[Deathpenalty]death penalty news----USA, IND.

[Rick Halperin]

July 3


USA:

SUPREME COURT ROUNDUP -- Same Justices, New Court


Although it has been 10 years since its membership last changed, the
Supreme Court that concluded its term this week was, surprisingly and in
important ways, a new court.

The change was most evident in the terms closing days, in the cases the
court decided on the rights of the detainees labeled enemy combatants by
the Bush administration. The court ruled that foreigners imprisoned at
Guantnamo Bay, Cuba, as well as American citizens held in the United
States are entitled to contest their classification before an impartial
judge.

The surprise lay not in the outcome: it was scarcely a great shock, except
perhaps to the administration, that a court preoccupied in recent years
with preserving judicial authority would reject the bold claim of
unreviewable executive power at the core of the administrations legal
arguments. Rather, what was most unexpected about the outcome of the cases
was the invisibility of Chief Justice William H. Rehnquist. It is too soon
to say for sure, but it is possible that the 2003-2004 term may go down in
history as the term when Chief Justice Rehnquist lost his court.

It is a remarkable development. Since his promotion to chief justice 18
years ago, his tenure has been notable for the sure hand with which he has
led the court, marshaling fractious colleagues not only to advance his own
agenda but also to protect the courts institutional prerogatives.

4 years ago, for example, the court reviewed a law by which Congress had
purported to overrule the Miranda decision, a precedent Chief Justice
Rehnquist disliked and had criticized for years. But in the face of
Congresss defiance, he wrote a cryptic opinion for a 7-to-2 majority that
said no more than necessary about Miranda itself but found common ground
in making clear that it was the court, not Congress, that has the last
word on what the Constitution means.

This year, there was every reason to suppose the chief justice would want
to shape the courts response to the war on terrorism. His 1998 book on the
history of civil liberties in wartime reflected his extensive knowledge
and evident fascination with the subject by which the term, if not his
entire tenure, was likely to be known. If there was a message to be
delivered from one branch of government to another, Chief Justice
Rehnquist figured to be the one to deliver it.

Yet the Guantnamo case found him silently joining Justice Antonin Scalias
dissenting opinion as Justice John Paul Stevens explained for the 6-to-3
majority why the federal courts have jurisdiction to review the status of
the hundreds of foreigners detained there. In the case of Yaser Esam
Hamdi, the American-born Saudi taken from the battlefield in Afghanistan
and held since 2002 in a military prison, Chief Justice Rehnquist was
among the eight justices who found the open-ended detention improper for
either constitutional or statutory reasons. But his was not among the
several voices with which the court spoke. He was a silent member perhaps
even a late-arriving one of Justice Sandra Day OConnors plurality opinion.

The implication is not that Chief Justice Rehnquist, who turns 80 on Oct.
1, has lost a step. Nor does he show any interest in leaving the court,
which he joined in 1972 at the age of 47. A few days ago, in fact, he
hired law clerks for the term beginning in October 2005, and some people
believe he is aiming to top the record of 36 years set by Justice William
O. Douglas, or at least to equal the 34-year tenure of his judicial hero,
Chief Justice John Marshall.

Rather, it appears that while he has stood still, the courts center of
gravity has moved away from him. One statistic is particularly telling.
There were 18 cases this term decided by five-member majorities (17 were
5-to-4 decisions and one, the Pledge of Allegiance case, was 5 to 3 but
would surely have been 5 to 4 had Justice Scalia participated; he would
certainly have agreed with Chief Justice Rehnquist, in the minority, that
the court should rule that "under God" posed no constitutional problem).
Of the 18 cases, Chief Justice Rehnquist was in the majority in only 8.

That contrasts sharply with the chief justices notably successful term two
years ago, when he was in the majority in 15 out of 21 5-to-4 decisions. A
year ago, he was in the majority half the time, in 7 out of 14 cases with
5-to-4 votes, and was on the losing side in the most important of those
cases, the decision that upheld affirmative action at the University of
Michigan. He was also on the losing side in the Texas gay rights case, in
which the court voted 6 to 3 to overturn the states criminal sodomy law.

Those were the 1st stirrings of what accelerated during the term that
began Oct. 6. The chief justice was in dissent in most major cases, from
the expedited ruling in December that upheld major provisions of the new
campaign finance law, until the 2 decisions last Tuesday,June 29 the terms
final day, blocking enforcement of an Internet pornography law and taking
a generous view of federal court jurisdiction under the Alien Tort Statute
to hear foreign human rights cases. Also this week, he dissented from the
courts refusal to authorize a police interrogation tactic designed to
induce suspects to confess despite receiving their Miranda warnings.
Further, the Rehnquist courts federalism revolution, with its expansive
approach to state sovereignty and correspondingly limited view of
Congressional power, appeared this term to stall in its tracks. The chief
justice was on the losing side in the terms major federalism case, the
5-to-4 decision in Tennessee v. Lane rejecting state immunity from suit
under a provision of the Americans With Disabilities Act.

