know that I’d have any real objection to it.

          1. Well, let’s review Taylor’s crimes, shall we?

            Two 17 year old boys (white, if it matters) were driving to a football game at a rival high school, in September of 1984. the got lost, and stopped at a restaurant to ask for directions.

            Unfortunately, there they met Victor Taylor and his cousin, George Wade, who were then ages 24 and 23 (they didn’t die that night, so their ages have kept growing, unlike the boys who will never get past 17). Taylor pulled a gun on them, he and Wade got into the back of their car, he had them drive to a deserved alley, where Taylor and Wade robbed, tied up, and Taylor anally raped the two boys.

            Was this a racially motivated hate crime? I’m sure that would be claimed if the skin colors were reversed. But they were tried in a more innocent time, where the issue was actual crimes, rather than thought crimes.

            Unfortunately, Wade referred to Taylor by name while he was anally raping the two boys. After walking away, Taylor decided that “dead men tell no tales”, so they went back and Taylor shot them both, execution style.

            Then they went home and bragged about it, celebrating the fact that they’d murdered two “white boys”.

            So, Krychek_2, is that close enough to “the worst” for you?

            1. You do understand the concept of separate questions, don’t you?

              Whether the death penalty is good policy is a separate question from, if we do have the death penalty, which crimes deserve it. That I agree with you that Taylor is one of the worst and would shed no tears if he was executed doesn’t preclude me from also saying that I favor abolition.

              I should stick to my diet, but if I’m not going to stick to my diet, ice cream is my preferred indulgence. Those two points are not contradictory. Likewise, we should not have the death penalty, but if we do have the death penalty Taylor is an appropriate candidate, is also not contradictory.

              1. But you didn’t say “If we’re going to have the death penalty, we should confine it to the worst.” You said “if you could confine it to the worst, I don’t know that I’d have any real objection to it.”

                Who are some of the people sentenced to death in the last 40 years or so whose murders don’t seem all that bad to you?

          2. “And if you could confine it to the worst, I don’t know that I’d have any real objection to it.”

            We do that. The only people who get executed are 1) murderers of police officers 2) murderers of multiple people and 3) those who kidnap, rape and/or torture during the murder.

            So, welcome to the pro-death penalty side.

            1. Except for all the innocent ones, yeah.

              1. “all the innocent ones,”

                All the victims are innocent.

                1. Which does not mean it’s cool to execute a few innocent people, just as a sacrifice to all the victims.

                  You ghoul.

                  1. “few innocent people

                    Name one. Then name another.

                    “You ghoul.”

                    Right back at you bucko, You value the lives of the murder over the victim people

                    1. You know we don’t check once they’ve died – what’s the point?

                      But given the number of death-row exonerations, you’d have to be really dense to think everyone there belonged there.

                      You’re not that dense; you just don’t care.

                      You value the lives of the murder over the victim people
                      The death penalty doesn’t bring people back to life you utter lunatic.

                    2. “The death penalty doesn’t bring people back to life you utter lunatic.”

                      It tells the families of the victims that we value the lives of the victims.

                      You cry for all the supposed innocents we excecute but cannot name even one.

                      Fact is we don’t execute the innocent. We execute the guilty.

                    3. I explained why we can’t name any. You just don’t care, because you’re so into this blood ritual that your telling the victims’ families what they want and feel.

                    4. Timothy Baldwin, Louisiana. Cameron Wilhingham, Texas. The two innocent men executed by Rhode island and Maine that then caused Rhode Island and Maine to abolish the death penalty.

                    5. And no, I don’t value the lives of murderers over the lives of victims. I just think the state should be held to a higher standard.

                    6. Name one.

                      Cameron Todd Willingham.

                    7. I shoulda done my research – there are 3 names right there.

                      And as I noted, since there is rarely a postmortem investigation, those 3 names are really saying something.

              2. And if you’re going to start a policy of “the government may never do anything that harms an innocent person”, you’d do well to start at vaccine mandates.

                Because some people will have bad reactions to any vaccine. Some of those people have reactions so bad they die from them.

                I’d be willing to bet you a great deal that more “innocent people” have died from getting the Covid vaccine, than have been executed by the government in the US in the last 20 years.

                Probably still holds if we look at the last 50 years.

