Thursday Roundup
Spring is in the air, and so is death. California and Ohio are dissimilar in so many ways -- climate comes to mind right now -- but they share one problem: they're running out of space to keep people they intend to eventually kill. As the LA Times reports, Governor Jerry Brown is looking for the legislature to appropriate an additional $3.2 million for 100 more prison cells for people on death row.
Here in Ohio, we're running into the same logjam: since Dennis McGuire's botched execution two years ago, we haven't killed anyone, and now have twelve executions scheduled with another eight to be set. Part of the problem is that the two-drug combination we used to create the horror show that McGuire's execution proved to be has been abandoned, and we're trying to find a new supply. That search presumably will be helped along by the passage last year of a bill allowing us to sign secret contracts with "compounding pharmacies" which will create the death drugs, because the pharmaceutical companies won't sell them to us anymore.
Once that's done, Ohio can get back to reducing its inventory of condemned prisoners, something it's proved efficient at doing. Only one state north of the Mason-Dixon line, Missouri, has executed more people than Ohio since capital punishment was reinstated in 1977, and in the last five years, the comparative tally is Ohio 20, California zip. Makes you proud.
Ask and ye shall be answered. I never prepare any notes for oral argument. I develop a theme, a general idea of the arguments I need to make, and then use the time to respond to the judge's questions, trying to draw them back to the theme. That works pretty well.
Except sometimes, like the oral argument I had yesterday, they don't ask any questions. At one point, one judge cleared her throat, and I looked eagerly toward her, hoping she'd ask me something to interrupt my soliloquy.
No luck, but it turned out they had a lot of questions for the prosecutor. Good thing or bad thing? Good thing, I decided after coming across this post on the SCOTUSnow blog. (As opposed to SCOTUSblog. Not the same thing.) The post refers to two law review articles in which the authors promote the idea that "the party that receives the most questions from the Justices during oral argument is more likely to lose."
So, should I don the party hat? Probably not so quickly; the author of the post applied that methodology to the 2014 term, and so far he's correctly predicted 14 of the 26 cases, one better than he could have gotten from a coin flip.
Trash pulls gone wrong. A couple months back I wrote about the Supreme Court's decision in State v. Jones, in which the court held that evidence found in a trash pull, combined with other information corroborating the presence of drugs in a house, was sufficient probable cause for the issuance of a search warrant. Most interesting about the case was the Attorney General's insistence as an amicus to the prosecutor's office that corroborating evidence wasn't necessary; the trash pull itself was sufficient. Thankfully, the court found it unnecessary to even consider that argument.
Thankfully. The Cambridge, Maryland, police had nothing more than an anonymous tip and two plastic bags found in a trash pull, each containing marijuana residue, to get a search warrant and have a SWAT team raid the apartment of Andrew Cornish at 4:30 AM on May 6, 2005. Cornish emerged from his bedroom carrying a sheathed knife, and the police shot him dead. The cops found a "small amount of marijuana" in the apartment.
Cornish's father sued the cops, and seven years later, a jury awarded him $250,000. Last month, the Fourth Circuit reversed by a 2-1 vote.
Radley Balko does a terrific job of pointing out how absurd the decision is in virtually all respects, and I'd heartily recommend a full read to learn just why suing the police for one of these raids-gone-wrong faces nearly insurmountable obstacles. But here's one for Scalia to think about if one of these cases ever reaches the High Court, given his bent for originalism:
If the Fourth Amendment is due to the Founders' offense at British soldiers forcibly entering homes in daylight hours after knocking and announcing to search for contraband, it seems safe to say that the Founders would be appalled by the fact that today, dozens of times each day, heavily armed government officials break into homes, often at night, without first knocking and announcing, in order to conduct searches for contraband.
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