Schriro v. Landrigan:
It's hardly news when the Supreme Court reverses the 9th Circuit in an AEDPA case, as it did today in Schriro v. Landrigan. Still, it's interesting that this is a rare 5-4 opinion authored by Justice Thomas. The issue in the case was whether the district court had abused its discretion in denying Landrigan a hearing on whether his Sixth Amendment rights had been violated at trial, and specifically, whether Landrigan had properly waived his right to have his attorney put on mitigating evidence when he had blocked his attorney from doing so at trial. A majority of the Court concludes he did and should get no hearing; four Justices concludes that he didn't and merits one.
Jose Reyes:
Why is it that 5-4 opinions authored by Justice Thomas are rare events?
5.14.2007 5:51pm
Sasha Volokh (mail) (www):
I'm guessing that it's because, when there's a 5-4 opinion, someone is on the wobbly side, and then it's good strategy for the senior justice in the majority to assign the opinion to the wobbly guy -- so he can write it with whatever qualifications he thinks necessary -- or at least to someone who can be counted on to moderate his own view so as to keep the wobbly guy's vote.

I take it Justice Thomas, by ideology, is unlikely to be the wobbly guy himself, and perhaps by temperament he's unlikely to be the guy to write the moderate opinion to retain the wobbly guy. If that's true, he'd only be a sound choice when the 5-justice majority is pretty solid. And -- Orin would know this better -- it's not always a solid majority in these death penalty AEDPA cases.
5.14.2007 6:11pm
Bobbie (mail):
I don't understand the majority opinion. Thomas argues that the defendant clearly waived his right to present mitigating evidence and therefore his attorney had no duty to determine what mitigating evidence existed. Thus, there was no prejudice as whatever mitigating evidence the attorney turned up wouldn't have been presented anyway. As Thomas puts it: "The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence."

But that conclusion, as the dissent accurately notes, is "pure guesswork" without an evidentiary hearing. We don't know how the defendant would have reacted if his counsel had presented him with mitigating evidence that was not yet uncovered and explained to him the legal consequences of that mitigating evidence.

Perhaps most importantly, the defendant's counsel had an obligation to explain to the defendant the nature of the right he was waiving. Without that explanation, how could the defendant knowingly and voluntarily waive his right? But here, we see that there's no way the defendant could have knowingly waived his rights because the attorney didn't know the scope of the mitigating evidence at issue. Thomas frames it as an issue of whether the attorney "lied" to the court when he said he went over the defendant's legal rights. But this ignores the fact that the scope of those legal rights depends on facts that the attorney didn't know. It would be like saying a defendant can knowingly waive his right to a trial and plead guilty when his attorney explains to him those rights -- even when the attorney has done no factual investigation. Advising a client doesn't mean just spitting out the black letter rules. It means applying the client's facts to those black letter rules.

Finally, I find it disturbing that somebody with serious mental issues could waive his right to present mitigating evidence and thus effectively volunteer for the death penalty. Criminal justice is supposed to be concerned about the rights of the public and I'm not sure I'm comfortable with a mentally unstable defendant electing to volunteer for society's ultimate punishment when he may not have deserved to receive that punishment.
5.14.2007 6:31pm
elChato (mail):

are you saying that Landrigan aka Hill was not competent to make these decisions?
5.14.2007 6:44pm
Bobbie (mail):

I'm not sure what you mean. If by competent you mean did he have sufficient information to knowingly make this decision, then no, I don't think he was competent.

If by competent you mean whether he had sufficient mental capacity to make the decision if he were informed, then I accept under current law he was competent to make that decision.
5.14.2007 6:54pm
andy (mail) (www):

I'm guessing that it's because, when there's a 5-4 opinion, someone is on the wobbly side, and then it's good strategy for the senior justice in the majority to assign the opinion to the wobbly guy

It could be the case that Kennedy was joining the left-wingers, and then changed his vote after reading a Thomas dissent and deciding to join his opinion.
5.14.2007 7:15pm

Isn't the answer to your question found in the standard of review? The defendant needed to establish that the district court abused its discretion, and its discretion was particularly broad in light of AEDPA's very deferential standard for relief. You may find the existing law and standard of review "disturbing," but it is the law that the Justices were required to follow.
5.14.2007 7:17pm
Bobbie (mail):

I don't think the standard of review changes the syllogism Thomas laid down and the fact that one of his factual premises is based on speculation. Given that an evidentiary hearing could have cleared up that speculation, I think the court abused its discretion.

