marlene wrote:As noted several times, Delucchi specifically cites Wainright v. Witt as his justification, over Geragos's objections, so he has put himself under the burden of meeting that
standard.
Yes, indeed, as is noted and quoted on p. 73 of the brief, for example.
The main thing I'd add is that since _Witherspoon_ and _Witt_ are the law of
the land as to who _cannot_ constitutionally be excluded for cause in
capital case, Judge Delucchi would be under the burden of meeting those
cases in any event -- or, in practice, as long as Geragos objects or submits
a juror under his standing objection to disqualification merely on the
judge's ground that "Under _Wainwright v. Witt_, if you are opposed to the
death penalty, you are not qualified to serve as a trial juror in this type
of a case." (Brief, p. 74) And Geragos did just that.
mschulter, writing an amicus brief is a great idea. What can we do
to help?
Thank you for the encouragement! One question is which attorney, group of
attorneys, or organization would file the brief. As a nonlawyer, I obviously
wouldn't try to do it myself, and often these briefs are filed by various
advocacy groups, legal societies, or sometimes religious organizations like
the Florida Conference of Catholic Bishops and a former Justice of the
Florida Supreme Court for one brief I did help draft.
Another is what ground the brief should cover. The facts of this case raise
some general issues about California's death penalty system in a very
forceful way. The idea that almost anything can be a "circumstance of the
crime" usable as aggravation to justify the death penalty is carried to its
full absurdity in Scott's case, not as the result of a jury going out of
control on its own, but as a very deliberate prosecution strategy. Reading
the final penalty argument of David Harris had me absolutely outraged!
Trial by media is bad enough, but deliberately asking a jury to use this
method to decide life or death is unconscionable! Actually that might have
been a better argument not before an early 21st-century California jury, but
in the English Parliament in the 15th or 17th century, say, to justify a
bill of attainder by which someone could be sentenced to death without being
convicted of any common law or statutory crime! Just as Parliament could
vote for some new tax or regulation, it could vote to kill someone, being
free to invent the "offense" on the spot. And our Constitution notably
prohibits bills of attainder.
And while the use of victim impact evidence in a capital penalty trial has
long been a controversial area (the U.S. Supreme Court actually reversed
itself in _Payne v. Tennessee_ in 1991, overturning earlier cases barring
such prosecutorial evidence), the prosecution's tactics here went beyond all
limits. Scott's main capital crime was presented not so much as the murders,
but as the "116 days" of uncertainty for the survivors, and for his alleged
imperfect skills as an undertaker. In politics, the coverup can be a worse
offense than the original crime, as was famously true with Watergate. But in
the penalty phase of a capital case, such reasoning is sheer arbitrariness!
My Mom is now in the hospital, and it looks like I'll be going down to Santa
Monica to see her and help with some other family affairs this Wednesday or
so. I should be back by early next month. Let's think this out together.