Tag Archives: Supreme Court

SCOTUS to Arar: the USA Can Send You to Be Tortured

June 16, 2010 at 2:30 PM

Maher Arar is reunited with his family after being released from Syria where he was held for almost a year without charge.

Maher Arar is a 34-year-old engineer and Canadian citizen born in Syria. According to Arar, in 2002, while he was in transit in New York City’s JFK Airport, after coming back from a vacation with his family, he was interrogated and detained by U.S. Officials alleging presumed links to al-Qaeda. Days later, he was secretly rendered to Syria, where he was held for almost one year under no formal charges, constant torture –including severe beating and the constant threat to be tortured harder— and was forced to falsely confess his links to the organization.

Most of the time he was held on a three feet wide, six feet deep and seven feet high cell, with no windows and with rats and cats everywhere.  After his release to Canada, the Government created a Commission of Inquiry that cleared Arar from all terrorist allegations and entitled him to compensation.

In 2004, in order to determine the responsibility of the U.S. Officials involved in his rendition to torture, Maher Arar filed a suit in the District Court for the Eastern District of New York against former Attorney General John Ashcroft, FBI Director Robert Mueller, and Homeland Security Director Tom Ridge, as well as numerous Immigration Officials. However, the District Court of Brooklyn dismissed the suit, based on national security grounds. It held that the reasons why Arar was considered a member of al-Qaeda and transferred to Syria, were state secrets and that their disclosure would reveal intelligence methods, affecting national security and U.S. foreign relations.

In 2006, he appealed the decision before the Second Circuit Court of Appeals, which upheld the dismissal, and for those reasons, in 2010, he petitioned the U.S. Supreme Court to review his case.

On June 14, 2010, the Supreme Court rejected his writ of certiorari, eliminating Maher Arar’s last hope to find an answer in the U.S. judicial system for the “egregious wrong done” to him, as one of his lawyers said.

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Will the Supreme Court force Texas to allow scientific testing?

May 24, 2010 at 12:21 PM

Today the U.S. Supreme Court announced that they will hear the case of Henry “Hank” Skinner. Skinner, on Texas death row since 1993, is arguing that he should be allowed to use federal civil rights law to obtain DNA testing that might establish his innocence.  The hearing will take place this Fall.
 
Skinner’s guilt has been in question since the time of his conviction, and DNA testing, if allowed, could well provide some answers. Prosecutors have tried to prevent Skinner from getting the evidence tested, while Skinner’s lawyers have tried to use civil rights litigation to gain access to the DNA evidence.  As noted previously in this space, such efforts to suppress scientific inquiry that could resolve doubts and answer questions are nothing new in the Lone Star State.

In 1993, Henry Skinner was convicted in Texas of murdering his girlfriend and her two sons.  Although present when the three victims were murdered, Skinner argues he was intoxicated and passed out, thus incapable of committing the crimes. Skinner continues to seek DNA testing of crime scene evidence that has not yet been scientifically examined, and the testing of which he claims would clear him. In March, Skinner was less than an hour away from execution when the U.S. Supreme Court granted him a stay in order to have time to consider the petition they have just agreed to hear.

Courts Ignore Secret Affair in TX Death Penalty Case

April 20, 2010 at 10:37 AM

EqJustUnderLawIn the context of the Troy Davis case, I’ve written quite a bit about how the US Supreme Court, so far, as avoided taking a definitive position on whether it’s constitutional to execute someone who can establish his innocence.  Yesterday, the Supreme Court declined an opportunity to decide whether a sexual affair between a judge and prosecutor resulted in an unfair trial for the defendant. 

Both of these questions ought to be no-brainers.  No, you should never execute people who have established their innocence; and yes, a judge-prosecutor romance should lead to a new trial for the defendant.  But for Charles Dean Hood, whose case the high Court brushed off yesterday, no new trial will be forthcoming.  He will remain on death row in Texas, awaiting a re-sentencing hearing on an unrelated issue.

In response, former Texas Governor Mark White, and former FBI director William Sessions, both of whom now work for criminal justice reforms with the Constitution Project, admonished the Court for its “indifference to such paramount injustice” and said:

“The relationship between the judge and prosecutor in this case breached every standard of fairness that we rightfully expect from our country’s criminal justice system, casting grave doubt on the impartiality of the trial in this case and tarnishing the reputation of the judiciary and our criminal justice system as a whole.”

A criminal justice system is only effective when the public has faith in its fairness and accuracy.  The failure of the courts in this case to address a blatantly obvious injustice can only shake public confidence in our system’s ability to be fair and get things right.  This is bad for all of us.  Our courts need to step up to the plate and hear these fundamental questions, instead of continually passing them off until they disappear.

