email edition ready
This week’s email edition is now available here:
Leading off this edition is the Sixth Circuit’s grant of penalty phase relief in Rayshawn Johnson v. Bagley where counsel started thinking about a mitigation strategy when “the verdict was back and [the jury] found [Johnson] guilty” and otherwise performed poorly in the penalty phase of the trial. The Florida Supreme Court in Andrew Michael Gosciminski v. State orders a new trial in light of the admission of hearsay in what it termed a weak case for the State. Similarly, the Florida Supreme Court remanded in Dana Williamson v. State as to whether “defendant’s counsel was ineffective in failing to request a Frye hearing before the opinion testimony of the State’s expert, Dr. Robert Ofshe, was admitted into evidence.” Finally, the Alabama Supreme Court in Ex parte Anthony Ray Hinton, (In re: Anthony Ray Hinton v. State of Alabama) grants relief on trial counsel’s failure to retain a firearms expert where ballistics was central to State’s case at trial.
The Supreme Court on Monday denied cert in Georgia v. Walker. Both Justice Stevens (here) and Justice Thomas (here) concurred in the denial. Justice Stevens noted:
I find this case, which involves a black defendant and a white victim, particularly troubling. . . Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. Its undertaking consisted of a single paragraph, only the final sentence of which considered whether imposition of the death penalty in this case was proportionate as compared to the sentences imposed for similar offenses. … Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case
Justice Thomas noted merely such proportionality review is not required under the Court’s precedent.
Two stays of note are had.The Eleventh Circuit has stayed the execution of Troy Davis noting “the parties are directed to address whether Davis may be executed if he can establish actual innocence under 28 U.S.C. § 2244(b)(2)(B)(ii), but cannot satisfy his burden under § 2244(b)(2)(B)(i).” The Texas Court of Criminal Appeals has stayed the execution of Bobby Woods possibly on some sort of mental retardation / Atkins claims [stay order // brief].
Lethal injection developments in several jurisdiction are noted. The Delaware Supreme Court recent heard argument on that state’s protocols. The Nashville City Paper notes “Tennessee lethal injection questions remain.” In North Carolina the trial court judge hearing the lethal injection protocols case there has indicated he needs to hear additional argument before deciding the matter.
Several pieces of new scholarship deserve mention. DPIC notes “Elon University School of Law’s Professor Victor Streib has released a new edition of his book, Streib’s Death Penalty in a Nutshell. Executing Retributivism by Dan Markel looks (available in draft form on SSRN) looks at Panetti v Quarterman and whether that case should be examined relatively narrowly or should it be interpreted as a potential dramatic broadening of the Court’s Eighth Amendment jurisprudence. Finally, and perhaps the one with the broadest application, Brandon Garrett has placed online at SSRN an article entitled The Substance of False Confessions, which has something for both the academic and the litigator.
In other news, Alabama Tommy Douglas Arthur’s claims of innocence will get a hearing this February. The Dallas Morning News recently ran an examination of DNA Exonerations of DNA examinations in Dallas County. The National Law Journal reports, “Ill. law school poised to help wrongly convicted on a shorter path to pardon, compensation.” The Tennessean looks at the state’s indigent criminal justice system and its application of capital punishment in a piece entitled Tentative steps being taken toward fairness in the system. “DeKalb, Fulton juries resist giving death penalty“ reports the Atlanta Journal-Constitution in a look at metro-Atlanta’s death sentencing practices.
Looking ahead, in a fairly straightforward application of Smith v. Texas a Ninth Circuit panel grants penalty phase habeas relief in James Styers v. Schriro. Specifically, the Arizona state courts erred in concluding that PTSD was not mitigating factor as they incorrectly concluded there had to be a causal connection between proffered mitigation and the crime. The Fifth Circuit granted a COA in Nelson Gongora v. Quarterman on prosecutorial comments on failure to testify, as well as eligibility for death in light of Tison v. Arizona.
As always thanks for reading, for forgiving the typos in advance, and understanding that the downturn in the economy has seen a corresponding rise in the demands of an indigent defense practice and related obligations. – k
November 12th, 2008 at 2:23 pm
1. Sam Walton had it right. All employees should have stock in the company they work for. The problem Sam had is that when an employee had a need for funds, Sam had no way to prevent the employee from selling his or her stock, thus they were reverting back in fact and more importantly in mind set, to just a hourly worker.
