What I Learned

This blog has taught me two things about myself:  I like legislative history and administrative law research.  Now I know about Lexis Congressional and Regulations.gov – I will be using those sources for a long time.  If I had known about these sooner, I think my research would have gone a lot quicker for a few classes.

Google has been a critical part of this blog – I think pretty much everything I’ve done on this has started with a Google search.  With advancements in Google Scholar and Google Books, I foresee Google playing a large part in my research in the future.

This blog will be my last – having this blog has affirmed my respect for bloggers who do this full-time.  It’s a lot of work to find topics, research, and write blogs and I can certainly understand how companies like Gawker and Wonkette have full-time bloggers on staff.

New Mix of Drugs for Lethal Injection

This isn’t a wrongful conviction (the killer admitted he killed the victims), but I thought it was interesting.  Oklahoma gave a new “cocktail” of lethal drugs to John David Duty in carrying out his death sentence.  There was a shortage of one of the drugs in the previous “cocktail,” so they had to switch one of the drugs to pentobarbitol.  Pentobarbital is used for animal euthanasia and is part of the drugs available in the Netherlands for physician-assisted suicide.

There had been some litigation about the use of pentobarbital, but the courts decided it was safe for use in carrying out death sentences.

I found this information by checking in on my google news alerts.

Antiterrorism and Effective Death Penalty Act (AEDPA)

Given my newfound interest in legislative history, I thought I’d look into some of the legislative history behind AEDPA.

I googled AEDPA to find its wikipedia page, which gave me the Public Law number to put into Lexis Congressional.   AEDPA has an enormous legislative history.  It’s initial form – entitled the Habeas Corpus Procedures Amendments Act of 1981 – had its first hearing on November 13, 1981.  The various hearings consist of an interesting mix of criminal appellate rules and immigration law.

Due to the breadth of hearings held on this law, I decided to focus on the 1996 debate held on the House and Senate floors.  On March 13, 1996, the House began debating the law.  There are repeated references to the Pan Am Flight 103 (“Lockerbie bombing”) and the Oklahoma City bombings.  Both sides of the aisle were in favor of holding terrorists responsible for their actions (a truly bipartisan issue), but the real contention related to the number of amendments the Republicans would allow to be debated.  AEDPA ended up passing the House with 251 votes (mostly Republicans) for it and 157 votes (mostly Democrats) against it.

The next day, the House voted on some amendments.  Former Representative Helen Chenoweth-Hage, known for her conservative views, argued against restrictions on habeas corpus petitions.  She based her arguments on a letter she received from the father of one of the Oklahoma City bombings.  After her impassioned speech about constitutional rights, Representative Hyde pointed to her signature on the Contract with America and told her that her signature on the Contract with America indicated her agreement that America needed habeas reform. He then went on to talk about how new evidence or improper government actions are still actionable federal habeas claims under AEDPA.

Representative Conyers then stated “Mr. Chairman, briefly, I just wanted to accept as debatable the reasons that the gentleman has advanced, but to suggest that because the gentlewoman signed a Contract With America she was irrevocably bound in matters of this manner I think is taking the case too far.”

Representative Chenoweth-Page’s amendment relating to habeas reform was defeated.

Approximately one month later, the Senate began debate on the bill.  Senator Leahy began the debate by arguing that the asylum procedures set out in AEDPA were more appropriate for an immigration bill and were misguided.  During the Senate debate, it seems like the Democrats were arguing that the restrictive measures relating to credible fear interviews at the border for asylum-seekers were unfair because they should have access to an immigration judge instead of a “low-level” officer.  I agree – and our current process is that the asylum-seeker can seek judicial review by an immigration judge if the officer finds the asylum-seeker does not have credible fear.  The Republicans were arguing that this bill just had to be passed – it was too important to be delayed….even thought it had faced a 10 month delay since the Senate had passed a previous version of AEDPA.

AEDPA was signed into law by President Clinton on April 24, 1996.  Quite frankly, the legislative history of this law is so broad that someone could write a long paper about it.  I thought it was another nice way to use Lexis Congressional.

 

Conan O’Brien, Christmas and DNA Evidence

I saw this tweet from Conan O’Brien and had to post it – how often will a Conan tweet relate to this blog?