A number of other cases had federalism overtones that a majority of the
court either rejected or ignored. In the case that struck down the
sentencing guidelines in the state of Washington, Justice Anthony M.
Kennedy objected in dissent that the court was failing to give the states
proper respect for their legislative choices on criminal justice. Chief
Justice Rehnquist also dissented in that case, which although less than a
week old has already left criminal sentencing in turmoil around the
country. Opponents of the McCain-Feingold campaign finance law objected on
states rights grounds to limits on the fund-raising abilities of political
parties at the state level. In upholding the law, over Chief Justice
Rehnquists dissent, the court barely acknowledged the federalism argument.

The chief justice tried and failed to use a Pennsylvania redistricting
case this term to overturn a 1986 precedent, to which he had strongly
objected at the time, that gave courts authority to review claims of
partisan gerrymandering. While there were five votes to reject the
particular gerrymander complaint, one of the five, Justice Kennedy,
refused to go along completely, instead writing a concurring opinion that
kept the prospect of a successful gerrymander suit alive for future cases.

The court decided 73 cases with full opinions during the term. Of the
major cases, Chief Justice Rehnquist wrote the majority opinion in 2. One
was the third of the terrorism detainee cases, that of Jose Padilla, an
American arrested at OHare International Airport on suspicion of being
part of a terrorist plot, who has been held in a military prison for the
last 2 years without access to court. The decision postponed resolution of
the case by holding that Mr. Padillas lawyer should have filed his habeas
corpus petition in South Carolina rather than in New York.

The 2nd of the chief justices major opinions came in an important
church-state case, Locke v. Davey. The question was whether a state that
underwrites college scholarships for secular study must also subsidize
students who want to study for the ministry. The argument for the
religious subsidies built on Chief Justice Rehnquists opinion for the
court 2 years ago in a school voucher case from Ohio, holding that it did
not violate the Constitution for states to give parents vouchers for
religious school tuition as part of a general "school choice" plan.

As a practical matter, the future of the school-choice movement depended
on the answer to the question that Locke v. Davey brought to the court: if
vouchers were permissible, were they also constitutionally required?
Writing for a 7-to-2 majority, the chief justices answer was no. "The
state has merely chosen not to fund a distinct category of instruction,"
one that was "not fungible" with ordinary secular studies, he said over
biting dissents from Justices Scalia and Clarence Thomas. Largely
overlooked in the drama of the terms higher-profile cases, Locke v. Davey
was an important decision, indicative of the struggle now going on within
the court over how far to push some of the principles that the
conservative majority has established over the last 10 years or so.

In this instance, although the consequences of turning permissible
vouchers into required vouchers would have been profoundly unsettling, the
courts recent insistence on an equal place for religion at the public
table provided at least a plausible basis for that outcome. Instead, the
majority looked at the consequences of carrying the recent precedents to
their logical conclusion, and stopped short.

In fact, as Locke v. Davey demonstrates, the most consequential debate on
the court today may be not so much over first principles, but over how far
to carry those principles. That the chief justice was so often on the
losing side this term may not mean that those who once agreed with him
have changed their minds, but that they disagree over what to do next.

In Locke v. Davey, the stopping point appeared clear to a broad majority
of the court. In the Tennessee federalism case, by contrast, while the
chief justice wanted to continue pressing the boundaries of state
sovereignty to immunize the state from a lawsuit by a man who could not
reach a second-floor county courtroom in his wheelchair, Justice OConnor
decided that Tennessee v. Lane was not the case in which to push sovereign
immunity to its logical conclusion.

The outcome was reminiscent of the courts decision a year ago in the
Michigan affirmative action case. Justice OConnor, long skeptical of all
official policies that take account of race, joined Justices Stevens, Ruth
Bader Ginsburg, David H. Souter, and Stephen G. Breyer to uphold the law
schools admissions plan, essentially on the ground that diversity was good
for the country. Pragmatism rather than doctrine seems to be the order of
the day at the court now, strengthening the position of pragmatists like
Justice Breyer and Justice OConnor. Justice OConnor, perhaps the courts
leading pragmatist, cast only 5 dissenting votes during the entire term,
far fewer than anyone else, and was in the majority in 13 of the 18 most
closely decided cases, more often than any other justice. She formed
strategic alliances with other justices, for example writing an unusual
joint opinion with Justice Stevens that upheld the central portions of the
campaign finance law.

Justice Stevens displayed his own strategic skills, finely honed during a
29-year tenure that has made him the senior associate justice, in a
position to assign the majority opinion in all cases where the chief
justice is in dissent. He tailored his majority opinion in Tennessee v.
Lane to Justice OConnors comfort level, for example, and crafted a
procedural opinion that removed the highly sensitive Pledge of Allegiance
case from the courts docket with surgical precision, leaving no precedent
behind. At 84, his intellectual energy appears undimmed, and he told a
gathering of his former law clerks a few weeks ago that he has no
retirement plans.

