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January 28, 2007

Considering your white-paper jurisdiction selection

As indicated here, this week everyone is to (tentatively) select a jurisdiction for the white paper.  In a subsequent post, I will ask for tentative choices to be reported in the comments.  This post provides some "food for thought" as you consider options.

1.  The kind of advice you want to give should impact your choice of jurisdiction.  If you are eager to advocate strongly against the death penalty, consider selecting a state or country in which the death penalty is still in place; if you are eager to advocate strongly for the death penalty, consider selecting a state or country in which the death penalty is inactive or in decline.

2.  If you like current events, consider selecting a jurisdiction in the midst of a robust legal and/or policy debate.  California, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, Texas and Wisconsin are just some of the states that are sure to continue making death penalty headlines in 2007. 

3.  Feel free to be thoughtfully creative in your choice.  You can go international (e.g., China, Iran, Japan and the European Union all have lots of capital issues); you can go local (e.g., Harris County, Texas and Hamilton County, Ohio have together sent more people to death row than about 40 US states combined).

4.  Have fun and follow your interests.  Because this assignment should be more engaging than a traditional final (or even a standard research paper), you may spend lots of time on this project.  Pick a jurisdiction that truly interests you so that the experience feels like a labor of love.

January 28, 2007 in Course requirements | Permalink


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To Prof Berman's students:

I am writing to follow up on Prof Berman'excellent suggestion to create a white paper involving the death penalty that would address issues in a specific state and be directed to persons with the ability to effect change.

I have been a capital defense lawyer for 30 years and currently have clients on death row and clients awaiting capital trials. Possibly some student would be interested in a project discussing the application of Apprendi/Ring/Blakely principles to capital litigation in North Carolina.

This is uncharted territory which would involve both conceptual analysis of fundamental Sixth Amendment principles , as applied to practical courtroom settings. The project could be submitted to the Conference of Superior Court Judges in NC in written form and maybe I could arrange for a presentation of the work at a conference.

The scope could encompass both discussion of underlying principles and such straightforward things as what a verdict sheet should look like in the post Ring world. Right now I think North Carolina's use of two verdict sheets is inconsistent with Apprendi. Other issues could relate to the application of Rules of Evidence to aggravator determination, ex post facto issues related to the use of prior convictions, double jeopardy implications, offense characteristic and offender characteristic distinctions, etc.

Anyone who would be interested in such an effort to prepare a Trial Judge's Manual for Capital Cases, which has an Appendix of forms preceded by a discussion of the application of the Court's Sixth Amendment jurisprudence to death penalty litigation, please let me know.

Bruce Cunningham
[email protected]

Posted by: bruce cunningham | Jan 28, 2007 2:19:51 PM

California's procedure bifurcates the consideration of eligibility factors (which other states call aggravating factors, but California calls "special circumstances") from the separate consideration of a series of unlabelled selection factors (which California calls factors in aggravation and mitigation). The special circumstances (eligibilty) are normally determined during the guilt phase. The subsequent penalty phase involves the consideraton of mitigation and selection of the death penalty. It is a distinctive system. The California statute also shows how differences in terminology can affect and occasionally confuse the analysis of death penalty statutes (see last Term's decision in Brown v. Sanders). Finally, the statute illustrates the difficulty in defining the differences between weighing and non-weighing statutes.

If you are interested in the current Apprendi/Blakely/Booker/Cunningham situation, you can see how this issue began to evolve in California during the early and mid-1980's in conjunction with issues relating to its "special circumstances". In particular, look at the line of cases that commence with Carlos v. Superior Court, 35 Cal.3d 131 (1983). The Carlos case, which was later overruled in People v. Anderson, 43 Cal.3d 1104 (1978)--is one of the most significant events in the history of the California death penalty. It raised the questions of how to distinguish between the elements of offenses and sentencing factors as well as the appropriate standards of review for trial errors in capital cases.

Posted by: ward | Feb 3, 2007 2:37:55 AM

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