The Federal government shut down on Monday because of Hurricane Sandy. Well, not the entire Federal government; the Supreme Court held oral arguments that day. (That's a picture at right of Antonin Scalia slogging his way to the court building, fighting the elements as he formulates the methods by which he will berate the lawyers appearing before him in an hour or so.) By Tuesday, however, even the Intrepid Nine succumbed to Mother Nature, and postponed that day's oral arguments until tomorrow. Such a pity; it was rumored that Justice Thomas' vow of silence had expired, and he was coming to court loaded for bear, with some twenty-odd questions with which he would riddle the advocates.
Anyway, that oral argument included the one in Chaidez v. US, the case presenting the question of whether Padilla v. Kentucky should be applied retroactively. Which is, of course, what I promised to write about today, so that's not going to happen.
Actually, there's a full slate of fascinating criminal cases on the Court's docket for this week: in addition to Chaidez, we have the Florida dog sniff cases on tap for today, and coupled with Chaidez tomorrow is Bailey v. US, which presents the question of how far removed a suspect must be from the locus of a search warrant to enable the police to detain him under the warrant. Over thirty years ago, the Court held in Michigan v. Summers that when the police execute a warrant, they can detain anyone on the premises until the search is completed. In Bailey, the police obtained a search warrant, but before they could act on it they observed two men exit the suspect house, get into a car, and drive off. The issue in Bailey is whether the warrant gave the police the right to stop the car about a mile away. I'll have a post on the dog sniff cases later this week, and will cover Bailey and Chaidez next week.
Meanwhile, back at the ranch...
The OACDL gives a two-day seminar every November for lawyers who want to qualify for represention in capital cases. (I don't handle those cases, but the last two years I've given a presentation there on Crawford, and am doing one on Frye v. Missouri and Lafler v. Cooper this year.) The first time I did it, I hung around to listen to some of the other speakers, and one presented a plan to get enough signatures to put Ohio's death penalty up for referendum.
At the time, to put it bluntly, I thought it was a goofy idea; Ohio is a moderately conservative state, and I figured that such a referendum would likely lose by a 2-1 margin. We'll probably have a better idea after next Tuesday. California is having a referendum, Proposition 34, on that very issue (as well as marijuana legalization and easing the state's three-strikes law), and the latest poll shows the measure losing 42-45. That's a lot better than the 38-51 gap measured in a September survey, but losing in one of the most liberal states in the country doesn't augur well for what the result in Ohio might be.
The main focus by California supporters is on costs: the state's legislative analyst's office has estimated that repealing the death penalty could save $100 million a year, which could increase to $130 million annually in later years. I'm not sure that's the right emphasis; in a state that faces a $15.7 billion gap in its budget for the coming fiscal year, talking about saving $100 million is like proposing that you look under the couch cushions for spare change as a means of warding off the foreclosure of your home. It may be, though, that the spate of exonerations of wrongfully convicted death row inmates will spur enough second thoughts about the issue to complement the economic arguments.
The difficulty with that approach, though, is highlighted by this story, about the press conference given by three previous California governors lambasting the proposition as "a horrible injustice," which would "wipe out the death penalty convictions of 700 killers on death row," who, the governors argue, are responsible for the deaths of 200 children and 43 police officers. "Don't let the bad guys win," urged former Governor Gray Davis, certainly not alluding to his 2003 recall election which saw him ousted from office by Ah-nold. (Oddly enough for someone whose most memorable movie role was as the Terminator, Schwarzenegger hasn't voiced an opinion on Prop 34.)
Putting the appropriate coda on the entire matter was this 9th Circuit decision on Monday, vacating the capital sentence of a California man who's been sitting on death row since his conviction in 1978, 34 years ago.