So when the new term begins on Oct. 4, the same justices will reassemble
for a highly unusual 11th year together. The juvenile death penalty and
medical marijuana are among the cases already on a docket that may
continue pushing these 9 people, so familiar to each other, in new
directions.

Following are summaries of the terms major decisions. (Some of the vote
counts are judgment calls; an opinion labeled by its author as a
"concurrence" may be counted as a dissent, for example, if it departs from
the essential elements of the majority opinion.)

Detainees

Rejecting the Bush administrations claim of unreviewable presidential
authority in its war on terrorism, the court ruled that both citizens and
noncitizens held in open-ended detention, in the United States and at
Guantnamo Bay, Cuba, are entitled to challenge their designation as "enemy
combatants before a federal judge or other "neutral decision maker." The
decisions left unanswered many important questions about what procedures
will satisfy the courts standards, and what will happen next.

In the Guantnamo decision, Rasul v. Bush, No. 03-334, the court held by a
vote of 6 to 3 that the United States naval base in Guantnamo Bay is
within the jurisdiction of the federal courts, entitling hundreds of
foreign detainees to file petitions for habeas corpus. Justice Stevens
wrote the opinion. Justice Scalia wrote a dissent, joined by Chief Justice
Rehnquist and Justice Thomas. The court ruled by a divided 8-to-1 majority
in Hamdi v. Rumsfeld, No. 03-6696, that the two-year detention of a United
States citizen, Yaser Esam Hamdi, is invalid, for any of several reasons.
Justice OConnor, along with Chief Justice Rehnquist and Justices Kennedy
and Breyer, said that Mr. Hamdi, picked up on the battlefield in
Afghanistan, had a due process right to a "meaningful opportunity" to
contest the factual basis for his detention. Justices Souter and Ginsburg
found that Congress had never authorized Mr. Hamdis detention in the first
place. Justices Scalia and Stevens said the government must either try Mr.
Hamdi for a crime, with the normal protections accorded to a criminal
defendant, or release him unless Congress itself suspends the right to
habeas corpus. Only Justice Thomas said the detention "falls squarely
within the federal governments war powers" and therefore holds up against
any argument.

A 2nd United States citizen, Jose Padilla, arrested at OHare International
Airport in Chicago and now confined in the same naval brig in Charleston,
S.C., as Mr. Hamdi, must file a new lawsuit in federal district court
there as the result of the courts 5-to-4 ruling in Rumsfeld v. Padilla,
No. 03-1027. The federal courts in New York, where Mr. Padilla was
initially held and where his lawyer filed a habeas corpus petition in June
2002, lacked jurisdiction, the court held in an opinion by Chief Justice
Rehnquist. Justices Stevens, Souter, Ginsburg and Breyer dissented.

Politics

2 cases had important implications for the political system.

In one, the court upheld the new federal campaign finance law by a vote of
5 to 4, rejecting arguments made by the Republican National Committee and
a coalition of business, labor and lobbying groups that the laws
restrictions on contributions and advertising violated the First Amendment
guarantee of free speech. Experience with the flood of unregulated money
into politics amply justified the new law, the majority said.

The justices worked hard to expedite the decision, McConnell v. Federal
Election Commission, No. 02-1674, managing to hand it down in early
December as the 2004 campaign season got under way. By then, the
provisions of the Bipartisan Campaign Reform Act, usually referred to as
McCain-Feingold for its Senate sponsors, had been in effect for 13 months
and the system was already adjusting to the ban on unlimited contributions
of so-called soft money to the political parties.

Justices Stevens and OConnor co-wrote the main opinion, joined by Justices
Souter, Ginsburg and Breyer. Justice Kennedy wrote the main dissent,
criticizing the majoritys definition of corruption as unduly broad. Chief
Justice Rehnquist and Justices Scalia and Thomas also dissented.

The 2nd case raised the question of whether the federal courts should
intervene in a redistricting dispute to correct a partisan gerrymander.
The case was from Pennsylvania, where the Republican-controlled
Legislature redrew the states Congressional district to squeeze out
several Democratic incumbents.

The court was deeply split. Four justices Scalia, OConnor, Thomas and
Chief Justice Rehnquist said in a plurality opinion by Justice Scalia that
partisan gerrymander cases did not belong in federal court because there
was no standard that judges could apply to evaluate them. Justice Kennedy
provided a fifth vote for rejecting the Democrats constitutional claim in
this case, Vieth v. Jubelirer, No. 02-1580, while indicating that a future
case could be so extreme as to violate the constitutional guarantee of
equal protection. Justices Stevens, Souter, Breyer and Ginsburg said the
courts should be open to such cases, although they did not agree on what
standard to apply.