Texas Death Sentence Overturned; Judge-Prosecutor Affair Overlooked

February 24, 2010 at 3:04 PM

Back on September 16, 2009, the day before the 222nd anniversary of the US Constitution, the Texas Court of Criminal Appeals (TCCA) chose NOT to decide whether Texas death row inmate Charles Dean Hood was denied a fair trial because the judge and prosecutor in his case were sleeping together.  The court avoided taking any responsibility for this embarrassing question by ruling that Mr. Hood should have raised that particular issue earlier, even though he couldn’t – the affair wasn’t confirmed until June of 2008. 

Mr. Hood’s execution had nonetheless been postponed because of a separate issue, a claim that the jury did not properly hear mitigating evidence about his harsh childhood that might have led them to vote for a sentence other than death.  And it was on this considerably less sexy claim that the TCCA today threw out his death sentence and ruled that Charles Dean Hood should get another sentencing hearing. 

Today’s ruling contradicts a decision the TCCA made on the same issue in 2007, when they rejected a new sentencing trial.  And it once again evades the larger question:  Did the judge and prosecutor’s sexual relationship compromise Mr. Hood’s right to a fair trial?   Isn’t this affair an “obvious and outrageous constitutional violation” (as Andrea Keilen of the Texas Defender Service put it)?  A petition on THAT question is now before the US Supreme Court, supported by an impressive array of former judges and prosecutors, including a former Texas Governor.

Military Service, PTSD, and the Death Penalty

December 1, 2009 at 10:21 AM

A day before President Obama is to announce plans for escalating troop deployments in Afghanistan, the US Supreme Court issued an important ruling concerning returning veterans overwhelmed by the trauma of combat.

The Court on Monday sent the death penalty case of George Porter back to the state of Florida for re-sentencing, without bothering to hold a hearing.  The 15-page order featured a passionate (by Supreme Court standards) honoring of Porter’s Korean War service and a compassionate recognition of the debilitating effects of the subsequent trauma he suffered.  The Justices ruled that the Porter’s lawyer was constitutionally deficient for failing to provide the jury with information about his Porter’s military service and the severe mental health consequences that followed.
 
A reasonable jury, the Court concluded, would likely recommend a life sentence if confronted with such compelling testimony. 

“The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.”

The Court’s ruling could prove to be quite important; veterans are not unknown on America’s death rows.  Just this November, Virginia put to death two veterans of US military service – John Allen Muhammad, who served in the first Gulf War, and who had severe mental illness claims similar to Porter’s; and Larry Bill Elliott, a former military intelligence officer. 

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Is Justice Scalia a Curmudgeon?

September 3, 2009 at 2:48 PM

Bob Barr thinks so.  In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.

Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed.  Barr believes that it does.

“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”

Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:

“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”

The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.

Obama Embracing Bush Legacy

July 1, 2009 at 3:26 PM

The Obama administration is reportedly close to finalizing the outlines of a new preventative detention regime likely to be crafted along the lines proposed by Matthew Waxman in a paper released last week by the Brookings Institute.

Waxman’s paper tries to reconcile the supposed need for some form of administrative detention without trial with the Supreme Court’s Boumediene v Bush decision affirming the habeas rights of Guantanamo detainees and he proposes introducing legislation to create a new category of administrative detention subject to periodic judicial review.

An increasingly familiar pattern is once again being repeated. The administration ‘discovers’ that the issues it is facing are tougher than it had anticipated, sees some merit in the approach adopted by the Bush administration, promises to make some minor adjustments to preexisting conditions, and finally undertakes to implement this revised policy with a sensitivity the previous administration lacked.

However, such changes amount to little more than putting lipstick on a pig. Closing Guantanamo was always going to require taking some unpopular and morally courageous decisions but the President who declared in his inaugural address that he rejected the false choice between our safety and our ideals has sadly gone AWOL.

To codify administrative detention would be to perpetuate a system that has to date incarcerated more innocent people than it has men of violence on the basis of half-truths and innuendo.

The ordered release last week of Syrian-born detainee Abd Al Rahim Abdul Rassak al Janko provided further proof of the flimsy grounds on which many of the detainees at Guantanamo have and continue to be held.

Al Janko freely admitted staying for five days at a guest house run by Al Qaeda in 2000 and for a further 18 days at an Al Qaeda-run camp as a refugee making his way towards Europe. However, Al Qaeda militants suspected Al Janko of being a US spy and he was detained for three months and tortured until he admitted to these charges.

Al Janko was then handed over to the Taliban and imprisoned for a further 18 months. Having nowhere else to go, he remained behind in the prison after it was abandoned by the Taliban and was discovered there by US forces when they occupied Kandahar in the fall of 2001.

