[Deathpenalty] death penalty news----CALIF., ORE., USA

[Rick Halperin]

Feb. 1



CALIFORNIA:

California's new lethal injection plan already faces hurdles



California moved a step closer to resuming lethal injections this week but 
still faces significant hurdles before inmates can be executed.

The Department of Corrections and Rehabilitation has unveiled a revised 
single-drug method of execution, allowing the state to use either pentobarbital 
or thiopental in a single infusion to put condemned inmates to death.

But the barbiturates are extremely difficult to obtain, lawyers on both sides 
of the death penalty debate said Tuesday, and their lack of availability could 
eventually doom plans to restart the death chamber at San Quentin State Prison.

The U.S. Food and Drug Administration has barred the import of thiopental, and 
the manufacturer of pentobarbital has prohibited the drug from being used in 
executions.

"The state cannot lawfully procure either of those drugs through a reputable 
channel," said Ana Zamora, criminal justice director of the American Civil 
Liberties Union of Northern California.

The protocol allows for compounding pharmacies to make the drugs, but the state 
would need to import the necessary ingredients, said Kent Scheidegger, legal 
director of the pro-death penalty Criminal Justice Legal Foundation. "That is a 
problem."

Terry Thornton, a spokeswoman for the corrections department, said she couldn't 
comment on whether the drugs might be impossible to obtain.

"I can tell you that CDCR will comply with all applicable laws in the 
procurement of the lethal injection chemicals," she said.

Several states have had to place holds on executions because of the difficulty 
of obtaining the needed drugs.

The shortage stems in part from pressure placed by death penalty opponents on 
manufacturers to prevent their products from being used in executions.

A previous lethal injection protocol proposed by California would have allowed 
officials to choose 1 of 4 different drugs for executions. But the ACLU 
strongly opposed the use of 2 of them, arguing they had never been used in an 
execution.

The state later withdrew those 2 drugs from its proposed protocol, saying it 
was questionable whether the chemicals could be obtained in a form needed for 
lethal injection.

Scheidegger said that was a mistake. "Every drug has to have a first use," he 
said.

Even if compounding pharmacies could obtain the ingredients needed for the 2 
drugs now permitted, there is no guarantee that the chemicals would be 
processed correctly, Zamora said.

She said drugs made by compounding pharmacies have led to botched executions in 
other states.

"Will they engage in a covert mission to swap drugs with other states?" she 
asked. "We have a lot of concerns about how they are going to legally procure 
these 2 drugs."

She said the new protocol was essentially the same one rejected last year by a 
state law office before Proposition 66 became final.

It "contains a lot of the same problems -- legal and practical problems -- that 
the courts have been pointing to for years and years," she said.

California has the largest death row in the nation, with nearly 750 condemned 
inmates.

Scheidegger and his group joined prosecutors in winning passage of Proposition 
66 in 2016, which was intended to speed up executions. The measure was 
immediately challenged.

The California Supreme Court eventually upheld most of it, including a 
provision that exempted lethal injection protocols from a state administrative 
procedures law.

As a result, the new protocol should become final in a month or 2, Scheidegger 
said.

The next step for death penalty supporters will be to try to remove court 
injunctions blocking executions.

Scheidegger's group has moved to end an injunction issued by a state court, 
arguing it was based on the law prior to Proposition 66. The measure, in fact, 
was written in part to get around that injunction.

He said efforts also are being made to end the federal injunction, issued in 
2006 after a judge found the state's former 3-drug method of execution 
unconstitutional.

"None of (the injunctions) have any legal basis, but it does take time to get 
these hurdles removed by the courts," Scheidegger said.

He said he was hopeful the injunctions could be removed by the end of the year.

U.S. District Court Judge Richard Seeborg, an Obama appointee presiding over 
the Northern California lethal injection case, will eventually have to 
determine whether the new protocol violates the Constitution's ban on cruel and 
unusual punishment.