Criminal Law

Continuing the revolution in criminal sentencing that the court launched
four years ago, a 5-to-4 decision striking down Washington States
sentencing guideline system threw federal sentencing into turmoil,
indicating the need for a quick resolution of the validity of the federal
guidelines. The court ruled that under the Sixth Amendments guarantee of
trial by jury, judges cannot be permitted to make the factual findings
that increase a defendants sentence beyond the usual range for the crime.
Juries must find such facts "beyond a reasonable doubt," Justice Scalia
wrote for the court in Blakely v. Washington, No. 02-1632.

As in earlier rulings in this line of cases, the unusual majority included
Justices Stevens, Souter, Thomas and Ginsburg. Justices OConnor, Kennedy
and Breyer dissented, as did Chief Justice Rehnquist.

At the same time, the court refused to give retroactive application to a
2002 ruling that invalidated the death penalty laws of Arizona and four
other states for permitting judges to make the factual determination that
placed a convicted murderer in the category of those eligible for the
death penalty. The 5-to-4 decision in Schriro v. Summerlin, No. 03-526,
returned as many as 100 inmates to the five states death rows. Justice
Scalia wrote the majority opinion. Justices Breyer, Stevens, Souter and
Ginsburg dissented.

The court strengthened the constitutional right of criminal defendants to
confront the witnesses against them, ruling 9 to 0 that prosecutors cannot
introduce statements from an absent witness on tape, for example unless
the defense has had a chance to cross-examine the witness at an earlier
hearing or a previous trial.

This decision replaced the courts previous, more flexible approach, which
often favored the prosecution. Justice Scalia wrote for the court in
Crawford v. Washington, No. 02-9410, that the Sixth Amendments
confrontation clause gives defendants the right to face their accusers,
with few exceptions.

With Justice Kennedy making the difference, the court reached opposite
results in 2 cases on the consequences of a failure by the police to read
suspects their Miranda rights. In Missouri v. Seibert, No. 02-1371, the
court rejected a police tactic of withholding the warnings during an
initial phase of questioning in order to induce an initial, inadmissible
confession that the suspect can then be persuaded to repeat after
receiving the warnings. The 2nd confession is not admissible either, the
court ruled in an opinion by Justice Souter. Justice Kennedy voted in the
majority, as did Justices Stevens, Ginsburg and Breyer.

The 2nd case, United States v. Patane, No. 02-1183, permitted the police
to introduce physical evidence discovered as the result of statements from
a suspect who did not receive Miranda warnings. Justice Thomas wrote an
opinion for himself, Chief Justice Rehnquist and Justice Scalia that was
noticeably hostile to the Miranda precedent. Justices OConnor and Kennedy
did not go so far, but they agreed with the outcome in this particular
case.

In 2 Texas death penalty cases, the court issued unusually pointed rebukes
of the United States Court of Appeals for the Fifth Circuit, which sits in
New Orleans and has jurisdiction over federal court appeals originating in
Texas. The justices in both cases found that the appeals court had failed
to follow Supreme Court precedent in refusing writs of habeas corpus to
death-row inmates: Delma Banks, who presented extensive evidence of
prosecutorial misconduct, and Robert J. Tennard, whose lawyers argued that
he had been blocked from presenting his low I.Q. as mitigating evidence.

The decision in Banks v. Dretke, No. 02-8286, was 7 to 2, with a majority
opinion by Justice Ginsburg and dissenting votes from Justices Thomas and
Scalia. The vote in Tennard v. Dretke, No. 02-10038, was 6 to 3, with a
majority opinion by Justice OConnor and dissenting votes from Justices
Thomas and Scalia and Chief Justice Rehnquist.

Privacy

The court ruled unanimously that release of the death-scene photographs of
Vincent W. Foster, the Clinton administrations deputy White House counsel,
would be an unwarranted invasion of the privacy of his surviving family
members. Mr. Foster committed suicide in 1993. Alan J. Favish, a lawyer
who disputed the finding of suicide, sought the photographs under the
Freedom of Information Act. His "bare suspicion" was not enough to justify
the intrusion, Justice Kennedy said for the court in National Archives v.
Favish, No. 02-954.

The court divided 5 to 4 on another privacy question, ruling against a
Nevada rancher, Larry D. Hiibel, who argued that he could not
constitutionally be required to identify himself to a law enforcement
officer. The court held in Hiibel v. Sixth Judicial District Court, No.
03-5554, that the police are entitled to obtain the name of someone they
suspect might be involved in a crime, even in the absence of the probable
cause necessary to make an arrest. Justice Kennedy wrote the majority
opinion. Justice Stevens, Souter, Ginsburg and Breyer dissented.

Discrimination

Addressing sexual harassment in the workplace, the court set guidelines
for the first time for evaluating an employers liability for working
conditions that become so intolerable as to induce a reasonable employee
to resign. Speaking for an 8-to-1 majority, Justice Ginsburg said an
employer could ordinarily defend itself by showing that it had adequate
procedures in place for reporting harassment and the employee had failed
to use those procedures. But if a supervisor or manager had taken official
action against the employee a demotion or reduction in pay, for example as
part of the harassment, that defense would not be available, the court
said in Pennsylvania State Police v. Suders, No. 03-95. Justice Thomas
dissented.