Social Security is facing a deadline for providing future retirement income now that the baby boomers are entering the picture. Our resources are not going to be able to meet these demands without just printing more and more paper debt. If the government can guarantee certain savings in bank accounts through the F.D.I.C., why not establish a program that would require that every employee own a regulated block of stock (Retirement Account) made up of stock in the company the employee works for and, so the employee will not have all his retirement eggs in one basket, include in this retirement basket high rated stocks from other non-competing companies. It seems to me the government could guarantee these programs as they do through the F.D.I.C regulated plans. This surely would be less expensive to taxpayers than trying to overhaul and fund social security. Most young people I talk with NOW, state they don’t think Social Security will be available when they retire.
Just as we provide student loans to help provide a college education, once the student graduates we should consider providing employment loans that would start the employee ownership package rolling. The employee would pay for the start up plan through a regulated payroll deduction. When the startup package is paid for, it would be mandatory that the deductions continue and the employees startup/retirement package would continue to grow untill retirement. If the employee’s is terminated prior to retirement, the government could establish policy for an escrow holding account pending re-establishing or tranferring the fund with a new employer. Including cases of no employment available or disability.
Provisions could also be made in the G I Bill program earmarking a part of the package to provide the funds for the purchase of the stock package for those leaving the military in search of employment.
Think about the effect this would have on startup businesses, where each employee hired is bringing not just his or her skills, but also bringing investment capital.
Think how customers would be treated by employee owners, and the respect customers would have for employees when they know this person actually does own the company.
Why would a corporation want outside investors electing CEO’s and board members? I feel all corporations should have at least 51% employee ownership.
2, The Peter Principle is the principle that “In a Hierarchy Every Employee Tends to Rise to His Level of Incompetence. This now seems to also apply to Corporations. The bigger the Corporations the harder they fall. One way to reduce the devastating effects of a giant corporate failure would be to break it down into smaller component production ficilities. In the automotive field, this would be the perfect time. Rethinking is the industry is ongoing due to the high cost of energy. More fuel efficent vehicles, alternative power source and hybreds are the future. Retooling will be required whether the production facilities are the same central mega factories or smaller compact units. Why not construct mini asymbly and fabrication units at each local Dealership. Engine production could be spread out all across the country in units such as , Piston plants, crankshaft plants, every part a mini production facility. I believe the reduction in labor cost alone could cover the cost of constructing the mini ficillities. The technology is available to monitor and supervise each facility remotely from a central location. The employee owners would be bringing in investment capital to help put it all together.
3. Vegas & Wallstreet. Wall Street is the BIG APPLE CASINO. Vegas has been ahead of Wall Street gamblers (Traders) for along time. For instance, if you’re a card counter ( a system that gives the player an advantage over the house ) playing Black Jack in a Vegas casino, even though card counting is legal (like selling short or certain other option trading is legal), when the pitt boss catches on to you, the casino has the right to ask you to leave and even ban you from coming back. Why can’t Wall Street take the same position with their trading (gambling) When it is determined that any spicific type of trading action, legal or illegal is detrimental to the overall health of the stock market, it could and should be stoped.
4. Fiduciary responsibility & Golden parachutes, It’s a well known fact that institutional and private fund investors, by virtue of the scale of their collective investments, have enormous influence over financial markets and the global economy as a whole. In 1999 United States public pension funds alone had assets representing 46 percent of the gross domestic product and 33 percent of the New York Stock Exchange’s capitalization. Additional holdings by religious, educational and public institutions, unions and foundations further increase these numbers.
As a result, these institutions’ financial decisions have a huge impact on society. The collective power of these institutions could be limited to 10 to 15% holding in any one corporation thus reducing their power to control the election of CEOs and board members along with their outragous contracts that include multi-million dollar bonuses and golden parachutes.This action would tend to secure the short and long term interests of employee owners beneficiaries, and other shareholders and stakeholders alike.
The realities of the 21st century require fiduciaries to be concerned with the impact of financial, social and environmental factors on the performance of their company to fulfill their legal obligations and maximize shareholder value. In addition, as employee owners, fiduciaries have the duty and the opportunity to promote good corporate governance to protect the assets under their care, and because the corporation is at least 51% employee owned the focus of the CEO and board is not just the bottom line,
The employee owner concept asserts that the integration of prudent financial management practices with principles of environmental stewardship, concern for community, labor and human rights, and corporate accountability to employee shareholders and stakeholders – which have not been considered relevant in the past by the financial decision-making process of professional investers, will now be the primary fiduciary priority. These outside investors with no other relationship to the company or employee, other than ownership of its stock, tends to constitute in fact a single bottom line concept. In order to guarantee long term sustainability, to minimize long and short term financial risk, the definition of fiduciary responsibility has to evolve.
Thank you for your time. Any comments may be sent to
Wylie Axford
propawn@otelco.net