About 18 inmates have exhausted their appeals and could be executed relatively 
swiftly if the court battles were resolved and the state obtained the needed 
drugs.

Because of all the hurdles, though, Gov. Jerry Brown could leave office next 
year without having to preside over a single execution.

Brown is known to personally oppose capital punishment, but he took no position 
on ballot measures in recent years that would have ended the death penalty in 
California.

California's Constitution also limits his power to commute death sentences to 
life without parole.

He would need the support of 4 of 7 justices on the California Supreme Court to 
commute death sentences of inmates who committed multiple felonies.

At least 1/2 of the state's death row inmates have multiple felonies on their 
records, lawyers said.

Ronald Reagan was the last California governor to commute a death sentence, 
deciding in 1967 to move Calvin Thomas off death row because Thomas had serious 
brain damage.

Former Gov. Pat Brown, Jerry Brown's father, commuted capital sentences of 20 
inmates and oversaw the executions of 35 others.

The elder Brown tried to commute the death sentence of Caryl Chessman, whose 
case attracted sympathy worldwide. But the California Supreme Court refused to 
approve the commutation.

(source: Marin Independent Journal)

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

Black History Month From Death Row



Editor's note: Kevin Cooper was convicted of a 1983 quadruple murder and 
sentenced to death in a trial in which evidence that might have exonerated him 
was withheld from the defense. His case was scrutinized in a June 19 New York 
Times column by Nicholas Kristof. Visit savekevincooper.org for more 
information.

>From Dec. 17, 2003, to Feb. 9, 2004, the prison guards and administration at 
this modern-day plantation changed me, rearranged me, oppressed me, regressed 
me, repressed me, depressed me and undressed me in order to murder me.

They had me bend over so that they could illuminate my bowels with their 
flashlight in order to look for some type of contraband that they knew I did 
not have. They watched me, clocked me, kept tabs on me, wrote notes about me 
and what I did and did not do. They questioned me, upset me, saddened me, 
distressed me, laughed at me, talked about me and searched my arms for good 
veins into which to insert their razor-sharp needles.

They heckled me, pointed at me, stared at me, hated me, isolated me and lied to 
me by telling me everything was going to be all right because I would not feel 
any pain. They threatened to beat me up and beat me down if I gave them any 
trouble.

They did these things and others to humiliate me, dehumanize me, scare me and 
psychologically torture me in order to show me that they were the boss, they 
were God, my master, that they were in control of not only the situation at 
hand but my body and life as well.

"They" were the volunteer prison guard executioners who were assigned to 
torture, then murder me at 12:01 a.m. on Feb. 10, 2004, the execution date. 
They traumatized me, terrorized me, belittled me and offered me a last meal - 
Tombstone pizza. They examined me, standing naked in an ice-cold room, on an 
ice-cold floor, where they inspected every inch of my black body in the 21st 
century, the exact same way that my ancestors of the 17th, 18th and 19th 
centuries had their black bodies inspected while they stood naked on the 
auction block.

All of this was happening to me during Black History Month in 2004. But this 
should not be a surprise to anyone. In truth, lynchings and executions, illegal 
and legal, are a very real part of the history of black people in America.

The physical torture I was going to experience had I been strapped to that 
death gurney is the main reason why there have not been any executions allowed 
in California since 2006. But to better understand the type of torture that 
happens to condemned inmates who are to be put to death by lethal injection, 
back then as well as now, I will use the words of United States Supreme Court 
Justice Sonia Sotomayor, as she wrote in a June 29, 2015, dissent in the case 
of Glossip v. Gross: "Lethal injection is the chemical equivalent of being 
burned at the stake, or being burned alive."