I may be alone in this, but I believe one day DNA evidence will exonerate the Grinch.

 

A Return to Regulations.gov

I decided it was time to return to regulations.gov and see what the Department of Justice is up to – I ran a search for rules and proposed rules and there were 74 results.

Lo and behold – the Department of Justice recently put out a proposed rule relating to federal habeas corpus review of capital cases.  On February 5, 2009, the Certification Process for State Capital Counsel Systems was issued as a proposed rule to 28 C.F.R. Part 26.   28 U.S.C. 154 provides for a mechanism for “providing counsel to indigent capital defendants in state postconviction proceedings that satisfy certain statutory requirements.”  Essentially, if a state could prove it was appointing competent counsel to its death-row inmates, the appeal would be expedited and there would be limitations on federal review.

But did anyone comment?  Oh yes.  One person commented that Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996 and it was still being enacted in 2006.  Two people commented in a very similar fashion – with one adding a sassy comment about “the success that the friends of murderers are having today.”   And then there were the inmate comments.  However, there was one 13-page comment from an attorney in California that was very helpful in understanding both sides of the debate of this rule.   His main concern was each state’s attorney general vouching for the public defender services available in that state – I agree that is counterintuitive.

Several public defender organizations and anti-death penalty organizations commented.  They were unanimous in their opposition to the proposed rule.    The Pennsylvania  Federal Public Defender organization succinctly states their opposition – a state only has to prove on paper that it provides competent counsel, but there is no mechanism to ensure that death row inmates are actually provided competent counsel.

Interestingly, the final rule has not been published even though it has been over a year since the comment period closed.

This search has led me to want to look into the legislative history of AEDPA.  I’ll be blogging about that soon!

 

Hearings on Justice for All Act

I’m fascinated by the Justice for All Act, as evidenced by my previous posts.  I decided to use Lexis Congressional to go through a few of the committee hearings to get a feel for the support and opposition for the bill.

On June 13, 2000, the Senate Judiciary Committee held a hearing entitled “Post-Conviction DNA Testing: When Is Justice Served?”  Interestingly, Elliot Spitzer testified as part of a group of attorneys general and district attorneys.   Although Lexis did not have the testimony transcript, the hearing discussed in part the “importance of ensuring legal clarity when formulating legislation regarding post-conviction DNA analysis.”  To me, that looks like “reasons why Congress shouldn’t fund post-conviction DNA testing” – but that could be my bias.

As recently as 2003, Congress was discussing a constitutional amendment to protect crime victims. In 1982, President Reagan’s Task Force on Victims of Crime proposed a federal constitutional amendment.  It has been introduced in many sessions of Congress.  The proposed amendment would basically make sure that victims of violence crimes would be made aware of any public proceedings involving the crime or the release of the accused.

I can’t quite figure out what happened – the most recent action on the amendment was a report to the Senate by the Judiciary Committee on November 7, 2003.

Legislative history is fascinating.  We only see bits and pieces on the news, but there is a whole universe of legislative action that we rarely see unless we seek it out.

 

Journalism Innocence Project Students – Under Prosecution

While checking my Google news alert for “Innocence Project,” I saw this recent article about Northwestern University’s journalism students being prosecuted for taping witness statements.

Cook County prosecutors state that the journalism students taped witness statements in violation of Illinois law.  The students do not deny taping witness statements, but say they were wired so that a nearby investigator would be able to step in case of trouble.

This raises interesting issues relating to the different ethical rules of journalists and attorneys.  In Illinois, it is illegal to record a conversation without permission or a court order.

I also found it interesting that Northwestern University handed over 800 pages of documents, but the prosecutors didn’t charge the students.

Justice for All Act – Legislative History

In my previous blog, I noted the Justice for All Act which was signed into law by President Bush in 2004.  I decided to delve into the legislative history because I was fascinated by the breadth of this law.

I went to the Burger Library’s website and linked to Lexis Congressional.  I put the bill number (108 H.R. 5107) into the search engine and low behold, there is significant legislative history in this bill.