My comment that allowing mentally ill people to essentially choose to be executed was meant to be considered separately from my legal critique of the opinion. I understand that under current law, a mentally ill person may waive his rights to present mitigating evidence if that waiver is made knowingly. I find that disturbing. Don't you?
5.14.2007 7:44pm
David M. Nieporent (www):
What I'm always puzzled about in death penalty jurisprudence is why a defendant's alleged "deficits with cognitive processing, poor adaptability, incomplete understanding of his surroundings and his effect on others, and very limited impulse control" are considered "mitigating" rather than aggravating factors.
5.14.2007 7:45pm
Bobbie (mail):
David, would you punish children the same as adults? Or would you punish them less severly because given their lack of development, they're less morally responsible for their actions than adults?

If you wouldn't punish children the same as adults, why would you punish adults that have the same mental capacity as children the same as adults?

Remember that this isn't an issue of whether we punish the mentally ill, but whether they're mentally formed enough to deserve the ultimate punishment.
5.14.2007 7:58pm
Dave N (mail):
We don't punish children the same as adults--but there is a significant difference between executing the mentally retarded, which the Supreme Court said is unconstitutional, and executing the mentally ill, which is not, as long as the mentally ill person appreciates that the state is going to kill them and why.
5.14.2007 8:11pm
Peter Young (mail):
What I'm always puzzled about in death penalty jurisprudence is why a defendant's alleged "deficits with cognitive processing, poor adaptability, incomplete understanding of his surroundings and his effect on others, and very limited impulse control" are considered "mitigating" rather than aggravating factors.

Your question reaches to the heart of any criminal justice system and, indeed, to the heart of civilized society.

We have a criminal justice system premised on the notion of individual responsibility, the main underpinning of which is the proposition that people have free choice in conducting themselves. If, because of the factors you list, their freedom of choice is compromised, to that extent their individual responsibility is also compromised.

That is why we regard these factors as mitigating rather than aggravating in determining the appropriateness of the death penalty. Legally, these factors go to the level of the defendant's culpability, and the Supreme Court has held that that is one of the factors that must be considered, at least if raised, in determining whether death is appropriate under the cruel and unusual punishment clause.

You, on the other hand, apparently wish to look at the appropriateness of death as purely a matter of determining danger to the community without regard to individual responsibility. Thus mental defects become aggravating rather than mitigating factors in your view. That is your privilege, of course, but it is a view that most civilized nations have long abjured. It is also a view the Supreme Court has rejected under the eighth amendment.
5.14.2007 8:15pm
When is SCOTUS going to recognize that the era of defendents making meaningful decisions about their lives is past? The ideal that in a civilized nation a defendent would be allowed to take responsiblity for their actions by either pleading guilty, or not trying to mitigate the punishment prescribed by statute is just barbaric. In fact it should be up to the defense attorney whether or not the defendent is even allowed in the courtroom at all.
5.14.2007 8:22pm
Bobbie (mail):
David, I understand the law has drawn a distinction, but I'm arguing that the distinction makes no sense and that as a policy decision, the federal Government and state government's decisions to execute people who are mentally ill is indefensible.

If a child age 10 kills somebody and is sentenced to death (lets assume that's allowed), the child no doubt would both appreciate the state is going to kill them and why. I believe we don't kill children, in part, because we accept that children are not as morally culpable for their actions as adults Similarly, I don't think the mentally ill are as morally culpable as people who are not mentally ill. And again, the issue here is not whether we can punish them but whether we can give them the ultimate punishment. Death is different, in my mind.

To bring this back to my original point, however, allowing the mentally ill to choose to have themselves executed when their decision, no doubt, is clouded by that very illness, seems perverse to me. Criminal justice is supposed to deal with righting the wrongs to the community. The rights at issue are both the defendant's and society's. By essentially allowing a mentally ill person to choose to receive society's worst punishment -- when that person may not have received that punishment but for that mentally ill person's choice -- seems wrong.
5.14.2007 8:23pm

Can you explain why you don't think the standard of review matters? I would think it does.

As for what is disturbing or not disturbing, I tend to think judgments like that are based on a totality of the circumstances. I would need to know what the defendant did, who the defendant is, what the evidence of mental illness is, how culpable the conduct would be when you factor in the mental illness, etc.
5.14.2007 9:40pm

I think you might misunderstand what this case is about. No matter what the dissent says, Schriro doesn't concern mental illness or what standard should apply when a defendant chooses not to present mitigation evidence. Rather, it concerns how many times we need to have a hearing in the same case. The answer is two, not three.