Anyone who reads this can't actually believe that the people in this state of 
California can guarantee or even care about a painless or humane execution, 
which is an oxymoron, because there is no such thing as a humane execution. If 
you think that the people who want executions resumed in this state will not 
lie about this most important issue, including the type of drugs and the pain 
that they will cause to the people whose bodies they are injected into, then I 
must use the words of the late Malcolm X to try to get you see the truth. 
Malcolm X once stated concerning the oppressors who run this country and who 
have you believing everything they say: "Oh, I say, and I say it again, ya been 
had! Ya been took! Ya been hoodwinked! Bamboozled! Led astray! Run amok!"

In my words: Ya been bullshitted!

I am known in this prison/plantation as C-65304, and I write this "Black 
History Month Truth" about what happened to me, an innocent man, so that you 
will see how it is when it comes to who lives and who dies in this country's 
system of "justice."

On Monday, Feb. 9, 2004, shortly after 6:15 p.m., the Rev. Jessie Jackson said 
a prayer for me and my visitors inside the visiting room here at San Quentin 
Prison. Then he and my personal pastor and friends were told to leave, which 
they did. I was then escorted to the rear of the visiting area and taken to a 
hallway that contained holding cells. I was placed in a holding cell, where my 
handcuffs were removed and I was told to get undressed, which I did. I was 
strip-searched and given a brand-new set of prison-issue clothing and told to 
put it on.

I was handcuffed after I got dressed and removed from that cell. I was handed 
over to another squad of officers. There were about 12 members of the death 
squad who volunteered to be the execution team. I had known for quite a long 
time that a black man was the spokesman to the media for this institution 
whenever it came to executions and other events. However, I must admit that I 
was a bit shocked to see 2 black men volunteering to murder me. Maybe it was 
because of all the history books that I have read about my ancestors and our 
fight for freedom within this country. In this reading and learning, I found 
that the vast majority of murders, including lynching and execution of blacks 
in America, have happened at the hands of whites.

I also learned in my reading that there were certain Africans who sold other 
Africans to slave catchers in Africa, and those slaves were sent throughout the 
world, including to America. I learned that certain slaves on certain 
plantations whipped their fellow slaves, injured their fellow slaves, and, if 
instructed, murdered their fellow slaves whenever the white man told them to do 
so. Some free black people owned other blacks as slaves, too. (There are many 
reasons for this historical fact, including protecting their family members.)

Even with all this knowledge, I wasn't prepared to see 2 black men as 
executioners when this state of California went about its task of trying to 
murder me. Most, not all, but most of the black prison guards who worked on 
death row told me and other black males who are on death row that they were 
against the death penalty. They expressed that our history in this country, and 
their knowledge of it, made them against this type of punishment. (I guess this 
is why certain white district attorneys try so very hard to keep certain black 
people off death penalty juries.)

These 2 big, burly black men who were members of the execution squad had no 
rank. They were just plain old prison guards who were very, very large. In 
appearance, they looked like professional football players who made their 
living tackling people. For the purpose of being on the execution squad, they 
were the muscle.

In my mind I was screaming at them, asking, "What the fuck are you doing 
helping them to murder me? Don't you know our history? Don't you know what 
you're doing?" I was asking them in my mind how could they be part of any 
execution team, especially the one that was about to murder me. I said all of 
that and more in my mind, heart and spirit, but not a word came out of my 
mouth.

I was surrounded by about 6 officers and escorted to the death chamber waiting 
room. When I was in the visiting room, the prison officials told me that the 
U.S. 9th Circuit Court of Appeals had granted me a stay of execution; but until 
hearing from the United States Supreme Court about whether or not my stay would 
remain in place, this prison was going to proceed as if there was no stay.

When I arrived outside the death chamber waiting-room door, it was opened, and 
I was told to go inside, which I did. I was then told to place my back against 
the wall, while being surrounded by a new squad of officers. These were the 
officers of the execution squad. There was about 8 of them. The leader of the 
squad got real close to me and asked, "Is there going to be any trouble when we 
take the handcuffs off of you?" I looked him in his eyes and told him no and he 
removed the handcuffs.

