If you have haven't guessed,  thanks to the traditional early January slowdown, there isn't much new case law to report in this edition.

Baze oral arguments dominates this issue. The oral argument transcript reveals that all the Justices appear to support the concept that the Eighth Amendment does apply to the procedures of how a person is executed.  The Justices appear split, however, on whether the record is adequate to address the ultimate issues and whether the Court should remand for further factual developments.  The ultimate question, is perhaps best summed up by Reason magazine’s Jacob Sullum, Which Execution Method Causes the Least Discomfort (to the Public)?

The Supreme Court in Wright v. Van Patten reverses a grant of habeas corpus relief in a noncapital case in this per curiam opinion.  Previously the Seventh Circuit held that trial counsel's appearance merely by phone resulted in ineffective assistance of counsel.  The Warden sought cert and the Supreme Court summarily granted certiorari, vacated, and remanded (GVR'd) in light of Carey v. Musladin.  On remand the Seventh Circuit reinstated habeas relief holding nothing in Musladin prevented the grant of relief. This time, rather than GVR'ng the case,  the Supreme Court details why habeas relief was inappropriate.

The Supreme Court on Monday also granted  Maxwell Hoffman’s Motion to Vacate Decision Below and Dismiss the Cause as Moot in Hoffman v. Arave. Hoffman received habeas relief on both guilt and penalty phase related claims, including ineffective assistance of counsel as it related failing to pursue a proposed plea agreement that would have taken death of the table.  The State appealed only the guilt phase grants of relief to the Ninth Circuit and, following that, certiorari on the IAC issues as it related to the plea bargaining issues. The vacateur of of the cert. means, practically, Hoffman's resentencing trial can begin in Idaho.

In the political news of the week, John Spirko was commuted by Governor Strickland in Ohio after DNA failed to link him to the crime for which he was scheduled to die in a few weeks. Nebraska appears to be more and more looking like it will be having another show down vote on repealing the death penalty in 2008, it will either pass or fail in the legislature by the thinnest of margins.  Internationally, Morocco’s government appears to have renounced the death penalty in principle becoming, quite possibly, the first Arab country to abandon the practice. Indeed, “Justice Minister Abdelwahed Radi said Morocco no longer views the death penalty as acceptable.”

In other news, in Ohio  Kenny Richey has been freed. after two decades on death row following a time served nolo contendre plea. DPIC notes In The Top Ten Death Penalty Myths, professors Rudolph J. Gerber and John M. Johnson explore ten arguments used to support the death penalty and provide readers with current research and studies on  how "political and community leaders have used myth and emotional appeals to misrepresent the facts about capital executions.”  A curious legal challenge in New Mexico, according to this press report, looks to have a decent shot at ending the death penalty there. 

Looking ahead, three opinions of note are noted so far.  In Richard Harper v. State, a pretrial appeal, the fruits of a search of Harper's office are suppressed as "the warrant authorizing the search was issued without a showing of probable cause" and no exception to the warrant requirement can be found.  In Florida the state supreme court in Ronald Lee Williams v. State grants relief as " trial counsel was ineffective in failing to present the trial court with available evidence of mitigation"especially in light of the trial judge's reputation for overriding to death jury recommendations for life.    Finally, there is the Sixth Circuit's holding in Frank Spisak v. Hudson, on remand from the SCOTUS that "[a]fter careful review and consideration of Musladin and Landrigan, we find that neither of the cases require reversal" of the prior grant of penalty phase relief.

As we've been warning for some time, we've modified the names & email group address, but as always, thank you for reading. -k