                So, are you a “ghoul”, eagerly sacrificing all the innocent people who died from the Covid vaccine in order to achieve your policy goals?

                It’s an honest question

                1. And here’s an honest answer: When someone is executed, he died because the state intentionally, deliberately and coldly, and with premeditation, decided to kill him. When someone dies from a vaccine reaction, it’s unfortunate, but nobody did it on purpose. Do you honestly not see the difference?

                  And if you’re the state, and you’re going to intentionally and deliberately kill someone, you better be right.

                2. I’d be willing to bet you a great deal that more “innocent people” have died from getting the Covid vaccine, than have been executed by the government in the US in the last 20 years.

                  Yes, but that’s because you’re not very bright. The number of deaths from Covid vaccination can be counted on one hand.

        2. That’s weird, cops are rarely charged let alone face capital punishment.

          1. “cops are rarely charged let alone face capital punishment”

            Most murders occur in cities with liberal Democrats as the local DA. So talk to them.

            1. It’s almost as though not every problem is caused by one side or the other!

              1. One side dominates the decision making machinery. So any flaws are that side’s fault.

                1. Lots of stuff – both good and bad – isn’t partisan!

                  In this case, it’s pretty clearly structural.

                  Like, come on, dude, you can’t pretend your side is blameless when your side – you included! – goes to bat for the cops for every single time a cop shoots an unarmed black man. And resists criminal justice reform.

                  1. “structural. ”

                    If so, its a structure administered by your side in every city.

                    “resists criminal justice reform”

                    Every current “reform” is anti-citizen and pro-criminal.

                    1. It’s like you’re working very hard not to engage.

                      I’m not holding Dems blameless – but bucking police unions and culture of police blamelessness and years and years of the drug war? That’s not Dems, dude, that’s all of us.

                      But it’s not a problem you want to fix. You’d rather try and make partisan hay, whether merited or not. Because that’s your priority.

      5. It’s not that I believe it takes the wisdom of Solomon, I would prefer that nearly all felonies and a good number of current misdemeanors be capital offenses, basically anything more serious than the theft of a couple hundred dollars. And after conviction it then be up to the convict to convince the trier of fact that they are for some reason particularly unsuited for execution.

        1. Well that’s insane.

      6. It’s not that I think the state magically acquirers the wisdom of Solomon when it’s time to execute. It’s that even those on death row who may be innocent of the crime for which they’ve been convicted are usually black thugs who have a long history of violence and convictions, even if the one that put them on death row is mistaken. So I’m okay with them being killed.

    3. I think there’s a difference between being it being constitutional in the abstract under the 8th Amendment (even under an evolving standards test) and it ever being administered in a constitutional manner that would satisfy equal protection. I mean we’ve had 40 years of data after McClesky demonstrating that whether anyone gets the death penalty is based both on random factors like which county does the charging and invidious ones like race, with the race of the victim being a key factor.

      1. Nope. Don’t buy that.

        Really, I don’t. I can agree (and I do!) that the criminal justice system has systemic bias. I think to disagree with that requires levels of blindness and obstinacy I lack.

        I can agree that sentences are invariably the product of factors that will vary depending on locality, prosecutors, and other inputs; but this is true of all sentences, not just the DP.

        But in the end, the DP is constitutional. It just is. It literally is in the Constitution. All the tinkering we are doing doesn’t make any difference, because it’s all procedural; our appellate legal system doesn’t care about the substance (innocence), it cares only about the procedure applied. And all the procedural hurdles don’t get rid of the DP; instead, they just make it insanely expensive and also make it even more arbitrary. So people who are against it can console themselves that it takes forever, and people that are for it can say, “Hey, at least it’s there.”

        The only way that we can have a real debate about this and resolve this the way it should be (through the legislative process) is by acknowledging that it is legal, and deciding if this is something that we (as a people) want to do.

      2. But your argument equally applies to imprisoning and fining people. Under your argument, while it’s theoretically possible to convict a person of a crime and inflict a punishment – any kind of punishment – in the abstract, it can’t be constitutional to actually enforce any kind of criminal law in leactice. Surely you’re not suggesting that the criminal justice system is completely unbiased for everything else and the death penalty is some sort of unique exception to the otherwise prevailing utopia we have here?