I was again told to take off all my clothes, which I did, and I was 
strip-searched again. This time, they used a flashlight to light up both my 
mouth and my butt as they searched me. This room that I was now in was very, 
very cold. The temperature had to be in the lower 50s. I stood barefoot on that 
cold floor surrounded by those officers while my body was completely searched. 
Then I was given yet another new set of clothing, the clothes in which I was to 
be executed.

I was then placed in another cell, half the size of a regular cell. It had only 
a toilet, a mattress and a pillow in it. I stood there in the cold, waiting for 
my pastor to come pray with me, all the while not knowing what the Supreme 
Court was going to do.

About a half-hour later, my pastor arrived, and she was placed in a cell next 
to mine. It was to my right-hand side but on an angle. It was hard to see her 
through the cell bars, but I managed. I was asked once again if I wanted a last 
meal. I said no. I was asked if I wanted water. I said no. The warden came in 
and asked if I had a final statement. I said no. My arms were once again 
checked so they could make sure they could find my veins, and officers were 
passing by with alcohol pads and swabs and other assorted items for their 
execution and my murder.

My pastor did a great job in keeping me focused. Somewhere in the middle of one 
of her Scriptures, the phone rang. It was my attorney, Jeannie Sternberg, 
calling to let me know she was with me in spirit and as soon as she heard 
something from the Supreme Court she would call and let me know.

I entered the death chamber waiting room around 6:35 p.m. About 8:15, the phone 
rang again. It was once again my attorney. She told me she'd heard from the 
court and that the justices refused to hear the state's petition appealing my 
stay. They upheld my stay!

Even before I told my pastor the news, I told those officers that I meant them 
no disrespect in what I was about to say to them, but they weren't going to do 
their job that night. I then told my pastor, and she and I prayed. I came 
within three hours and 45 minutes of being murdered by the state of California.

I never again saw those two black execution guards. After news of the stay, 
everyone went his own way. I went back to a cell on death row, and they went 
wherever people like them go. While many of us who are black would like to 
think and believe that all the oppression, pain, death and inhumanity we endure 
comes only from white people, or white men, I want to remind everyone that 
there are "the black ones, too" who do to us what we are standing up against, 
fighting and dying for, to stop.

It took me a while to recover from the man-made ritual of death that I had to 
experience. I will never be the same. I am only getting stronger and more 
determined to do my part in shutting down the government's pride and joy - its 
capital punishment system.

The torture and inhumanity that accompany this crime are not only inflicted 
against our black bodies but against everyone's humanity, too. Yet this 
horrible and inhumane crime against all of humanity may once again be used in 
this great state of California after the passage of Proposition 66 in 2016. If 
this does indeed happen, then I may have to go through this prison 
administration's sick-ass ritual of death once again. And who knows, it may be 
during Black History Month in 2019.

To one degree or another, we black people have always been disrespected during 
Black History Month, as well as each and every other month of the year. My 
plight at the hands of the state should not be a surprise to anyone. I have 
written this to communicate the horror of the death penalty for everyone on 
death row, the legitimacy of the charges against them notwithstanding.

In my case, there is a particular resonance with black history, as it is 
certainly not the 1st time - and sadly will not be the last - that an innocent 
black man was convicted of a crime he did not commit. The fact is, I am 
innocent of the murders of 4 people for which I was convicted and in which the 
sole survivor, a child, said several times that it was "3 white men" who killed 
his mother, father, sister and friend.

3 white men were seen by witnesses driving the family's white station wagon 
away from their home and were seen soon afterward in a local bar, splattered 
with blood. One of the white suspects, a convicted killer, left his bloody 
coveralls at his girlfriend's house the night of the killings, and the 
sheriff's department threw them away 6 months later without testing them.

When the surviving boy saw my picture on television, he announced in front of a 
sheriff's deputy and his grandmother: "He is not the guy who did it." 3 white 
guys did it, and one black guy - me - was tried and convicted.

