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Thread: Calvin McMillan - Alabama Death Row

  1. #11
    Senior Member CnCP Legend Mike's Avatar
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    McMillian is challenging Alabama's use of judicial overriding.

    https://www.supremecourt.gov/DocketP...93%20Reply.pdf
    "There is a point in the history of a society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly. Punishing somehow seems unfair to it, and it is certain that imagining ‘punishment’ and ‘being supposed to punish’ hurts it, arouses fear in it." Friedrich Nietzsche

  2. #12
    Administrator Moh's Avatar
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    In today's orders, the United States Supreme Court declined to review McMillan's petition for certiorari.

    Lower Ct: Court of Criminal Appeals of Alabama
    Case Numbers: (CR-17-0718)
    Decision Date: November 9, 2018
    Discretionary Court Decision Date: March 20, 2020

    https://www.supremecourt.gov/search....ic/20-193.html

  3. #13
    Administrator Aaron's Avatar
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    So much for all that hype about judicial override. The practice is constitutional. Period.
    Don't ask questions, just consume product and then get excited for next products.

    "They will hurt you. They will hurt your grandma, these people. The root cause of this is there's no discipline in the homes, they don't go to school, you know, they live off the government, no personal accountability, and they just beat people up for no reason, and it's disgusting." - Former Hamilton County Prosecutor Joe Deters

  4. #14
    Senior Member CnCP Legend Neil's Avatar
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    Too bad Delaware’s practice was ruled unconstitutional by their criminal activist court. If Beau Biden was still alive during that time we could’ve had a cert review for it.

  5. #15
    Senior Member Frequent Poster Fact's Avatar
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    One could make the argument that Delaware could resume imposing the death penalty today in light of McKinney. They resolved the case solely on Sixth Amendment grounds and it wasn't appealed.

  6. #16
    Administrator Moh's Avatar
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    Judicial Sentencing in Capital Cases

    By Kent Scheidegger
    crimeandconsequences.com

    Should sentencing in capital cases be decided by the judge or the jury? Since 1976, the Supreme Court has decided that a two-step process is required: (1) narrow the group of murderers eligible for capital punishment by finding some reasonably objective fact, and (2) decide on what the punishment is just after considering whatever aggravating factors state law specifies and practically everything the defendant wants to submit in mitigation.

    Since 2002, the Court has held that the defendant has a right to a jury for step (1). However, since 1976, the Supreme Court has consistently held that step (2) may be decided by the trial judge, a panel of judges, the jury, or the judge after an advisory verdict by the jury, whichever the state chooses. It reaffirmed that rule earlier this year in McKinney v. Arizona. See this post.

    Today the Court turned down yet another attempt to toss out 44 years of solidly established precedent in McMillan v. Alabama, No. 20-193.

    The main argument for having juries make the decision is that they are drawn from the populace and thus speak as the conscience of the community. That argument is a bit strained after considering all the selectivity that goes into choosing a jury, especially in capital cases.

    However, there is something to be said in not having the matter decided by a single judge. In many years of working in capital appeals, I know that there are some appellate judges who will not vote to affirm a capital sentence unless their backs are absolutely to the wall. Justices Brennan and Marshall voted to overturn every single death sentence from 1971 until their respective retirements in the early 1990s. Judges Reinhardt and Pregerson of the Ninth Circuit voted to overturn all but one or two, even after an Act of Congress sharply limited their authority to do so.

    I do not doubt that there is similar variety of views among trial judges, and the kind of case that would result in a death sentence would vary widely with the assigned judge. That is why some states once assigned sentencing to three-judge panels, and Nebraska still does.

    Another factor in assigning the decision comes from the problem of the inability of the jury to unanimously agree. Because the sentence is a matter of judgment about justice rather than a finding of objective facts (e.g., “whodunit”), disagreement is a greater problem in penalty than in guilt.

    The optimum solution is to do the same for penalty as we do for guilt: a hung jury results in a new trial before a new jury. Arizona and California have this system. But resources are always an issue, and capital penalty trials are expense. The worst solution is regrettably the most common. If the jury hangs at eleven for death and one for life in prison, the view of the one prevails over the view of the eleven. This is arbitrary in the extreme. Such a division depends more on the luck of the murderer (or perhaps the selections skill of his attorneys and pro-defendant selection rulings by the judge) in getting one juror who will hold out despite aggravating facts that the other eleven regard as compelling more than depends on the actual merits of the case.