        1. But the stakes are higher with the death penalty.

      3. “with the race of the victim being a key factor”

        Really? Got a study that backs that up?

        One that deals with “did the accused know the victim” (for whatever reason, jurors feel more threatened by someone who murders random others, vs someone who murderers family / friends), plus prior criminal record (jurors tend to be bothered more by someone killing a non-criminal victim, vs one gang member killing another rival gang member)?

        1. It’s not even so much race as that it’s almost a complete crapshoot which murderers die and which ones live. If you are Ted Bundy, you’re going to get the death penalty. If you are a common run of the mill street thug who holds up a 7-11 and kills the clerk in the process, whether you live or die will depend on factors like where you committed the crime, who and how competent your prosecutor is, who and how competent your own attorney is, who is on the jury, whether the judge is having a good day. I just saw a study that federal judges are more likely to impose harsher sentences on Mondays after their home town football teams lost. In other words, stuff that shouldn’t be relevant but ends up being decisive. Much as I despise the federal sentencing guidelines, I have to give them credit for at least attempting (albeit unsuccessfully) to impose some uniformity on the process.

          1. “I just saw a study that federal judges are more likely to impose harsher sentences on Mondays after their home town football teams lost”

            I just saw a study that said that people are more honest if the honesty pledge is at the top of the page than at the bottom. Oh, but that turned out to be a garbage study that was based on bad, most likely fraudulent, data.

            We had a system where almost everyone in State X convicted of capital crime Y was given the death penalty. The death penalty opponents on SCOTUS decided to declare such laws unconstitutional.

            If you have a problem with the somewhat randomness of who gets the DP and who doesn’t, take it up with the DP opponents who forced our system to be that way.

            “DP opponents screwed things up, so now we can’t have the DP” is not a valid argument

            1. The study I reference is discussed at some length in the book Noise: A Flaw in Human Judgment by Daniel Kahneman, Olivier Sibony and Cass Sunstein, which discusses how extraneous factors — noise — determine a lot of our decisionmaking. It has a whole chapter on criminal sentencing. If you’re actually interested in the subject you might take a look at it.

              “We had a system where almost everyone in State X convicted of capital crime Y was given the death penalty. The death penalty opponents on SCOTUS decided to declare such laws unconstitutional.” Actually no. If you look at crime statistics from the 1930s, when the US had three executions a week, the percentage of murderers who got the death penalty was way down in the single digits. Death penalty opponents were complaining even then about how completely arbitrary it was who lived and who died.

              1. https://constitutioncenter.org/interactive-constitution/blog/on-this-day-supreme-court-temporarily-finds-death-penalty-unconstitutional

                In 1976, in a series of decisions called the Gregg cases, the Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic sentencing to death

                1. As well it should have; automatic sentencing to death fails to take into account that some murders are more heinous than others, some murders have extenuating circumstances, and one size will not fit all.

                  That, however, does not respond to my earlier point that even in the 1930s, when executions happened at the rate of three a week, the percentage of people who committed murder and who were actually executed was in the single digits. A wide disparity between the number of murders and the number of executions has always been true.

          1. Beginning with these two sources, the senior author of this article, working with a team of research assistants, compiled a database listing the race and gender of each of the victims of these executions. For cases from 2000 through 2013, the Clark County Prosecutor’s Office site contains full information; for earlier cases, extensive web and legal database searches were conducted to ascertain information about the victims, dates of crimes, dates of sentencing, and county of crime and conviction; this article makes use only of the victim information. With information about the inmate easily available, and information about the victims now compiled, our analysis is relatively straightforward; we simply want to know the number of cases with various combinations of offender–victim race and gender.

            So, no. Does not consider whether the victim was a criminal. Does not consider whether the victim knew / was friends with / was married to the killer.

            Does not, according to their own methods, consider any of the confounding factors I listed. Looking further at the methods, this is a pretty craptastic study, where they clearly decided on a conclusion and then went out and did the absolutely minimal amount of work they had to do to get the results they wanted.

            So, I’ll give you one more shot at my time: Got another study, one that actually controls for the relevant confounding variables?

      4. Also, wouldn’t an obvious answer to the equal protection issue be to make the death penalty apply most of the time to crimes like murder, with only exceptions perhaps for especially mitigating circumstances?