Interpreting the federal law against age discrimination in employment, the
court ruled 6 to 3 that the statute is not a two-way street: it protects
those whose employers think they are too old, but not those who are
disfavored for being too young. A group of younger workers had sued
General Dynamics over changes in retirement health benefits that hurt
those under 50 while protecting older workers. The court said the law
should be understood in the context of Congresss intent to protect older
workers. Justice Souter wrote for the majority in General Dynamics Land
Systems v. Cline, No. 02-1080. Justices Scalia, Thomas and Kennedy
dissented.

Federalism and Regulation

Ruling narrowly, the court held that states could be sued under the
Americans With Disabilities Act for failing to make their courthouses
accessible. The law requires accessibility for a broad array of public
services and programs, but Justice Stevenss opinion for a 5-to-4 majority
confined itself to the plight of wheelchair users in Tennessee who were
barred by architectural barriers from entering county courthouses. Whether
states can claim immunity from suit in other applications of the
disability law remains to be seen in future cases.

Limited as it was, this decision, Tennessee v. Lane, No. 02-1667, was
significant as a break from past decisions rejecting Congressional efforts
to overcome the states constitutional immunity from suit. The majority
said Congress was justified in this context by a well-documented history
of the exclusion from state judicial proceedings of people with
disabilities. Chief Justice Rehnquist dissented, along with Justices
Scalia, Thomas and Kennedy.

In a major health care case, the court ruled unanimously that federal law
barred the states from extending to patients in managed care the right to
sue for damages when a health maintenance organization refuses to cover
treatments that a doctor has deemed medically necessary. Congress alone
can decide whether to enact a "patients bill of rights," the court said in
Aetna Health Inc. v. Davilla, No. 02-1845. Justice Thomas wrote the
opinion.

The court affirmed the authority of the federal Environmental Protection
Agency over state regulators in a Clean Air Act case from Alaska. The
dispute in Alaska Department of Environmental Conservation v.
Environmental Protection Agency, No. 02-658, was over which agency had the
final word in setting conditions for expansion of a zinc mine. Voting 5 to
4, the court upheld the federal regulators authority to set stricter
conditions. Justice Ginsburg wrote the opinion. Justice Kennedy dissented
on federalism grounds, joined by Chief Justice Rehnquist and Justices
Scalia and Thomas.

Speech and Religion

In an opinion by Chief Justice Rehnquist, the court ruled that states that
subsidize college tuition for secular studies are not constitutionally
obliged to also subsidize students who are preparing for the ministry. The
case rejected the claim of a ministry student to equal access to a
Washington State scholarship for which he would have been eligible if not
for the states own constitutional ban on public financing of religious
institutions.

The vote in Locke v. Davey, No. 02-1315, was 7 to 2, with Justices Scalia
and Thomas dissenting. Similar constitutional barriers against subsidizing
religious study exist in most states and stand in the way of an expansion
of the tuition voucher programs the court upheld in a case from Ohio two
years ago. The question raised by the new case was whether states must
include religious schools in "school choice" programs as a matter of the
free exercise of religion. More generally, does exclusion of religious
institutions from a general public benefit automatically amount to
discrimination? The courts answer was no.

A dispute over the constitutionality of the words under God in the Pledge
of Allegiance ended inconclusively when five justices held that the
atheist who complained about the recitation of the pledge in his daughters
elementary school classroom lacked standing to bring the lawsuit. Justice
Stevens said for the majority that Michael A. Newdows lack of legal
custody of his daughter, coupled with the desire of the childs mother to
have her continue reciting the pledge, meant that the lower courts should
have refrained from deciding the case.

Justices Souter, Kennedy, Ginsburg and Breyer joined the majority opinion
in Elk Grove Unified School District v. Newdow, No. 02-1624, which took no
view on the constitutional merits of the lawsuit. Chief Justice Rehnquist,
Justice Thomas and Justice OConnor wrote separate opinions addressing the
merits and finding the pledge constitutional. Justice Scalia recused
himself from the case after having expressed his view before the appeal
reached the court that "under God" was constitutional. The court rejected
Congresss latest effort to curb childrens access to sexually explicit
material on the Internet. But the 5-to-4 decision in Ashcroft v. American
Civil Liberties Union, No. 03-218, left open the prospect that the Child
Online Protection Act of 1998 might yet survive a federal district court
trial if the Bush administration can show that the voluntary use of
filters would not be as effective as the laws stiff criminal penalties in
achieving the goal of protecting children. Justice Kennedy wrote for the
majority, joined by Justices Stevens, Souter, Thomas and Ginsburg.