To recap: Landrigan's attorney wanted to present evidence from Landrigan's mom and wife that Landrigan had a tough childhood and life. Even though Landrigan knew he was facing the death penalty, Landrigan said he didn't want this to happen. (It isn't that unusual for a defendant to oppose investigators digging into his past or his family, and it's not necessarily evidence that Landrigan is mentally ill.)

After he got the death penalty, Landrigan's lawyers went back to the trial judge and tried to put in other evidence (from his dad and probably a shrink or two) about what a really tough life Landrigan had. The judge said we already went through this once, so no. And it wouldn't make any difference seeing as how Landrigan killed one guy and stabbed another before escaping from prison and killing the third one.

The dispute between the Supreme Court majority and dissent is whether the trial judge can reasonably conclude that Landrigan thwarted his attorney's efforts to put on evidence about his childhood, or whether he needs to have a third hearing to determine just how bad his childhood really was.

Keep in mind that in non-criminal trials, the first hearing is all anyone ever gets. The second round is a pure criminal-law bonus. The idea that a third hearing is even possible strikes me as utterly wasteful and absurd.
5.14.2007 9:51pm
Erasmus (mail):
Orin, as you know, the "discretion" at issue here is whether the federal district court had to conduct a evidentiary hearing into whether the defendant suffered prejudice for his attorneys ineffective assistance of counsel. If the facts the defendant alleged gave rise to a claim -- that he was prejudiced -- then he was entitled to a hearing. If the facts alleged did not give rise to a claim, he was not entitled to a hearing. To draw this out a bit, it wouldn't make sense for the district court judge to say, yes, the facts as you've alleged them would entitle you relief, but I'm not going to let you develop them (with certain exceptions, like procedural default, which I don't believe are at issue here -- at the least, I'd like to set those concerns aside for the moment.) Thus, while yes, the district court had "discretion" to deny the hearing, the real issue turns on the question of whether the facts give rise to a claim. The Ninth Circuit didn't need to "defer" to the district court on that point. I think the majority was confused on this as it applies in this case.

While the issue is couched in terms of "discretion," it makes little sense in this context. Remember that the district court here is not the state finder of fact and so it doesn't really make sense to have the 9th Circuit "defer" to the district court when the 9th Circuit is in no better and no worse position than the district court to determine whether the facts give rise to a colorable claim of relief.

Perhaps put more succinctly, what, exactly, is the Ninth Circuit supposed to defer to? If the district court got it wrong -- that as a matter of law, if the defendant's allegations here are true: he was prejudiced by not being fully informed about his rights -- why shouldn't the Ninth Circuit reverse?
5.14.2007 10:44pm
Erasmus (mail):
neilalice, I'm not "misunderstanding" what this case is about. The issue isn't whether the defendant "thwarted" his attorney's efforts to put on evidence about his childhood. Of course he did! There's no dispute there. The question is, given that he made this decision to thwart based on bad advice from his attorney -- advice that everybody seems to accept is constitutionally defective -- should we let him change his mind? (There are other issues, of course, but that's the heart of this case.) The majority says no, he can't change his mind now because the bad advice didn't affect his decision in the first place and the dissenters say he should have the right to develop an evidentiary record to prove that the bad advice did.
5.14.2007 10:50pm
Let's go to the tape:
I see this opinion as akin to the 4th Amendment excessive force claim, where the Supreme Court felt that the Court of Appeals had misrepresented a record that the Supreme Court was in just a good a position to review. The majority specifically refuts the Ninth Circuit's description of the transcript before the sentencing Court, and the details presented by Thomas, in my opinion, clearly show that at that time, the defendant would have rejected the presentation of any mitigating evidence. In fact, the defendant minimized the mitigating evidence that the original court sought to elicit from the defense counsel, and instead made further damning statements about his own actions.
5.14.2007 10:57pm
I don't think anybody misunderstands what this case is about. It is about using any technicality no matter how tenuous, no matter how far removed from the question of innocence, guilt, due process, or fitness of punishment in order to void any death sentence imposed by any court.