        This whole selectivity business was imposed by Supreme Court fiat. If the selectivity results aren’t equal, shouldn’t the Supreme Court be the one to solve the problem by removing the cause, the selectivity requirement it itself imposed, which is producing the unequal results?

        1. I guess that would solve the equal protection problem; but it wouldn’t solve the higher likelihood of executing the innocent or due process problems.

  3. All the beatings administered by the Supremes seems to be finally bringing results.

  4. “The Batson issue in Taylor is particularly difficult, and split the court on somewhat untraditional lines. One source of the difficulty is that Batson was decided just after the return of the jury’s verdict in Taylor’s case, but before the trial judge entered the judgment. A further source of contention was the fact that the prosecutor, while using some of his peremptory challenges to strike Black jurors, also objected the defense’s efforts to strike several Black jurors for cause (including one who ended up on the jury).

    Don’t know if I’ll have time to read the case, so I’ll just ask:

    Are we now at the point where the defense gets to ask the court to throw out a case because the prosecutor used any peremptory challenges on “black” would be jurors? And 5 “judges” will go along with the request?

    Because the prosecutor clearly didn’t reject all black jurors. So I would expect that’s more than sufficient to clear the hurdle. No?

    1. No, if you’re striking as many as you can for non-permissible reasons and one gets through, that doesn’t mean you’re okay.

      See generally:

      https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf

      1. “one gets through”

        “prosecutor, … also objected the defense’s efforts to strike several Black jurors”

        Several. More than one.

        Batson is not a ban on peremptory challenges of blacks by the prosecutor. If the prosecutor here was biased, he would not have objected to the defense.

        1. I don’t understand what you’re saying. Greg is saying “Because the prosecutor clearly didn’t reject all black jurors. So I would expect that’s more than sufficient to clear the hurdle. No?” But whether a black juror makes it onto the panel or the prosecutor doesn’t attempt to reject all of them doesn’t mean there are no Batson problems with the prosecutors preemptories.

          1. No, I’m saying that, since the prosecutor did not reject all black jurors, the fact that he rejected some, in and of itself, can not be sanely taken to prove discriminatory intent.

            That therefore the defense should carry the burden of proving that those strikes were because the juror was “black”, and not because, to pick a random hypothetical, the jurors who were struck all had family members in jail, and hte ones who weren’t stuck didn’t.

            What’s quoted in the post gives no more justification for a Batson challenge than “he struck black jurors”.

            What I found of the defense claims in the case was “he struck black jurors, so the case should be thrown out.”

            And I do not believe one can sanely defend that claim

          2. Or, you could say I’m agreeing with the ruling:

            Moreover, an immovable obstacle to Taylor’s Batsonclaim—especially on habeas review—is that the prosecutor in his case affirmatively objectedto the defense’s attempt to strike for cause three African-American members of the venire. All those objections were successful; and, as a result, one of those black venirepersons, Eleanor Fisher, sat on the jury at trial. Afairminded jurist could conclude—we think would likely conclude—that a prosecutor who aimed to purge the jury of African-Americans would not object to the defense’s attempt to remove three of them from the venire. Nor, such a jurist might conclude, would a prosecutor with that aim leaveone of his peremptory strikes unused while two African-Americans remained on the venire—which again is what the prosecutor did here. A decision to grant the writ in this case would simply ignore the habeas standard that the Supreme Court has told us again and again that we must apply.

            Which, apparently, five “judges” could not agree to.

            Apparently because they desire to “simply ignore the habeas standard that the Supreme Court has told us again and again that we must apply.”

            Apparently they need at least one more “again”

            1. “Apparently because they desire to “simply ignore the habeas standard that the Supreme Court has told us again and again that we must apply.””

              Right, US Reports is filed with S/C reversals of the 6th Circuit for failure to follow the law on habeas.

      2. But that’s not what’s alleged here. (Let’s here it for boring meetings, i could read some of the case).

        The prosecutor used 8 peremptories, 4 against “white” jurors, 4 against “black” jurors. The prosecutor objected to 3 “struck for cause” claims by the defense against “black” jurors.

        The defense has not alleged that any of the jurors were individually denied for illegitimate reasons.