Jurisdiction

Several cases this term posed novel questions about the jurisdiction of
the federal courts to resolve disputes over events that took place outside
the countrys borders.

Interpreting a 215-year-old law, the Alien Tort Statute, the court kept
federal courthouse doors open to lawsuits by foreigners who say they were
victims of serious human rights violations anywhere in the world. The
6-to-3 decision in Sosa v. Alvarez-Machain, No. 03-339, left many
unanswered questions about the full reach of the statute. Justice Souter
wrote for the majority. Justices Scalia and Thomas and Chief Justice
Rehnquist dissented.

The court ruled that the heir of an Austrian Jewish art collector could
pursue a lawsuit in federal court against Austria for the return of six
valuable paintings seized from the family during the Nazi era. The 6-to-3
decision interpreted a jurisdictional statute, the Foreign Sovereign
Immunities Act, to apply to conduct predating its enactment in 1976.
Justice Stevens wrote the majority opinion in Republic of Austria v.
Altmann, No. 03-13. Justice Kennedy wrote a dissenting opinion that
Justice Thomas and Chief Justice Rehnquist signed.

The court limited the foreign reach of federal antitrust law, ruling that
the Sherman Antitrust Act does not apply to transactions that take place
in foreign countries unless the defendants actions in the United States
can be shown to have contributed to the anticompetitive effects felt
overseas. The 8-to-0 decision came in a private suit for damages in an
international conspiracy to fix vitamin prices. Justice Breyer wrote the
opinion in F. Hoffman-LaRoche Ltd. v. Empagran S.A., N0. 03-724. Justice
OConnor did not participate.

A case involving Vice President Dick Cheney had intensely political
overtones but turned, as a legal matter, on arcane issues of federal court
jurisdiction. The underlying question was whether groups suing the vice
president to get information about contacts between his energy policy task
force and energy company executives could undertake pretrial discovery in
their effort to establish that a federal open-meetings law applied to the
task force.

For the Supreme Court, however, the only question was whether a federal
appeals court properly interpreted a jurisdictional statute when it
refused to block the pretrial discovery. Voting 7 to 2, the justices found
that the appeals court had acted "prematurely" when it refused the vice
presidents request to block discovery. The decision, Cheney v. United
States District Court, No. 03-475, gives the vice president a second
chance at shielding the information. Justice Kennedy wrote for the
majority. Justices Ginsburg and Souter dissented.

(source: New York Times)


INDIANA:

Governor of Indiana Spares Death Row Inmate


Joe Kernan spared a death row inmate's life Friday days before he was to
die by injection, saying it would be unfair to execute him when a mentally
retarded accomplice got a life sentence.

The decision followed a unanimous recommendation by the state parole
board, which said there were also questions about Darnell Williams' guilt.

It was the 1st time in 48 years that an Indiana governor granted clemency
in a capital case.

Williams and Gregory Rouster were both sentenced to death for the 1986
murders of Rouster's former foster parents, John and Henrietta Rease. But
a court ruled that Rouster was retarded and ineligible for execution.

The governor said Rouster was more culpable for the crime. The governor
commuted Williams' sentence to life in prison without parole.

"Those who bear the most responsibility for a crime should pay the highest
penalty," Kernan said. "Because Rouster cannot be executed for the crime,
it is unjust for Williams to be executed."

Williams had been scheduled to die July 9.

Among those who urged clemency were a juror and the case's prosecutor. One
witness recanted testimony that implicated Williams, and a new round of
DNA testing was inconclusive.

"Given the doubts about the propriety of Williams' conviction and
sentence, this action was appropriate," said his lawyer, Juliet Yackel.

************************

Kernan gives Williams ticket off Death Row----The governor commuted his
sentence to life without parole, the 1st such clemency in an Indiana
capital case since 1948.


Gov. Joe Kernan spared a death row inmate's life Friday just days before
he was to die by injection, saying it would be unfair to execute him for
the murders of a Gary couple when a mentally retarded accomplice got a
life sentence.

The decision followed a unanimous recommendation this week by the state
parole board, which said there were also questions about Darnell Williams'
guilt.

It was 1st time in 48 years that an Indiana governor granted clemency in a
capital case.

Williams and Gregory Rouster were both condemned for the 1986 murders of
Rouster's former foster parents, John and Henrietta Rease. But a Lake
County judge ruled last year that Rouster was retarded and ineligible for
the death penalty.

Kernan said Rouster was more culpable for the crime and commuted Williams'
sentence to life in prison without parole.

"Those who bear the most responsibility for a crime should pay the highest
penalty," Kernan said. "Because Rouster cannot be executed for the crime,
it is unjust for Williams to be executed."

Williams had been scheduled to die July 9.

Williams was days away from execution last summer when Gov. Frank O'Bannon
granted a stay for DNA testing of blood spots found on a pair of Williams'
shorts.

