Good News: Mr. Death loses a couple
We start with some good news - not outstanding good news, but I expect we can call it good news - on the death penalty. Two recent Supreme Court rulings "tinkered with the machinery of death," in former Justice Harry Blackmun's famous phrase, in ways that make it just a tiny bit harder for the hangman to get his coin.
First, on May 23 the Supreme Court issued a 7-1 ruling - only Clarabell Thomas dissented - that made it clear the court would not stand for the attempts of those trying to wriggle their way out of providing court-mandated protections for those accused of capital crimes.
The case was Foster v. Chatman and it involved one Timothy Foster. In 1987, Foster - poor, young, African-American, and intellectually disabled - was convicted of the murder of an elderly white woman in rural Georgia by a jury that had been stripped by prosecutors of any potential black jurors.
The lack of black jurors allowed Foster's lawyers to call for a "Batson hearing," named for the Supreme Court case called Batson v. Kentucky, which found that the use of race in jury selection is a violation of the rights both of the defendant and the juror. At such a hearing, the prosecution is expected to show race-neutral reasons for its preemptory challenges of potential jurors.
In this case, they did.
Or at least they claimed to have done so. Because years later, it was discovered that the prosecution's trial notes specifically identified potential jurors by race, going so far as to circle the word "black" on each black juror's form, marking the names of black jurors in green highlighter, and giving them a code number.
Despite this overwhelming evidence of racist intent, lawyers for the state of Georgia actually tried to argue before the Supreme Court that this was not evidence of bias but had only been intended to prepare a defense against a claim of bias. If that sounds stupid to you, you're not alone. Even Chief Justice John Roberts, hardly some flaming lefty, called the argument "Nonsense."
This ruling does not overturn Foster's conviction, but it does mean he can apply for a new trial with a hopefully not racist jury. If the grim reaper wants his shot as Timothy Foster, well he's just gonna have to wait.
The other case arises out of Arizona, where Shawn Patrick Lynch was on death row for a 2001 robbery-murder after being sentenced to death by a jury. The legal ping-pong within the Arizona courts and between Arizona and the Supreme Court is a little complex, but here is the root of it:
At the sentencing part of his trial, Lynch and his attorneys were specifically barred from telling jurors that if they sentenced him to life in prison rather than death, that it would be life in prison without parole. And even as he was barred from telling jurors that, the prosecution was telling jurors to consider Lynch's "future dangerousness" in making their decision.
And why was that okay, according to Arizona? In an argument every bit as lame as Georgia's, the state told the Supreme Court that "well, y'know, someday in the future maybe the legislature might kinda change the law and allow him to get parole, so y'see, he is maybe eligible for parole and so it's okay he couldn't tell the jury what the law is."
Right. Nobody should buy that and SCOTUS didn't, with only the death-eaters Thomas and Sam Alito dissenting.
It was not a major decision and, like Foster, probably won't have a major impact because both turned on relatively narrow points of law. But together they do indicate a little bit of reluctance to smooth the way to the abattoir. And that is good news.
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