The House debated the bill on November 5, 2003 and it began with my favorite phrase in congressional floor debate – “I yield myself such time as I may consume.”  Anyway, Representative Sensenbrenner (R-WI) had this to say about the wrongful conviction portion of the 2003 version of the bill:

The Innocence Protection Act provisions of H.R. 3214, which are also the result of bipartisan and bicameral negotiations, will ensure that our justice system is working. They establish rules for post-DNA testing of Federal prison inmates and require the preservation of biological evidence in Federal criminal cases where the defendant remains incarcerated. These provisions also authorize funding to help States to provide competent legal services for both the prosecution and the defense in death penalty cases. They provide funds for postconviction DNA testing and bonus grants to States that adopt adequate procedures for providing postconviction DNA testing and preserving biological evidence.

Representative LaHood (R-IL) said this about the exoneration of the innocent:

I am a proponent of the death penalty, as a deterrent to violent crime, and this bill provides materials necessary to repair a flawed system, and we do have a flawed system. I believe those of us that support the death penalty have a responsibility to ensure it is applied fairly. As a just society, we must condemn the guilty, exonerate the innocent, and protect all Americans’ fundamental right to truth. It is my belief that this legislation allows us to save the death penalty, to know that we are utilizing it in instances where we are confident of wrongdoing.

When the Senate considered the bill on October 9, 2004 then-Senator Joe Biden remarked “(the bill) is a big deal.”  That must be one of his favorite phrases.

The breadth of this bill’s legislative history is very broad and spans 3 sessions of Congress.  I’ll return to this bill later for a reading of the committee reports and hearings.  This bill enjoyed broad democratic and republican support – the only opposition to the bill I saw in the House debate on November 5, 2003 related to federalism and state’s rights.

 

Terrible idea for a criminal!

I saw this blog on the Washington Post yesterday.  Apparently a burglar in the DC area was so dumb as to take a picture of himself wearing the items he was stealing and some cash and then post it to the victim’s Facebook page.  His face is clearly in the picture!  Whenever they catch this burglar, he will likely not be wrongfully convicted, but I thought it was relevant to my recent post about Twitter or Facebook as an alibi.  I guess this guy is exhibiting exactly the opposite – but still.  I found the brazenness of this criminal amazing – taking a picture with the stolen cash while wearing the stolen coat!

Hennepin County Post-Conviction DNA Testing

As noted in my previous post, Hennepin County has received a grant from the U.S. Department of Justice Post Conviction DNA Testing Assistance Program.  This $262,000 grant brings the total for DNA testing grants to $860,000.

I Googled the U.S. Department of Justice Post Conviction DNA Testing Assistance Program because it sounds interesting.  It turns out the U.S. Department of Justice’s National Institute of Justice solicits bids from states so the states can receive money from the federal government “to help defray the costs associated with postconviction DNA testing of forcible rape, murder, and nonnegligent manslaughter cases where actual innocence might be demonstrated.”  It looks like only a handful of states have been awarded these grants.

Fascinating.  A further Google revealed DNA.gov – the Department of Justice’s one-stop website for all things DNA-related.  It proved quite helpful – I was able to find a list of Minnesota cases relating to DNA evidence.  It also had a gateway page to many DNA-related issues that attorneys may face.

So how did this DNA.gov website and initiative come to be?  This seems so defendant-friendly!  (And very helpful for prosecutors, of course.)  Imagine my surprise to see that the enabling law was signed by President George W. Bush on October 30, 2004.  (Disclosure:  I am not a fan of GWB.  In fact, I am the opposite.)  Now, to be fair, big portion of this law is directed at reducing DNA testing backlogs, but there is also a portion relating to DNA testing to prove actual innocence.

Before being President George W. Bush, he was known as Governor George W. Bush.  Bush was the governor of Texas from 1995 until 2000.  While Bush was the governor of Texas, 152 people were executed.  That’s 30.4 executions per year.  This is the same man who said the following when asked what Karla Faye Tucker would probably say to him in the week leading up to her execution:

“Please,” Bush whimpered, his lips pursed in mock desperation, “please, don’t kill me.”

So, there’s that.  Well, it turns out at least one of the people Bush denied clemency to may have been innocent because Alberto Gonzales didn’t give him the correct information in his clemency briefing.

So what is my point?  I guess my point is that the more DNA testing we have going on, the better we all are.  And the federal government gives out a lot of money for this – and ironically, we have George W. Bush to thank for that.