When my execution was halted in 2004 so my attorneys could present new evidence 
that would prove my innocence, the prosecution fought it, and the judge in my 
habeas corpus hearing denied virtually every piece of evidence that was 
exculpatory. A test to prove that my blood was planted on a shirt was denied. 
There is so much more misconduct. Much of it is cited by jurors who convicted 
me and now say if they had known the truth, they would not have found me 
guilty.

You have to ask yourself: Why deny me - and the victims and their survivors - 
the simple DNA tests that could prove my innocence and also identify the real 
killers? The prosecution wants my death to stifle the truth of my innocence. 
But why doesn't Gov. Jerry Brown grant me the DNA tests needed to find the 
killers? The families deserve this as much as I do!

Please think of me, and others like me, during this Black History Month, and do 
me a favor: If you hear that I was executed by the state of California, please 
remember these words of 9th Circuit Appeals Court Judge William Fletcher, 1 of 
11 appellate judges who want me to have a chance to prove my innocence.

"He's on death row," Fletcher said, "because the San Bernardino Sheriff's 
Department framed him."

(source: truthdig.com)








OREGON:

State hospital concludes Montwheeler unfit to stand trial----The conclusion 
creates uncertainty about when the Nampa man will be prosecuted on charges he 
stabbed to death an ex-wife and killed a Vale man in a collision during a 
police pursuit.



Oregon State Hospital evaluators have concluded that Anthony W. Montwheeler is 
mentally unfit to stand trial, creating uncertainty about when he will be 
prosecuted on charges he stabbed to death an ex-wife and killed a Vale man in a 
collision during a police pursuit.

Montwheeler's attorney said in court filings last week that his client needs to 
be taken back to the state hospital and held for treatment until he can aid in 
his own defense.

Malheur County District Attorney David Goldthorpe said Friday that he would 
contest the fitness finding, setting up the potential for a court hearing that 
would explore Montwheeler's tangled criminal and mental health history.

Montwheeler, 50, is facing the death penalty if convicted of the aggravated 
murders in January 2017 of Annita Harmon, a Weiser woman once married to 
Montwheeler, and David Bates, killed while on his way to work in Ontario. Bates 
died and his wife Jessica was seriously injured when Montwheeler's pickup truck 
collided head on with the Bates rig south of Ontario.

State records disclosed after the crimes showed that in 1997 Montwheeler was 
put under state control after being judged guilty but insane of kidnapping his 
first wife and son. He was put under the jurisdiction of the state Psychiatric 
Security Review Board for 70 years. The board, however, freed Montwheeler early 
because he convinced the board he had been faking his mental illness all along 
to avoid prison.

A state psychiatrist in late 2016 said in a report relied on by the state board 
that he could find no sign Montwheeler was mentally ill despite years of 
treatment by state and local professionals.

Oregon officials have never publicly explained how Montwheeler could fool 
doctors for so long.

Montwheeler was freed 3 weeks before the murders.

The immediate issue is whether Montwheeler has the mental capacity to 
understand his current legal circumstances.

State hospital officials on Jan. 11 filed a 37-page report of their evaluation, 
one that took nearly 4 months to produce when such reports are typically done 
in about 3 days, officials with the Oregon Health Authority said.

Court officials have refused to disclose the report although it is part of the 
criminal case file in Malheur County Circuit Court.

Montwheeler's attorney wants a court finding that Montwheeler now has a 
"qualifying mental disorder" which leaves him unable to help his attorney, 
understand the criminal proceedings or participate in his defense.

Document: Attorney's filing regarding fitness

If the judge does so, Montwheeler would once again return to the state 
hospital. By law, hospital officials would have 60 days to conduct yet another 
mental evaluation of Montwheeler. Within 3 months, hospital officials would be 
required to report their judgment to the judge. The law gives them three 
findings from which to select: Montwheeler will be fit for trial, he will 
become fit with treatment, or there is "no substantial possibility" he would be 
fit for trial in "the foreseeable future."

