Articles Posted in Criminal Procedure

Amherst professor Austin Sarat comments on Justice Clarence Thomas’s dissent from the U.S. Supreme Court’s refusal to dismiss a lawsuit challenging the constitutionality of Alabama’s use of lethal injection as a method of execution. Professor Sarat argues that Justice Thomas has seldom come across a death sentence he wouldn’t uphold or an execution he wouldn’t try to expedite—and his opinion in this case was no exception.

Amherst professor Austin Sarat argues forcefully that the U.S. Supreme Court should stay the execution of Richard Glossip, whom Oklahoma is planning to execute on May 18 despite serious doubts about the fairness and reliability of his conviction. Professor Sarat points out that the Oklahoma Attorney General supports Glossip’s application for a stay, recognizing that to carry out the execution would irreparably harm both the defendant and the integrity of Oklahoma’s justice system.

Criminal defense attorney and former federal prosecutor Jon May discusses the rules regarding televising high-profile trials and calls for the trials of former President Donald Trump to be televised in the interest of transparency. Mr. May argues that courts have adequate procedural controls to ensure jurors and the judicial process are sufficiently protected and that televising the trials will allow anyone, anywhere in the country or the world, to see the truth for themselves.

Amherst professor Austin Sarat comments on two cases currently working their way through the Arizona court system, in which defense lawyers from the Capital Unit of the Maricopa County Office of the Public Defender are raising innovative arguments based on the systemic racism in all aspects of American life. Professor Sarat argues that these carefully crafted and extensively documented motions call on judges to confront the reality of America’s racist past and continuing institutional racism before allowing the government to carry out any more “legal lynchings.”

Amherst professor Austin Sarat comments on the many attempts by South Carolina to resume executions in that state. Professor Sarat describes the recent history of capital punishment in that state and notes that a recent decision by the South Carolina supreme court put on hold a case involving death row inmates’ challenge to the state’s attempt to use the electric chair and the firing squad.

UConn School of Law professor Julia Simon-Kerr comments on a case that squarely presents the question whether the courtroom demeanor and body language of a non-testifying defendant can play a role in the jury’s consideration of guilt or innocence. Professor Simon-Kerr points out that despite research showing no evidence that we can learn much, if anything, about a person’s untruthfulness from nonverbal cues, jurors frequently rely on those factors in deciding the credibility of witnesses and, apparently, even the culpability of non-testifying defendants. She suggests that it although it is unlikely the Supreme Court will agree to hear the case, the case presents the Court with a unique opportunity to begin a long overdue reexamination of the privileged role of demeanor in our system of proof.

Attorney Jon May predicts that within the next six months, former President Donald Trump will be indicted for violating the Espionage Act arising from his possession of classified documents after he left the White House. Mr. May describes some of the challenges that potentially classified evidence poses for both Trump’s defense and for the prosecution.

Amherst professor Austin Sarat argues that there should be a constitutional right to counsel throughout the execution process, particularly given the frequency with which serious errors occur during that time. Professor Sarat calls upon courts to recognize that the execution process is a “critical stage” of a criminal proceeding deserving the defendant’s right to legal representation.

Amherst professor Austin Sarat comments on the case of Kenneth Smith, whom Alabama plans to execute by lethal injection on November 17 based on a judge’s decision overriding a jury’s determination that he be sentenced to life in prison rather than death. Professor Sarat explains why such judicial override cases are so unjust, particularly given that Alabama has repealed judicial override (but not retroactively).

Amherst professor Austin Sarat comments on Alabama’s recent aborted execution of Alan Miller. Professor Sarat describes how the U.S. Supreme Court allowed Miller’s execution to go forward despite a serious dispute about whether Miller submitted a form electing an execution method other than lethal injection.

In light of 2022 marking the tenth anniversary of the Supreme Court’s decision in Miller v. Alabama, Amherst professor Austin Sarat points out how important that decision was and how much still remains to be done to stop juvenile life without parole (LWOP) sentences. Professor Sarat points out that with the scientific recognition that the development of the human brain is not complete until a person is in their 20s, it does not make sense to treat child offenders the same way we treat adult offenders.

Amherst professor Austin Sarat comments on the Supreme Court’s recent decision in Nance v. Ward, holding by a 5-4 majority that death row inmates can file suits using 42 U.S.C § 1983. Professor Sarat argues that lethal injection specifically and executions generally are necessarily inhumane, brutal, and savage.

In this second of a series of columns on Dobbs v. Jackson Women’s Health Org., attorney Jon May argues that the decision threatens certain fundamental rights conferred by the Fourth Amendment. Mr. May predicts that those rights will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smart phones and computers, or stopping and searching us on the streets without probable cause or reasonable suspicion.

Amherst professor Austin Sarat comments on the recent decision by the U.S. Supreme Court in Shinn v. Ramirez, in which the Court held that federal judges may not intervene in state cases to protect the Sixth Amendment right to the effective assistance of counsel, even when there is evidence evidence that the condemned might be actually innocent. Professor Sarat points out that the decision demonstrates the conservative Justices’ prioritization of finality over justice and serves only to further erode confidence in and support for capital punishment in this country.

Cornell Law professor Joseph Margulies explains why, when asked how he can defend someone accused of horrible crimes, he no longer uses the response that most criminal defense lawyers use—that a lawyer doesn’t defend their client’s behavior but instead holds the government to its burden by zealously defending their client’s rights. Instead, Professor Margulies responds to that question that he is defending the client’s humanity against society’s impulse to reduce a defendant to their deed, imprisoning them in their past.

Amherst professor Austin Sarat comments on the recent botched execution of Clarence Dixon in Arizona, pointing out that the repeated efforts to place the IVs demonstrate that lethal injection is not a humane process. Professor Sarat describes the importance of time in the execution process and argues that courts assessing the start time of an execution (for purposes of Eighth Amendment challenges and Double Jeopardy challenges) should start the clock from the moment of the first physical invasion of the inmate’s body, contrary to the Ohio Supreme Court’s determination that the insertion of IV lines is “merely a ‘preparatory’ step to the execution.”

In light of the fifth anniversary of Arkansas’s capital punishment spree, Amherst professor Austin Sarat describes some of the major flaws of the death penalty. Professor Sarat points out that although lethal injection was once touted as a technological miracle that would ensure executions would be safe, reliable, and humane, the practice has had a history marked by problems, mishaps, and mayhem.

Cornell Law professor Sherry F. Colb comments on a case pending before the U.S. Supreme Court that presents the question whether a plaintiff may sue a police officer for an interrogation that violates the rules announced in Miranda v. Arizona and results in a statement that the prosecution introduces at the plaintiff’s trial, which ends in acquittal. Professor Colb argues that whether one views adherence to Miranda as a constitutional requirement or instead as a prophylactic sub-constitutional practice should have little bearing on the outcome of the case.

Amherst professor Austin Sarat describes how courts in Europe, when faced with the question whether to extradite an escaped convict to the United States, have expressed greater concern about the conditions of American prisons than do American courts or legislatures. Professor Sarat argues that it is time for American courts to redress prison conditions and ensure that when we send someone to prison, we respect and protect their constitutional rights.

Former federal prosecutor Dennis Aftergut argues that the sentencing of Ahmaud Arbery’s killers last week demonstrated institutions and individuals within the judicial system operating at their best. Mr. Aftergut praises Judge Timothy Walmsley in particular for listening attentively to the victim impact statements and for deliberating on them before handing down the sentences.