Federal Sentencing By Judge

Judges increasingly, judges like Judge Weinstein in New York. Judges are writing opinions that are getting all around on the internet explaining why these guidelines simply are not the right way to treat human beings that is; punishment by the numbers. May make federal judges comfortable if they never did any criminal law, and they want some kind of standard. But really it’s no particular standard at all. Judge Rakoff, a very fine judge who recently took senior status in New York says “The sentencing commission has never been able to articulate, articulate why they have two points for this? Two points for that. These are just numbers! And once they’re in place, the whole thing is blessed and said to be rational’. Judge Rakoff concludes “This is, I suggest, is kind of nuts”.

Federal Habeas Corpus; the state practitioners aren’t here a lot of them. You know all state criminal cases can wind up in federal court if there’s a clearly wrong application of federal law, if you make a federal claim and you’re not given a full and fair hearing in state court, if you’re given ineffective assistance of counsel in state court, all state cases can wind up in federal court. 1107 writs in capital cases are the ones that we know the most about of course until last, now 3 weeks ago, until 3 weeks ago, you could have a lawyer appointed and paid in a state 1107 writ, and that lawyer could be drunk, asleep, ignorant and not care. And you had no right to plead that lawyer’s ineffective assistance in a federal case. So, the Supreme Court is so I wrote down here “Warren wolf is a hero”.

In Trevino on May 20, march… May 28th, the Supreme Court decides that Texas which encourages you to bring your ineffective assistance claims in habeas is for all important purposes, the same as Arizona which would not allow you to bring ineffective assistance claims in state courts. And on June 3rd, 6 death row cases were remanded back to the fifth circuit to figure out what they want to do. Now, the application of this is kind of over whelming. How many people do we have on death row? We have at least these 6 who were scheduled for executions we’re sort of… at the end of their litigation.

Now it appears that if you’re at the federal court level and you want to claim ineffective assistance of council by your state habeas lawyer, when that lawyer did not raise ineffective assistance by the trial lawyers, then you have cause for the default that is; you have cause for not having presented that in state court. You may go straight in to federal court for an evidentiary hearing, on whether there was ineffective assistance at trial. You defaulted it in your state habeas because you did not have effective assistance of counsel in state habeas. And they’ve directed this whole system which is unfortunate because many of the lawyers who’ve taken these cases did it before “Wigan versus Smith” and the Supreme Court’s strong emphasis on, you know, extensive mitigation research and investigation.

Many lawyers didn’t think about how you could spend a hundred thousand dollars going through a capital defendant’s background in order to develop mitigating evidence. So, in Harris County for many years been kind of a standard deal 3500 to review the file and file a state writ, if you can find anything there. And now between “Wigan versus Smith” and Trevino there’s going to be important litigation for which lawyers will be paid raising in federal court and a DE novo hearing under federal compensation rules ineffective assistance council in state proceedings, in my opinion.

Now I want to, there’s couple of more words about Judge Edith Jones who remains an active service on the “Fifth circuit court of appeals” On June… she have a speech on February 20th and many of you know about it, there’ve been articles, she gave the speech to the federal society, the federal society was meeting at the “University of Pennsylvania law school”, a very fine law school up in Philadelphia. And there were students in that audience and professors and others who took notes of what she was saying. And they were offended and as a result of their offense, they filed a complaint in the fifth circuit asking for an investigation and possible sanctions against Judge Jones arousing from her speech.

This was filed on June the 4th including Jim Harrington from the Texas civil rights project and a number of law professors about that speech judge Jones made. Now, just some examples of what she was teaching law students at the University of Pennsylvania; certain rational groups like African American and Spanish who are predisposed to crime, are prone to commit acts of violence and get involved in more violent heinous crimes than people of other ethnicities. Mexican nationals would prefer to live on death row in the United States than in prison in Mexico. The United States system of justice provides a positive service to capital case defendants by imposing a death sentence,” a killer is only likely to make peace with God and the victim’s family, and the moment the killer faces imminent execution recognizing he or she is about to face God’s judgment. In support judge Jones signed an article; she and her husband found on the internet and titled ‘Hanging concentrates the mind’.