And everybody knows it.
5.14.2007 11:10pm
Bobbie writes:
While the issue is couched in terms of "discretion," it makes little sense in this context. Remember that the district court here is not the state finder of fact and so it doesn't really make sense to have the 9th Circuit "defer" to the district court when the 9th Circuit is in no better and no worse position than the district court to determine whether the facts give rise to a colorable claim of relief.
Bobbie, what's your authority for that? This happens all the time -- it's often true that the court of appeals is in exactly the same position as the trial judge. But at least in my experience, courts of appeals still defer to the trial judge's call in these circumstances. What's your authority for the view that in these circumstances, the standard of review becomes de novo rather than abuse of discretion?
5.14.2007 11:25pm
Erasmus (mail):
Orin, I believe I answered your question in my first paragraph of my prior response. Does a district court have "discretion" to deny an evidentiary hearing if it believes that the allegations, if proven true, would justify relief? That's nonsense and courts, including the supreme court, have held that the answer is no. (See, e.g., Townsend v. Sain at page 313, which the Court cites in Landrigan -- notice the "must"; Totten v. Merkle, also cited approvingly by the Court here, notes that an evidentiary hearing is "required when the petitioner's allegations, if proven, would establish the right to relief"). So you can call it abuse of discretion, but then the district court abuses its discretion when it makes a legal error if the defendant's allegations, if true, would entitle him to relief.

Let's go to the tape, as a colleague put it in a way better than I could: "A guy convicted of first degree murder will alternate between feelings of hopelessness and a desire to trudge on. To say that an angry brain damaged man's decision to give up, announced at sentencing, is the definitive word, when his counsel never met with him, explained the process to him, and explained that mitigation was a process much broader than the guilt phase" is absurd. We wouldn't accept this sort of off the cuff exchange at a plea colloquy. Why should we here?
5.15.2007 1:04am

Landrigan is not, in fact, questioning his first attorney's advice (though I take your point). We agree that the first attorney told Landrigan to put on mitigating evidence, but Landrigan refused even while assuredly knowing the consequences of his decision would likely result in a death sentence.

But why on earth would we allow him to change his mind? No one else in the justice system gets to change his or her mind (with the possible exception of judges on rehearing), so why should a convicted murderer? Maybe Townsend used to let that sort of thing happen, but 2254(d)(2) has now superseded it.

By the time Landrigan claims to change his mind, it's far too late to follow his first attorney's advice. So he instead argues that his first attorney's investigation was deficient. Landrigan's new attorneys have found, with the benefit of a couple of extra years to look, a bunch of mitigating evidence, which makes the first attorney's efforts look paltry by comparison. The new attorneys, of course, don't have to sit next to Landrigan in a courtroom and worry about what he'll say in front of the jurors and the prosecutor.

True, Thomas doesn't question the first attorney's competence, but then he doesn't need to defend him. It's easier to assume that he was incompetent, just as it's easier to assume that a double murderer's post-trial declaration that he now really wants mitigating evidence is genuine. But see Fed. R. Evid. 609 (regarding the credibility of a felon). The trial judge said she didn't believe Landrigan's change of heart, so why isn't that the end of it?

Finally, nothing in Landrigan's trial decision to block his family members from testifying strikes me as remotely equivalent to an "off the cuff exchange at a plea colloquy." It's true that most people wouldn't refuse to have their background aired before a jury, but then most of us aren't multiple murderers.

Again, the case is about how many hearings the federal courts think a death-row inmate ought to be given, when the judges know, as Kazi notes, that each one will inevitably delay his execution. It's got nothing to do with guilt or innocence or justice.
5.15.2007 1:45am
Erasmus (mail):
neilalice, I said in my last post why we'd let him change his mind: his attorney did not fully inform him of his rights since the attorney had no idea of the scope of the mitigating evidence available. (As I mentioned earlier, giving competent legal advice means doing more than telling your client the legal rules: it also means applying the law to the facts. You can't do that if you don't know all -- or even most of -- the facts.)

You're trying to erect a bright line rule (no defendant can ever change his mind!), which clearly doesn't hold water here. The defendant must knowingly waive his rights, and so the quesiton is here, did the defendant knowinly waive his rights given that his attorney couldn't fully explain the nature of the right at issue? Perhaps you think ultimately the defendant wouldn't have changed his mind. That's fine. But that's where the debate is, not whether it's even theoretically possibly that the defendant could change his mind. He should have had an oppurtunity to develop evidence to support that argument. It is colorable.