The Indiana Supreme Court ruled last month that the tests did not
eliminate Williams as a possible killer of John Rease. It also said other
evidence of his guilt was overwhelming.

The parole board's 5-0 vote Tuesday came the day after a hearing during
which Williams' prosecutor and a juror urged the board to recommend
clemency.

Juliet Yackel, an attorney for Williams, praised Kernan's decision to stop
the execution.

"Given the doubts about the propriety of Williams' conviction and
sentence, this action was appropriate," she said. "We also want to
remember the late Gov. O'Bannon, who took the 1st steps toward ensuring
fairness and truth in this case."

Staci Schneider, a spokeswoman for the Indiana attorney general's office,
said the office would have no comment on Kernan's decision.

A lawyer for the attorney general's office had argued this week there were
no legal reasons to doubt Williams' conviction and death sentence.

"He was a major participant with a clear, reckless disregard for the life
of the Reases," Gary Secrest, the office's chief counsel for appeals, told
the board. "What is served by this execution? Justice is served by this
execution."

In an interview with the parole board last week, Williams said he
accompanied Rouster to the Reases' house but had no idea what Rouster had
planned.

"It is unwise to impose the sentence of death in these particular
circumstances, with doubt as to Williams' direct participation in the
murders," the governor said.

*****************************

Kernan grants historic death sentence clemency----CLEMENCY: Darnell
Williams sentence changed to life for Gary murders


Gov. Joe Kernan on Friday granted the 1st clemency in the modern death
penalty era to Darnell Williams one week before his scheduled execution
for a 1986 double slaying in Gary.

Following an unprecedented unanimous recommendation by the Indiana Parole
Board Tuesday, Kernan commuted Williams' sentence to life in prison
without parole.

No Indiana governor had granted a clemency petition in nearly half a
century, including all 11 previous cases since the death penalty was
reinstated in 1977.

Williams was convicted in a Lake County court along with Gregory Rouster
for killing and robbing John and Henrietta Rease, who Rouster believed had
kept money from him in their role as foster parents.

In a written explanatory statement, Kernan listed Williams' mental
capacity, the fairness of sparing a more culpable co-defendant and doubt
about Williams' actual role in the crime as factors in his historic
decision.

"This decision is based on the unique circumstances of this case," Kernan
said. "All these facts taken together, not one single element, cause me to
grant clemency."

Kernan stressed that his decision does not call into question Williams'
participation in the crime or confidence in the justice system. The
governor's responsibility is to consider extra-judicial facts such as
"proportional sentencing" and the "extraordinary" statements of support
from those involved in prosecuting the case, he said.

"Williams' legal eligibility for the death penalty is not the sole issue
before me," Kernan said. "Clemency should not be used to undermine the
legislative determination allowing the death penalty in appropriate
cases."

Still, opponents of the death penalty were encouraged by the news.

"Elation is my reaction, as well as all of our students and staff," said
Jeffrey Urdangen, a Northwestern University legal clinic professor who
presented Williams' case to the parole board. "We know this is
unprecedented in Indiana, but we think this was the right case to make
history."

Juliet Yackel, Williams' defense attorney, said she was pleased with the
governor's decision. After hearing the news, she said Williams told her,
"My faith is everything to me."

Williams also reflected again on the late Gov. Frank O'Bannon, who stepped
in just days before the original Aug. 1 execution date and granted the
delay that allowed for DNA testing and the discovery of other evidence
that casts doubt on Williams' role in the double murder.

"O'Bannon is the one who took the 1st step toward the discovery of truth
in this case," Yackel said.

As a lawmaker, O'Bannon had been the author of legislation reinstating the
death penalty in Indiana in 1977, she said. Yackel lauded O'Bannon for
later having the courage and insight as governor to step in on this case
after the Indiana Supreme Court denied requests for DNA testing.

Yackel declined to comment directly on the state of the death penalty in
Indiana.

"It's up to the people of Indiana to decide -- do they feel the system
works," she said.

Williams is now looking forward to pursuing an education behind bars, an
opportunity he was not afforded on death row, Yackel said.

"He's all about moving forward and being enlightened," she said.

(source: NorthWest Indiana Times)

***********************

Text of Kernan statement on Williams clemency


The text of Gov. Joe Kernan's statement Friday on his decision to grant
clemency to Darnell Williams:

Whether to give clemency in a death penalty case is one of the most
difficult decisions a governor must make. Clemency is a highly
individualized determination. It is appropriate in specific situations,
including where the judicial system has not functioned properly or has not
allowed for the most suitable result in a particular case.

Darnell Williams is legally eligible for the death penalty because he
willingly participated in the robbery of John and Henrietta Rease on
August 12, 1986. Under Indiana's felony murder statute, Williams is
therefore guilty of the murders that took place in association with the
robbery whether or not he was the trigger man. Moreover, Williams is
legally qualified for the death sentence because a jury found beyond a
reasonable doubt that the state proved two statutory aggravators -
multiple victims and murder in the course of a robbery.