        In his brief on appeal, Taylor raised 44 different claims, including that the prosecutor had violated Batsonwhen he struck four of the six black members of the venire. That claim ran less than a page; Taylor argued only that “the prosecutor directed 4 of his peremptory Taylor v. Jordan strikes toward black members of the jury panel and never offered any explanation for the exercise of those peremptory challenges.”

  5. So I’ve started looking at the dissent.

    it’s not a good thing when the opinion states a falsehood in the first sentence, and claims the falsehood is true at the start of the second sentence.

    Victor Dewayne Taylor has insisted for decades that his prosecutors unconstitutionally struck all but one of the Black prospective jurors in his capital trial. Taylor is right

    No, Taylor is not right. The prosecution struck four of the six black jurors. The defense struck the fifth one.

    That the dissent gets the basic facts of the case wrong, makes me unwilling to believe they could possibly get anything else right, where that thing gets in the way of their desire to return a result that has nothing to do with the law, and everything to do with their personal politics.

  6. Then we get to the core of the dissent, which is apparently that “the Supreme Court and the law are against what we want, and therefore we’re going to ignore them.”

    The Supreme Court addressed Batson’s and Griffith’s cases in back-to-back blockbuster decisions. The Supreme Court granted Batson relief, setting forth a three-step test to review peremptory challenges allegedly used to exclude jurors on the basis of race. Because Griffith’s case was pending on direct appeal when Batson was issued, the Supreme Court concluded that Griffith was retroactively entitled to the rule espoused in Batson’s case. Yet almost no habeas petitioner has emulated Batson’s and Griffith’s victories in court because of three nearly insurmountable legal hurdles. [Which, apparently, they’ve decided to surmount by ignoring them] First, Batson is toothless. [1st: SCOTUS didn’t rule the way we think they should] Second, very few defendants may retroactively benefit from Supreme Court decisions in habeas cases. [2nd: SCOTUS didn’t rule the way we think they should. Whine! Pout!] Third, Congress passed AEDPA twenty-five years ago because its members felt that the federal courts should owe the states more deference in habeas proceedings. [But we don’t, so we’re going to ignore it, and all the SCOTUS habeas rulings that go the opposite way of what we want] That’s how heavy AEDPA deference is: if the only state-court decision that addresses a habeas claim consists of just one word, we must retroactively conjure up reasoning to justify the state court’s outcome—even if the state court was wrong [It’s so unfair! We’re not allowed to de novo review the case and substitute our judgement for the State Court’s!]

    I guess I should appreciate their honesty about the reality that they’re totally lawless thugs in black robes. it’s nice that there’s at least one thing (if only that one thing) that they can be honest about

  7. The dishonest reasoning of the dissent, a continuing series:

    First, Taylor has successfully asserted a Batson claim. His prosecutor failed to supply any race-neutral reason for striking Black persons off Taylor’s jury.

    The prosecutor was not required to supply any race-neutral reason, this case was pre-Batson. But the fact that the prosecutor objected to three different attempts by the defense to strike black defendants “for cause”, and that the prosecutor had free strike that he didn’t use even though he let two black jurors through, makes a prima facie case that the prosecutor wasn’t acting from racial animus. One that the dissent makes no attempt to overcome, it simply ignores

    Indeed, the prosecutor’s response to Taylor’s objection was overtly racist: “[T]he Commonwealth would note defense also struck at least one or two black folk. … In accordance with case law, the Commonwealth has no other rational reason—if I strike all [i.e., “black folk”] it then becomes objectionable under the cases from, as I understand it, coming from California.” but see J. Kethledge Op. at 14(“[W]hat the prosecutor sought to convey here is anyone’s guess.”).

    1: You can not complain that the prosecutor is racist for striking four of six black jurors, then call him racist for pointing out that the defense struck one of the remaining two black jurors. If you get to identify jurors by their skin color, then so does the other side

    2: The law and Supreme Court precedent require the reviewing habeas judges to construe every reasonable inference in favor of the State. Instead, what the dissent is clearly doing here is construing every reasonable inference against the State.

  8. This one, however, takes the cake:

    Third, as the majority seemingly concedes, the Kentucky Supreme Court unreasonably misstated, misapplied, and contradicted Batson in “the last related state-court decision that does provide a relevant rationale,” Wilson

    No, it doesn’t.

