Tuesday, March 22, 2005

I dissent. Think of me as the nine and three-quarters justice:

BROWN V. PAYTON (03-1039)
346 F.3d 1204, reversed.

At the beginning of this month, the court in a clear case of judicial overreach, struck down all death sentences imposed on minors. Roper v. Simmons. Apparently wanting to show that he was not a cheese-eating surrender monkey (audio), Justice Kennedy, of Rubicon fame, upheld a sentence of death after the prosecutor repeatedly lied to the jurors about what could and could not be considered as mitigation in the penalty phase of the case.

Specifically, as Kennedy himself notes,

In his closing, the prosecutor offered jurors his opinion that factor (k) did not allow them to consider anything that happened “after the [crime] or later.” Id., at 68. The parties do not now dispute that this was a misstatement of law.
One must see the dissenting opinion by Justice Souter to see how persistent and egregious this "misstatement of law" was. See § II.

It could be that the jury could have come back with the exact same sentence, even if the prosecutor hadn't lied to the jury, but we will never know. For the Court today has held that a prosecutor, the agent of the state, can mislead a jury in a capital case and allow him to trick that jury into thinking it must disregard all mitigating behavior following the crime.

What is surprising is that he didn't cite to well-settled law in places such as Cuba, North Korea, Saudi Arabia and Vietnam.

Ahh, the sweet mysteries of life.

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