And it makes no sense to say Townsend -- a case cited by the Landrigan court approvingly! -- has been overruled by the AEDPA. It's still the law.

You can frame this case as "how many hearings the federal courts think a death-row inmate ought to be given" to delay an execution. But that's just rhetoric. If Congress doesn't want federal inmates getting evidentiary hearings, then can say that.
5.15.2007 3:06am
David M. Nieporent (www):

1) He certainly knowingly waived his rights. What does that phrase mean? That one is aware of one's rights, of the consequences of exercising them or not exercising them. That was the case here, unless you find that he was mentally incompetent. He apparently understood he had the right to put on evidence about his background which might spare him from the death penalty, and that if he didn't put it on he would get the death penalty. What more do you want? The additional evidence he now seeks to introduce doesn't change that; at most, it changes how likely the so-called mitigation evidence would have been to be effective.

2) You're misrepresenting the analysis. The question isn't whether the district court had the discretion "to deny an evidentiary hearing if it believes that the allegations, if proven true, would justify relief." It might not have such discretion -- but that wasn't at issue. The issue was whether the lower court(s -- remember, the ninth circuit had to find that both the trial court and the district court abused discretion) had the discretion to decide that the allegations, if proven true, would not justify relief.

The lower courts found that Landrigan simply couldn't establish prejudice, essentially because it was Landrigan's own fault that no mitigating evidence was entered. The Ninth Circuit had no basis for overturning that.

You can frame this case as "how many hearings the federal courts think a death-row inmate ought to be given" to delay an execution. But that's just rhetoric. If Congress doesn't want federal inmates getting evidentiary hearings, then can say that.
He's a state inmate, not a federal one. And Congress didn't say it doesn't want inmates getting evidentiary hearings. What Congress DID did say was that it doesn't want federal circuit courts to decide whether inmates should get evidentiary hearings unless they can first show that the lower courts acted unreasonably in denying those hearings.

The Ninth Circuit loves relitigating issues de novo in death penalty habeas cases, but they don't get to do that.
5.15.2007 7:51am
Prufrock765 (mail):
Doesn't the District Court's decision rest, at least in part, upon the notion that under Strickland, the defendant will need to show prejudice?
How would that extra margin of effort that the 9th Circuit wants to mandate here have affected the sentencing outcome? He committed murder in Arizona during a theft after he had escaped from another prison where he was serving another sentence for homicide and in which prison he had stabbed another inmate almost to death. If this guy doesn't get the death penalty, who does?

How about we try de novo review off all 9th circuit decisions?
5.15.2007 10:31am
Erasmus (mail):

(1) As I said above, I disagree. He clearly didn't want to put on certain mitigating evidence. But he was also clear that he was fine with some mitigating evidence. Perhaps (and this is his testimony now) he would have reacted differently to hearing about the new mitigating evidence that came out, including the fact that he has a severe brain disorder. It's easy to say things like "Bring on death!" when you think most of the mitigating evidence your attorney wants to enter, you don't want entered. Perhaps if you heard his testimony about whether he would have changed his mind had he heard about the additional mitigating evidence, you wouldn't believe him. That's fine, but that's not at issue when you're deciding whether he deserves an evidentiary hearing.

(2) You note that the "lower courts found that Landrigan simply couldn't establish prejudice . . . because it was [his] own fault that no mitigating evidence was entered." Again, of course it was his fault that no mitigating evidence was entered. No one disputes that! The question is whether he would have allowed the new mitigating evidence in, had he known about it. His allegations, if true, establish that he would have -- i.e., that he would have suffered prejudice. That's a purely legal question. (Again, look at the case I noted above, which this Court cites! Don't take my word for it -- look at the citations.) Perhaps once the evidence came in, the lower courts would have found that the allegations were, in fact, false. Then the Ninth Circuit could defer to that ruling. But he made his initial decision based on bad legal advice since his attorney couldn't have advised him properly as he didn't know the facts.

. . .

I think I'm starting to repeat myself, so I've either convinced people or I haven't. With that, if anyone wants to chime in, I'll let them get the last word (unless I can help clear up a factual discrepancy).
5.15.2007 12:18pm
rothmatisseko (mail) (www):
"Why is it that 5-4 opinions authored by Justice Thomas are rare events?"