Under the law, Montwheeler couldn't be held for treatment for more than 3 years 
if he's found not fit.

The law also provides that if officials declare he can't regain his mental 
fitness, the criminal charges could be dropped.

No hearing has been scheduled to consider the hospital report.

Montwheeler's attorney, David Falls of West Linn, is asking that the hospital 
report on file with the court be sealed from public view. He also said other 
documents such as juvenile and family records should be kept confidential.

Falls wrote that Montwheeler "demands that his privacy interests be protected 
and that he be afforded adequate opportunities to object to any governmental 
intrusions or dissemination of such records."

Document: Request to seal report

The Malheur Enterprise recently requested access to the hospital report. 
Marilee Aldred, trial court administrator for the Malheur County Circuit Court, 
initially said the record was exempt by law and then said the request was being 
reviewed by the judge handling the Montwheeler case. That is Multnomah County 
Circuit Court Judge Thomas Ryan, who took over the case after Malheur County's 
2 state judges stepped away because of previous dealings with Montwheeler as 
prosecutors.

Access to public records about Montwheeler has been an issue before. Last year, 
the Enterprise won an order from Attorney General Ellen Rosenblum requiring the 
Security Review Board to release 600 pages of documents concerning its handling 
of Montwheeler prior to his release in December 2016. The agency initially 
balked at obeying the order and sued the newspaper to block access to the 
records. Gov. Kate Brown subsequently ordered the suit dropped and the records 
released.

(source: KTVB news)








USA:

The Chief Justice, Searching for Middle Ground



This column is not - repeat, not - going to argue that our conservative chief 
justice, John G. Roberts Jr., has morphed into a moderate. With important 
decisions looming in the remainder of a Supreme Court term that has been 
unusually quiet so far, there's little reason to expect surprises from the 
chief justice's votes on the constitutionality of partisan gerrymanders or 
conscience-based opt-outs from anti-discrimination laws. I'm confident that he 
remains staunchly opposed to affirmative action and equally committed to 
elevating the place of religion in the public square. And I haven't forgotten 
his perfervid opinion dissenting from the court's 2015 decision declaring a 
constitutional right to same-sex marriage.

Nonetheless, there's something going on at the court that bears closer watching 
than it has generally received. 3 times in recent weeks, we have seen Chief 
Justice Roberts on one side and the reliably right-wing triumvirate of Justices 
Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch on the other. That's 
not 3 times out of dozens: The court has issued only 8 opinions so far this 
year, 4 of them unsigned, along with a handful of what the court calls 
"miscellaneous orders." These can be as routine as setting a briefing schedule 
or as momentous as granting a stay of execution to a death-row inmate.

It was the latter such action last week that calls for taking stock. The court 
granted a last-minute stay of execution to Vernon Madison, a 67-year-old who 
has spent the last 32 years on Alabama's death row for murdering a police 
officer. He is now disabled by strokes and suffers from vascular dementia that 
has erased the memory of his crime, although he is evidently still able to 
understand that the state plans to put him to death for something he did. 
Supreme Court precedents dating to the 1980s make it unconstitutional to 
execute someone who lacks the mental capacity to understand the relationship 
between his crime and his death sentence.

Mr. Madison would seem to fall within that zone, even if not squarely in its 
center. His case has made numerous trips to the Supreme Court. He came close to 
execution in May 2016, after the United States Court of Appeals for the 11th 
Circuit had granted a stay of execution that Alabama then asked the justices to 
vacate. 4 justices - Chief Justice Roberts and Justices Thomas, Alito, and 
Anthony M. Kennedy - voted to grant the state's request. But 5 votes are 
required to grant or vacate a stay, and 3 months after the death of Justice 
Antonin Scalia, the court was tied at 4 to 4, and the stay remained in place, 
with the case returned to the lower courts for more proceedings. Eventually, 
Mr. Madison ran out of appeals, and Alabama set Jan. 25 as a new execution 
date.

