Lost Lives: Miscarriages of Justice in Capital Cases

Gross discusses the incidence of erroneous convictions for capital murder, which are systematic consequences of the natuere of homicide prosection in general and capital prosecution in particular

Souter Passant, Scalia Rampant: Combat in the Marsh

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas

Law in the Backwaters: A Comment of Mirjan Damaška\u27s Evidence Law Adrift

The most problematic part of Professor Mirjan Damaška\u27s fine book is the title.\u27 Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over questions of law, and that this division is necessary for the operation of exclusionary rules because it makes it possible to keep the excluded evidence from the notice of the trier of fact. Second, our privatized system of factfinding is based on party control over the production of evidence, which polarizes the presentation and makes the evidence itself suspect. Finally, the use of one-time, single-case juries requires concentrated trials that take place in a continuous and comparatively compact period of time. Given this temporal concentration, questions about the reliability of evidence must be resolved quickly-frequently on the spot-which limits the possibility of additional investigation or rebuttal, and favors exclusion as a remedy. Professor Damaška\u27s argument (to which I have not nearly done justice) is rich and for the most part persuasive. But why call it Evidence Law Adrift? A stronger case could be made that evidence law is fixed in place, or at least tightly tethered

We Could Pass a Law ... What Might Happen if Contingent Legal Fees Were Banned

This is an exercise in fantasy. My task is to imagine what would happen if we simply abolished the institution of the contingent fee by statute. I cannot justify that task on grounds of urgency. Contingent fees are not about to be abolished, and they probably.are not going to be seriously restricted. My hope is that the exercise will be amusing in itself, and that in the process we might learn something about contingent fees as we now use them

Law in the Backwaters: A Comment of Mirjan Damaška\u27s Evidence Law Adrift

The most problematic part of Professor Mirjan Damaška\u27s fine book is the title.\u27 Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over questions of law, and that this division is necessary for the operation of exclusionary rules because it makes it possible to keep the excluded evidence from the notice of the trier of fact. Second, our privatized system of factfinding is based on party control over the production of evidence, which polarizes the presentation and makes the evidence itself suspect. Finally, the use of one-time, single-case juries requires concentrated trials that take place in a continuous and comparatively compact period of time. Given this temporal concentration, questions about the reliability of evidence must be resolved quickly-frequently on the spot-which limits the possibility of additional investigation or rebuttal, and favors exclusion as a remedy. Professor Damaška\u27s argument (to which I have not nearly done justice) is rich and for the most part persuasive. But why call it Evidence Law Adrift? A stronger case could be made that evidence law is fixed in place, or at least tightly tethered

Substance and Form in Scientific Evidence: What Daubert Didn\u27t Do

On its face, Daubert v. Merrell Dow Pharmaceuticals was about as easy a case as the Supreme Court gets. The plaintiff claimed that their birth defect were caused by the anti-nausea drug Bendectin, which their mothers had used during their gestation. In response to a motion for summary judgment by the defendant, the plaintiff presented affidavits of eight expert witnesses who offered their opinion - based on a variety of studies- that Bendectin was indeed the culprit. The federal district court that heard the motion granted summary judgment to the defendant, and the Ninth Circuit affirmed. Both lower court held that critical portions of the plaintiff \u27 evidence were inadmissible, and that without that evidence the plaintiffs had not met their burden of producing sufficient evidence to present a genuine factual dispute. The first holding - that this expert evidence was inadmissible - was the sole issue in the Supreme Court

Souter Passant, Scalia Rampant: Combat in the Marsh

Kansas law provides that unless a capital sentencing jury concludes that the mitigating factors that apply to the defendant’s crime outweigh the aggravating factors, it must sentence the defendant to death. The Kansas Supreme Court held that this law violates the Eighth and Fourteenth Amendments because it “impermissibly mandates the death penalty when the jury finds that the mitigating and aggravating circumstances are in equipoise.” On June 26, in Kansas v. Marsh, the Supreme Court reversed in a 5 to 4 opinion by Justice Thomas

Reply to Daniel Polsby (Symposium: The New York Death Penalty in Context)

I\u27d like to offer a few words in response to Professor Polsby\u27s articulate, forceful and amusing essay in favor of capital punishment

The Romance of Revenge: An Alternative History of Jeffrey Dahmer\u27s Trial

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After the verdict, a minister who had counselled members of the victims\u27 families told the Chicago Tribune, I think this will be the beginning of a healing. At his sentencing two days later, Dahmer said, I take all the blame for what I did... Your honor, it is over now. This has never been a case of trying to get free. I never wanted freedom. His lawyer told the press that no appeal was planned. What happened after Dahmer\u27s arrest is of minor importance by comparison with what he did, which is unspeakable. Still, the criminal justice system did very well in this case. It handled a revolting set of crimes and a potentially explosive trial with as much civility, compassion, and dispatch as possible. Half a year after the arrest, the trial was truly over, and, let us hope, the healing did begin. Jeffrey Dahmer was tried in Wisconsin - one of the fourteen American states that have no death penalty. How would this drama play in one of the thirty-six other states? He would certainly be charged with capital murder, and then a new set of horrors would begin