While We’re on the Subject. . .


In his bookMaking Habeas Work: A Legal History, Eric Freedman analyzes how essential the writ of habeas corpus is to a free society, going back to this country’s earliest cases, “and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.”

In the Texas Tribune, Jolie McCullough examines the Texas clemency process in the wake of last month’s execution of Christopher Young, whose clemency petition was unanimously rejected by the Texas Board of Pardons and Paroles, “often the final check in the death penalty process before an inmate is sent to the death chamber.” She notes that immediately after the rejection, Young’s lawyers filed a lawsuit against the board members, “claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.” McCullough says that even though the lawsuit was unsuccessful it did highlight a longstanding problem with the board. “Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision.”

In their article, “Federal Death Penalty Prosecutors Accuse One Another of Destroying Evidence and Other Misconduct in Discrimination Lawsuit,” in the July 18 issue of the Intercept, Shawn Musgrave and Brooke Williams reveal how a team of federal prosecutors in the Capital Case Section of the Justice Department “has been hurling incredible, on-the-record accusations against one another — from neglecting boxes of evidence to destroying interview notes.” The result, the writers say, is that “defense attorneys are questioning the capital case unit’s overall integrity.”

In “Tennessee’s Death Penalty Lottery,” in the Tennessee Journal of Law & Policy, Bradley A. MacLean and H.E. Miller, Jr. analyzed all of the state’s capital cases since 1977, when Tennessee instituted its current death penalty system. The authors find that although the state’s scheme was designed to meet the requirements of the U.S. Supreme Court’s ruling in Furman v. Georgia, and was purportedly structured to reduce the risk of imposing the death penalty arbitrarily, instead “it has entrenched the very problems of arbitrariness that Furman sought to eradicate.” They point out that since 1977, Tennessee has sentenced 86 people to death of the more than 2,500 found guilty of first-degree murder but has only executed six of those defendants, and they ask, “How are those few selected?”.

In the American Criminal Law Review article, “Suspect Evidence and Coalmine Canaries,” Russell D. Covey “explores the hypothesis that use of certain types of unreliable evidence — such as jailhouse informants — acts as evidentiary ‘canaries in the coal mine,’ indicating overly aggressive and potentially improper police and prosecutorial conduct.” Covey focuses on three types of suspect evidence, including “jailhouse informants, microscopic hair comparison, and bitemark comparison as strong potential indicators of official misconduct.”

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