But then, Mr. Madison's lawyer, Bryan A. Stevenson of the Equal Justice 
Initiative, raised an additional issue in seeking a new stay and full Supreme 
Court hearing. Mr. Madison's jury in 1985 had recommended life in prison rather 
than a death sentence. But Alabama law provided for judicial override, allowing 
the state's elected judges to reject a jury's recommendation and, as happened 
in this case, impose a death sentence. An outlier among the death-penalty 
states, Alabama adhered to this much-criticized practice until last year, when 
its legislature abolished judicial override - but only prospectively. Mr. 
Madison's new appeal argues that it would be unconstitutionally "arbitrary and 
capricious" to execute an inmate who was sentenced to death by a procedure that 
the state now disavows.

Perhaps that new argument struck Chief Justice Roberts as worthy of at least 
further consideration; the unsigned 1-paragraph order granting the stay offered 
no explanation and noted only that "Justice Thomas, Justice Alito and Justice 
Gorsuch would deny the application." The court has not yet decided whether to 
hear the new appeal (an action that requires only 4 votes). If the justices 
decide not to hear the case, the stay of execution will automatically expire.

A case earlier in January also concerned the death penalty, although less 
directly. A Georgia death-row inmate, Keith Tharpe, convicted of murdering his 
sister-in-law, had argued in the lower federal courts that a racially biased 
juror had tainted the jury deliberations so fundamentally as to require issuing 
a writ of habeas corpus and ordering a new trial.

Mr. Tharpe is black, as was his victim. The white juror, Barney Gattie, made 
extremely demeaning remarks about African-Americans including, in a sworn 
affidavit, the comment that "after studying the Bible, I have wondered if black 
people even have souls." Mr. Tharpe appealed the 11th Circuit's conclusion that 
the impact of that 1 juror on the outcome of the trial was not sufficiently 
"substantial and injurious" to entitle Mr. Tharpe even to proceed with his 
habeas corpus petition.

In September, the court granted Mr. Tharpe a stay of execution, with Justices 
Thomas, Alito and Gorsuch dissenting. The justices then went on to the question 
of whether to hear the appeal. After listing the case, Tharpe v. Sellers, for 
discussion at 9 weekly closed-door conferences, the court on Jan. 8 overturned 
the 11th Circuit's decision and ordered the appeals court to reconsider whether 
to let Mr. Tharpe proceed with his habeas petition. The brief opinion, quoting 
the juror's affidavit and calling it "remarkable," was unsigned.

The dissenting opinion, joined by Justices Alito and Gorsuch, was signed by 
Justice Thomas. But in its 13 pages, which dismissed the majority opinion as "a 
useless do-over" and "ceremonial hand-wringing," I'm sure I detected the 
distinctive voice of the newest justice. This sentence, "The responsibility of 
courts is to decide cases, both usual and unusual, by neutrally applying the 
law," mirrors the condescending civics lesson that Justice Gorsuch administered 
to Justice Ruth Bader Ginsburg, of all people, in a dissenting opinion last 
June. "If a statute needs repair," he informed the 7 members of Justice 
Ginsburg's majority in Perry v. Merit Systems Protection Board, "there's a 
constitutionally prescribed way to do it. It's called legislation." Only 
Justice Thomas joined that dissent.

My 3rd and final data point came last week, in 1 of the 4 signed opinions the 
court has issued so far this term. The procedurally complexities of this case, 
Artis v. District of Columbia, nearly defy simplification, but that's not the 
point here. It was not on anyone's radar screen as a 1st-order case - or 2nd- 
or 3rd-order case, for that matter. Suffice it to say that it concerned the 
time limits for refiling a case in state court after dismissal by a federal 
court. A federal law governs such a situation, with ambiguous wording that 
posed the question of whether the state-court plaintiff had 30 days from the 
dismissal to refile in state court, or 30 days plus whatever the state's 
statute of limitations would ordinarily have been had the clock not been 
stopped while the federal portion of the case was pending, in this instance 
apparently 3 years.