Now, I found this even more peculiar. Just as many innocent people were killed in drone strikes as innocent people executed for crimes. I mean it boggles the mind! You know, whatever we think of the necessity to use a drone on “Anwar Awlaki” in Yemen, to use a drone to take out someone else who’s actively instructing adherence to his particular brand of religion to go out and kill people on American soil. Whatever the wisdom of that, we all know that children and villagers get caught up in these drone strikes.

The government will admit that to you with regret, they will admit that it is not with surgical precision that people that have done terrible things and want others to do terrible things and deserve killing or caught up in this drone strike business. And so the statement just as many innocent people were killed in drone strikes as innocent people executed for crimes, does that mean a lot of people that were innocent were executed for crimes? I can’t figure it out! So the complain about judge Jones concludes during the question answer portion, she lost her composure and the host of the program ordered the program to end abruptly. Yesterday, a lawyer representing one “Elroy Chester” who sadly for everyone committed 5 murders and 25 burglaries in a very bad and lengthy spree in 1998… Mr. Chester’s lawyers of last resort filed a motion to transfer his case on which judge Jones was always on the panel, to a new panel to consider his final claims about how we define mental retardation in Texas. The motion to transfer to new panel was granted by chief Judge Carl Stewart and Judge James Dennis.

A new panel caught this case sometime late in the morning. And judges Eugene Davis, Judge Hannigson and Judge Edith Clement were able between then and 5 o clock in the evening to review a 15 year old case and determine that everything was done just fine. And Mr. Elroy Chester was executed sometime around 7 o clock. The 499th execution since Texas reinstated the death penalty in 1982. The next schedule execution will be of a lady sentenced to the death penalty out of Dallas.

It’s interesting that in the Chester final papers, the complaints was on a point that has been litigated and that I am convinced, we will look back in 10 years and what is called the “Briseno Standard” and say “I can’t believe that we use the Jose Briseno Standard to reject the opinions of experts and the opinions and standards of scientific and psychiatric and psychological societies and have a relatively soft intuitive and largely subjective standard for whether anyone is retarded or not.

Under the Jose Briseno Standard basically, if you’re smart enough to commit the crime then you’re not retarded under law and Atkins versus Virginia offers you no particular hope or at least not in the fifth circuit. I asked the public defendant of a mayor’s county who’s very experienced federal lawyer, if he know of any cases when the fifth circuit found someone retarded and Alex said,” No!” Maybe some of you know of one I couldn’t find one. There’s an irony here about Texas using the Briseno Standard to determine Aktin claims and whether someone is mentally retarded and that is the Jose Briseno on death row was a fabulous inmate! Texas defender services has reported that this year in April 2013, Jose Briseno not retarded coz he’s smart enough to do the crime, got something extraordinary, he got a commutation because he was such a good inmate, a good Christian and a helper and a witness for other inmates needing reforms.

So while poor Mr. Elroy Chester was executed because he didn’t meet the Prizeno Standards, Briseno lives though with not any particular help from the fifth circuit court of appeals. So Trevenio promises lots of work for lawyers. All these cases that are remanded are now going to have to come back down for further review. Justice Scalia! We might disagree with him often, although we kind of like him in 4th amendment context in many cases.

That actual innocence is a basis for federal habeas corpus relief the fifth circuit would say No! And the case is coming up from the fifth circuit has all said “Well you can plead actual innocence and that may be persuasive in helping the court decide whether to give you a hearing on your ineffective assistance of council claim or hearing on your Brady versus Marilyn claim but, you can be innocent and be executed, it doesn’t bother us!” well in McQuiggin, they ordered that,” Yes, actual innocence, may be a grounds for habeas corpus relief” and Justice Scalia says; quite brightly absolutely true even though he personally adheres the ‘doctrine of original intent’,” What courts have created, courts can modify”. So after Trevenio we look for perhaps a new day, maybe we won’t get to that 500th execution in Texas. Time will tell. There’s nothing new of course about what Judge Scalia ha discovered. This quote from Oliver Wendell Holmes has often been paraphrased to me as,” the law is what the courts will do in fact and nothing more pretentious” and what the courts will do in fact of course has everything to do with what we will do in the courts. Thank you very much.