But Williams' legal eligibility for the death penalty is not the sole
issue before me. Clemency should not be used to undermine the legislative
determination allowing the death penalty in appropriate cases. The General
Assembly made a considered choice to permit the death penalty in Indiana,
and the judicial system ensures that the death sentence is imposed only
upon the most solemn consideration. I believe the death penalty is an
appropriate punishment in some circumstances, and my constitutional
responsibility to consider clemency has a role in ensuring that the
outcome is fair and just.

Claims for clemency are uniquely dependent on the individual facts of each
case. In considering clemency, I give weight to the recommendation of the
Parole Board, which conducts a thorough examination of each case,
including personal interviews with the prisoner and public hearings
allowing public participation. In this case, the Parole Board voted
unanimously to recommend commutation of Williams' death sentence to life
without parole.

Williams has advanced 4 arguments to support his request that his sentence
be reduced to life without parole. He argues: (1) his life circumstances
before committing the crime make the death penalty inappropriate; (2)
removal of his co-defendant, Gregory Rouster, from death row because of
Rouster's mental retardation makes it fundamentally unfair for Williams to
be executed; (3) Thomas Vanes, the prosecutor in his case, T. Edward Page,
the magistrate who presided over his post-conviction proceeding, and
several members of his jury now oppose capital punishment for Williams;
and (4) recently discovered evidence "unravels the case for death."

The evidence regarding Williams' life circumstances already has been
reviewed by courts and has not been found sufficient to overturn the death
sentence. Much of the evidence on this topic was presented to the jury at
trial, and other evidence was presented on post-conviction review. I do
not find evidence regarding Williams' upbringing to lend much weight to
his claim for clemency, but I view the evidence of Williams' mental status
somewhat differently. Williams' IQ has been measured at 78 and 81, and he
attended special education classes throughout his schooling. The usual
"cutoff" for mental retardation is IQ of 70-75, and Williams falls above
that level. The U. S. Supreme Court imposed a hard and fast rule that no
one who is mentally retarded may be executed. The courts have set a clear
legal standard, but it remains problematic to confidently place the solemn
decision of life or death on a few percentage points on either side of a
line. Williams' mental status weighs as a factor in the clemency decision.

A more substantial factor is Williams' argument that it is unjust to
execute Williams when his co-defendant Gregory Rouster, who is more
culpable, will not be executed. Clemency is an appropriate method to
adjust sentences of persons involved in the same crime to obtain a just
result based on relative culpability.

The record is clear that Rouster is more culpable in this case. Stealing
from the Reases was his idea in the first place, and his fingerprints are
on goods removed from the home but not carried away from the site.
Significantly, Rouster's statement after leaving the Reases' home
indicates he took personal responsibility for both murders. Moreover, two
people very close to the case, Thomas Vanes, who prosecuted the trial, and
T. Edward Page, who presided over the post-conviction proceeding, both
agree Rouster was more culpable and it would be unfair to subject Williams
to harsher punishment. Such statements from participants in the criminal
justice system are extraordinary.

Thus, those who bear the most responsibility for a crime should pay the
highest penalty. Because Rouster cannot be executed for the crime, it is
unjust for Williams to be executed. While it is true, as the courts have
held, that Rouster and Williams have each been subject to an
individualized sentencing determination and received due process as
defined by law, the sentencing decisions were made independently; each
sentence has been reviewed without reference to the other. Moreover, in
reviewing other capital cases I have found no instance in which Indiana
has executed a defendant where a more culpable co-defendant's life was
spared. The principle of proportional sentencing is deeply rooted in our
legal system. The principle dates back to early English law, and the
framers of Indiana's Constitution declared that "All penalties shall be
proportional to the nature of the offense."

The claim for clemency is further supported by doubts about Williams'
actual role in the crime. It is impossible to know who fired the weapons
that killed the Reases. There is evidence indicating that Williams did so.
There also is evidence indicating that Rouster, alone or in combination
with someone else, committed the murders. It is unwise to impose the
sentence of death in these particular circumstances, with doubt as to
Williams' direct participation in the murders and additional evidence
continuing to emerge depreciating Williams' involvement in the murders -
although there is no evidence exonerating him.

As Gov., I have sworn to uphold the Constitution and the laws of Indiana.
I have great confidence in our system of justice. In this case, the state
and federal courts have been fair and thoughtful in their deliberations.
Clemency is one part of the constitutional system, to be exercised in
those cases that justice requires. My review of the facts of this case
leads me to exercise clemency by commuting Williams' sentence. This
decision is based on the unique circumstances of this case. All these
facts taken together, not one single element, cause me to grant clemency.

The proper and just result in this case, based on the information now
available, is for Darnell Williams to serve a term of life imprisonment
without parole. I therefore commute his sentence to life without
possibility of parole.

(signed) Joseph E. Kernan -- July 2, 2004

(source: Associated Press)