This hardly sounds like the kind of issue to provoke a 5-to-4 split on the 
Supreme Court. So why on earth did it? With an opinion by Justice Ginsburg that 
was joined by Chief Justice Roberts and Justices Stephen G. Breyer, Sonia 
Sotomayor and Elena Kagan, the majority engaged in a thoroughly conventional 
exercise of statutory interpretation and came up with the more generous reading 
of the statute.

Justice Gorsuch wrote a dissenting opinion that was joined by Justices Kennedy, 
Alito and Thomas. It basically announced that the end of the world was at hand. 
The decision to stop the clock on the running of a state's statute of 
limitations was an insult to the states, Justice Gorsuch declared, "no small 
departure from our traditional principles of federalism."

He ended his 18-page opinion with a history lesson. "We've wandered so far from 
the idea of a federal government of limited and enumerated powers that we've 
begun to lose sight of what it looked like in the first place," he informed his 
colleagues. "If the federal government can now, without any rational reason, 
force states to allow state law causes of action in state courts even though 
the state law limitations period expired many years ago, what exactly can't it 
do to override the application of state law to state claims in state court? 
What boundaries remain then?"

The author of a dissenting opinion in the Supreme Court has 2 choices. One is 
to proclaim that all is lost. That approach serves as a declaration of war that 
illuminates the defeat on a giant billboard and leaves no room for compromise 
the next time around, and there is always a next time. The other choice is to 
minimize the loss by sending the message that nothing much has happened here, 
saving the losing side's fire for the inevitable next round - or for things 
that really count.

I can only guess that Chief Justice Roberts, if he was tempted for a split 
second to view this little case as the dissent saw it, recoiled from Justice 
Gorsuch's superheated language. What boundaries remain, indeed? My sense is 
that the chief justice reads this heavily freighted political moment as a time 
to avoid spending the Supreme Court's limited capital needlessly, in contrast 
to his junior colleague's evident desire to make as much noise as he can.

Maybe I'm wrong about that. But there's a cliche in journalism that it takes 3 
to make a trend, and I've counted to 3 in just the past 3 weeks. If I'm right, 
there's a realignment, however subtle, in progress at the court now that 
portends a future more hopeful, or at least more interesting, than appeared 
likely even a few months ago.

(source: Linda Greenhouse, Op-Ed, New York Times)

********

Prosecutors OK with Christensen delay



Prosecutors for the U.S. government said Wednesday they have no objection to 
continuing the jury trial of accused kidnapper and killer Brendt Christensen.

Less than 2 weeks ago, the government announced it intends to seek the death 
penalty for the former University of Illinois student accused of the kidnapping 
resulting in death of visiting scholar Yingying Zhang, 26.

The student of agriculture from China went missing from Urbana on June 9. Her 
remains have never been located.

Christensen, 28, of Champaign, was developed as a suspect within days and has 
been in federal custody since June 30. His jury trial was scheduled for Feb. 27 
in Urbana.

When the U.S. Attorney's office filed its intent to seek the death penalty 
should Christensen be convicted, his public defenders asked the court to vacate 
all existing deadlines and trial dates.

"The United States understands that the defendant intends to amend and/or 
supplement his pending motions in light of the notice of intent to seek a 
sentence of death," wrote prosecutors Eugene Miller and Bryan Freres, adding 
they did not object to the defense motion to continue.

The prosecutors said they have and will continue to confer with the defense 
attorneys regarding how much time each side needs to be ready.

Prosecutors joined in the defense attorneys' previous request to change the 
Feb. 12 final pretrial conference to a hearing to discuss scheduling.

(source: The News-Gazette)