US soldiers also found a video which showed Al Janko being tortured by members of Al Qaeda. In true Kafkaesque style the video has been used by government lawyers as proof of his association with the group.

The Al Janko case demonstrates that arguments that the Obama administration will do a better job of separating the wheat from the chaff than their predecessors hold little water. In his scathing dismissal of the case, District Court Judge Richard Leon described administration lawyers as “taking a position that defies common sense” and it should be noted that this administration has fought Al Janko’s release tenaciously through the courts despite its manifest flaws.

We should not ignore the fact that it took a real court to make an effective determination about Al Janko’s status, and that this administration flunked that same test. Creating a legal framework for indefinite detention is a profound mistake. Since 1783 there has only been one standard in the United States for incarceration and that is conviction in a court of law.

Twice before in our history this standard has been ignored in times of crisis – during the Civil War and during World War II. The suspension of habeas corpus and the internment of Japanese Americans left a lasting stain on two of America’s most successful presidencies. The detention regime created at Guantanamo by President Bush added a third to a rather less illustrious presidency.

It is not too late to prevent the Obama administration repeating this mistake. Amnesty International USA has launched an online action campaign to petition President Obama to reconsider. We need your help to prompt a change of direction before fear mongering once again overcomes the angels of our better nature. Please visit our site today and add your voice to the thousands already raised in protest.

Troy Davis Decision: No Decision

June 29, 2009 at 2:50 PM

Today, on its last day of work before summer vacation, the U.S. Supreme Court postponed its review of Troy Anthony Davis’ case until September.  As Amnesty International has repeatedly pointed out, Davis was sentenced to death for the 1989 shooting of a police officer in Savannah in the absence of any physical evidence against him and based solely on the testimony of 9 witnesses.  Since the trial, seven of the nine witnesses have recanted their statements or have changed them.  Moreover, nine affidavits exist that implicate one of the remaining two witnesses in the murder.   Doubts about the fairness of the verdict have arisen even among the jurors in Troy’s case who, eighteen years ago, unanimously sentenced Davis to death.

The Court’s decision (or non-decision) comes amidst a groundswell of local activism in Savannah, where citizens are demanding that the new District Attorney, Larry Chisolm, reopen the case due to the major doubts about Troy Davis’ responsibility for the crime. Today’s non-decision is also significant, in that it may show that at least some Supreme Court Justices are concerned about whether strong claims of innocence are getting adequate review in our lower courts.

In September, the U.S. Supreme Court could reject Troy’s petition.  Or they could agree to hold a hearing on Troy’s case or remand it to the federal District Court for a new hearing.  This would allow the new evidence available in this case to finally be examined in open court and would signify that fairness, at least in this case, is a priority over “finality”—something immensely important in the case of the death penalty, where mistakes, arbitrariness and bias are all too common.

"A Hole in the Law?"

November 12, 2008 at 5:54 PM

Earlier today, the Supreme Court heard oral arguments in Bell v. Kelly, a Virginia case that has important implications for death penalty litigation.

The issue in the case is complex.  Under federal law, federal courts are required to give great deference to state court rulings on claims raised in a federal  habeas petition that have already been adjudicated in state courts.  So, a federal court will NOT consider whether the state court’s decision was right or wrong, but only whether it was “unreasonable”. 

But what if the petitioner brings new evidence on a claim to the federal court, evidence the state court never considered?  Does the federal court still have to be deferential, despite the fact that it has more information at its disposal?  Or can it proceed as if the claim is new, and rule on its merits, not just on the reasonableness of the state court’s judgment?

Bell is claiming that a federal court wrongly deferred to a state court’s ruling on his claim of ineffectiveness of counsel.  Bell argues that although his claim was heard by a state court – which denied him relief – the ineffectiveness of counsel claim he raised in the Court of Appeals for the Fourth Circuit was based on new evidence and thus should have decided on the merits.  Instead, the Fourth Circuit – erroneously, Bell contends – deferred to the state court’s original ruling.  Essentially, the new evidence was never a factor.

So, in a somewhat spirited debate, the Supreme Court today faced an important question: 

If the Court rules in favor of Bell, there is a risk, as Justice Alito noted today, that prisoners’ attorneys will simply need to “find some additonal mitigation evidence” to get a review on the mertis.  Yet, if the Court finds this risk to be too great, and rules that the Fourth Circuit was right to defer to the state court’s judgment, there is a risk that legitimate new evidence will never be heard by a federal court.  This, as Justice Souter suggested today, would be “a very clear hole in the law.”  If the Court accepts that this hole exists, it will be more difficult in future cases to have new evidence heard, or to overturn state court judgments that are not clearly unreasonable (even if they might be wrong).