They're not. See Lawrence v. FL (Thomas). Cf. Ayers (Kennedy), Smith (Kennedy), Brewer, (Stevens), Abdul-Kabir (Stevens). With Landrigan, those are the 6 DP cases from this term. They're all 5-4, and Kennedy case the deciding vote in each. So Thomas has 2x 5-4 DP decision, Kennedy 2, and Stevens 2 from this term. As "rare" as the others'.
5.15.2007 2:21pm

I was trying to let this go, but I do have a couple of questions about your last entry. I suspect we simply disagree, but I'm genuinely curious.

There were two separate state trial-court proceedings, yes? At the first one, the sentencing hearing, Landrigan said he didn't want any mitigating evidence. Although I grant that Landrigan was then unaware of the full scope of potentially mitigating evidence (due to his attorney's poor investigation), Landrigan insisted that he wanted to present none of the (meager) evidence that he was aware of, even though he knew he was facing death. As I read the opinion, Landrigan said nothing positive about presenting mitigating evidence until more than a year later, at the second state proceeding, regarding his petition for postconviction relief.

I ask because of your comment: "But he was also clear that he was fine with some mitigating evidence."

By this are you suggesting that Landrigan was, at trial, receptive to the idea of some mitigating evidence? Or do you mean that Landrigan was "fine" with mitigation only after being sentenced to death?

This is significant for me. If Landrigan, at sentencing, did not want any mitigating evidence, then I have far less sympathy for him then I would have if, at sentencing, he was "fine with some mitigating evidence" but that his attorney's incompetence prevented him from knowing about the full scope of mitigating evidence.

As I read the opinion, it's the former situation, not the latter.

And if it's the former situation, then the judge who presided over Landrigan's trial is the best person to decide the credibility of Landrigan's change of heart regarding mitigating evidence. The trial judge should have full discretion to evaluate Landrigan's flip-flop, and she should be able to do so based solely on Landrigan's declaration (and accompanying evidence from his shrink or father or whoever). The trial judge should be able to make this call even without hauling Landrigan from his cell to testify in front of her. I can't see any reason why this second state-court decision, even if not accompanied by a full-blown evidentiary hearing, should not conclusively resolve the issue.

Which brings me to 2254(d)(2) and Townsend. After Schriro v. Landrigan, a federal district court may deny federal relief in reliance on the state judge's determination that Landrigan lacked credibility because this is, in the words of (d)(2), a "determination of the facts in light of the evidence presented [i.e., Landrigan's flip-flopping declaration] in the state court proceeding [re: the denial of postconviction relief]."

This result, including what I see as the long-overdue undermining of Townsend, is sensible and appropriate. I see no reason to require a federal court to make the same factual and credibility determination that a state judge already made.

Two hearings are more than enough.
5.15.2007 5:23pm
David M. Nieporent (www):
But he was also clear that he was fine with some mitigating evidence.
Where are you getting that from? I see no support for that anywhere in the accounts of the case. The record seems clear that until after the appeals process began, he had no interest in putting on any mitigating evidence. (Indeed, even Stevens concedes that "It may well be true that respondent would have completely waived his right to present mitigating evidence if that evidence had been adequately investigated at the time of sentencing." But puzzlingly, Stevens adds, "What is certainly true, however, is that an evidentiary hearing would provide answers to these questions." It's hard to figure out how an evidentiary hearing eighteen years after the trial can tell us what Landrigan "would have" done in a hypothetical situation.) And even if you can find some evidence to support your claim, the trial court found otherwise, and that finding is entitled to deference unless "unreasonable."

The question is whether he would have allowed the new mitigating evidence in, had he known about it.
Putting aside the legal issue, what do you mean, "had he known about it"? Of course he knew about it. It's his own life history. There wasn't really any new evidence; there was just psychobabble spin put on the same sob story evidence that he had already refused to allow to be introduced.

Getting back to the legal issue, that's not the question. The trial court, in postconviction review, already found that he would not have done so. Since the trial judge was there, he seems to be in the best position of any judge to make that determination. The legal question is whether that finding was unreasonable.
5.15.2007 7:21pm
Erasmus (mail):
neilalice, David M. Nieporent -- I think you'll get answers to your questions if you re-read Stevens dissent. I also wasn't precise when I wrote that it was clear he wanted evidence presented (at his sentencing hearing). I should have said there's good evidence -- available at the time of the sentencing hearing -- that he wanted some mitigating evidence put in the record. Clear is too strong. If you'll re-read Stevens dissent, you see that he presents why Thomas has mislead the readers by not putting the quote in context.
5.16.2007 1:22pm