    The advisory jury with final decision by the judge is one method of dealing with both the unanimity and single-judge idiosyncrasy problems. Alabama’s previous system allowed an non-unanimous jury recommendation, but the judge could still decide either way.

    The Supreme Court today turned down a case where the jury split 8-4 for life in prison but the judge imposed the death penalty. The sentence was for a murder during a carjacking, captured on a video camera. From the State’s Brief in Opposition:

    On August 29, 2007, James Bryan Martin entered an Alabama Wal-Mart to purchase diapers, an energy drink, and a candy bar. McMillan v. State, 139 So.3d 184, 191 (Ala. Crim. App. 2010). He returned to his truck and climbed into the driver’s seat. Id. A moment later, Calvin McMillan, in front of several witnesses and a Wal-Mart surveillance camera, shot Martin and pulled him out of his truck. Id. Martin collapsed on the ground, and McMillan shot him twice more. Id. McMillan stole Martin’s truck and began to flee but stopped the truck so that he could shoot Martin one last time. Id. McMillan then drove away. Id. He was apprehended by police the next day. Id. at 192. After his arrest, McMillan attempted to incriminate another man in the murder; however, that individual had been confined in the Lee County Detention Facility during the weeks before and after the murder.

    The Supreme Court affirmed the system of jury as advisor and judge as decider in the 1976 case of Proffitt v. Florida. Florida later put very strict controls on judges overriding the jury to impose a death sentence but no such restriction on overrides in the other direction. However, the Supreme Court in Proffitt upheld the system on the understanding that, “[t]he jury’s verdict … is only advisory; the actual sentence is determined by the trial judge.”

    The emphasis in Proffitt was on the question of whether this system rendered the death penalty arbitrary in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. Four years earlier, in Furman v. Georgia, that clause had magically morphed from a purely substantive prohibition on certain punishments into a procedural regulation whereby a given punishment for a given crime for a given defendant can be “cruel and unusual” or not depending on the procedure by which it is imposed.

    Eight years later, in Spaziano v. Florida, the Court confirmed that having the judge decide the sentence does not violate the Sixth Amendment right to jury trial, either. The Court later limited Spaziano to the discretionary selection decision, not the objective eligibility decision, but to that extent it is still good law, as affirmed in McKinley.

    So McMillan’s lawyers went back to the Eighth Amendment, reasserting the argument rejected by the Court way back in Proffitt. Later experience, they said, showed that jury override was arbitrary despite what the Court had said back then. The certiorari petition cites examples that sound bad, but I learned long ago not to believe anything the anti-death-penalty side claims without verification.

    The State defended its judgment on two grounds. First, it claimed that McMillan had defaulted his claim by not raising it at the proper time. Successive petitions are not allowed unless they raise a “miscarriage of justice.”

    The defendant’s reply surprisingly claims, in essence, that every constitutional error constitutes a “miscarriage of justice” under Alabama law. That is very doubtful. His only support for such a rule is a case arising out of the Miller v. Alabama / Montgomery v. Louisiana issue. That is a special case, described in this post, and it cannot reasonably be stretched to include every constitutional error.

    The State’s second defense is to rely on long-established precedent. That is a good defense, in my view. The Supreme Court has done far too much switching back and forth, “tinkering with the machinery of death.” It is long past time to stop tinkering and recognize the reality that the Constitution leaves most of these procedural issues to the democratic process.

    In 2017, Alabama abandoned judicial override. The jury now returns a verdict, not a recommendation. The State deals with the divided jury by providing that a jury can return a death sentence verdict by a vote of 10-2 or more and a life in prison verdict by a majority vote. In between those limits, it’s a mistrial, and a new jury will consider the penalty.

    What to do about the old cases? The legislature decided not to make the law retroactive, and that is within its constitutional authority. Earlier sentences can and should be scrutinized carefully under executive clemency, and any actual injustice can be corrected at this point.

    On the facts of this case, no injustice is apparent. McMillan is on camera stopping his truck to shoot Mr. Martin again to make sure he was dead at a point where McMillan could easily have made his getaway. This is an exceptionally callous crime for which a death sentence appears to be the just result.

    https://www.crimeandconsequences.blog/?p=2429#more-2429

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