    Wilson makes the reasonable statement that if lower court X issues an opinion with reasoning Y, and the upper courts merely affirm the lower court’s opinion without adding any reasoning, it is proper to attribute the lower court’s reasoning to the upper court, and rule based on that reasoning.

    Taylor I, the case where Taylor lost his Batson claim, happened 11 years before Taylor II, the case where the KY SC stated a flawed dictum. You don’t get to use an opinion that was written after the decision, as the reasoning used by the court in the earlier decision.

    So, if only the KY SC could engage in time travel, then the dissent might have a point. But, since they can’t, the dissent doesn’t

  9. One last bit from the dissent. They finally get around to admitting the fact that the prosecutor had blocked the defense from striking three black jurors for cause:

    That a prosecutor favors inclusion of specific black jurors on account of their views on the death penalty is of limited relevance in rebutting the presumption that the use of peremptory strikes to exclude other black jurors was discriminatory.

    Too bad they flunked logic.
    “The prosecutor is prejudiced against black jurors!”
    “I blocked you from excluding 3 different black jurors.”
    “Yeah, but that’s only because you like the way they think!”
    “And the fact that i like the way some black jurors think, and so want them on the jury, and don’t like the way other black jurors think, so don’t want them on jury, is pretty clear proof that I judge each juror on his or her individual merits, no?”
    “Um, er, ah squirrel!”

  10. “The court split 9-7 in Hill, largely along traditional ideological lines. Judge Gibbons wrote for the court, joined by Chief Judge Sutton and Judges Griffin, Kethledge Thapar, Bush Larsen, Nalbandian and Readler. Judge Moore wrote the dissent, joined by Judges Merritt, Cole, Clay, White, Stranch and Donald. [Note, senior judge Merritt participated because he was on the original three-judge panel, and Judge Murphy recused, which is why the ideological split divided the court 9-7 instead of 10-6.]”

    Fascinating. Here’s an article about Hill’s victim, 12-year-old Raymond Fife:

    “On Sept. 8, 1985, 12-year-old Raymond Fife went fishing with his dad.

    “Besides being a practical joker, fishing was one of the things the Warren Western Reserve seventh grader loved to do most. And after bumping into his older sister and her husband on the way, they spent that day with poles in their hands at Mosquito Lake.

    “It was a fun day for him,” recalled his mom, Miriam Fife. “And on the way home, he said to my husband, ‘this is the best day of my life’.”

    “Dressed in a black Wrangler T-shirt and his white high tops, Fife, just two days later, hopped on his BMX bike and headed to his friend Billy Simmons’s house before a Boy Scout meeting. He made it as far as a field near a well-traveled shortcut routinely used by neighborhood kids behind the Palmyra Road Valu-King
    Supermarket.

    “It was there, in the pouring rain, where his father and brother-in-law found him brutally beaten, raped and tortured nearly four hours later. Raymond later died on Sept. 12.”

    https://dloreno.files.wordpress.com/2012/06/remembering-raymond-fife-25-years-later.pdf

  11. “The principal dissent on the Batson issue was written by Judge Griffin, joined by Judges Gibbons, Moore Clay, White, Stranch and Donald. Judge Cole wrote a dissent on both issues, joined by Judges Moore Clay, White, Stranch and Donald. Judge White dissented, joined by Judges Moore, Clay, Stranch, and Donald in full, and Gibbons in part, and Judge Moore dissented, joined by Judges Clay, White, Stranch, and Donald. So, the Court split 9-7 on the Batson issue, but 9-5 on the confrontation clause issue (as Judges Griffin and Gibbons did not join any of the dissents on that point).”

    Fascinating. Here’s the grave of Scott Christopher Nelson, one of the *two* victims:

    “Scott attended Trinity High School in Louisville Kentucky where he lived with his parents. Scott and his friend Richard David Stephenson were murdered after stopping for directions they needed to attend a game at a local high school that their school sports team was playing against.Two men kidnapped them and murdered them after robbing them.”

    https://www.findagrave.com/memorial/84811940/scott-christopher-nelson

    1. They left out the part where the boys were raped after being robbed, and before being murdered

    2. Your marshalling irrelevant emotionalism in service of denigrating due process says a lot about you.

      Do you want a society of laws, or of men?

  12. Small typo in the Moore quote: “Write” should be “writ.”

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