Copyright (c) 2009 All rights reserved. http://works.bepress.com/margery_koosed Recent documents in Margery Koosed en-us Sun, 15 Nov 2009 23:21:31 PST 3600 http://works.bepress.com/margery_koosed/11 http://works.bepress.com/margery_koosed/11 Sat, 14 Nov 2009 14:41:29 PST This article discusses varying eyewitness identification reform proposals that may help to finally achieve a greater level of reliability in this critical phase of the criminal justice process. The author concludes a comprehensive reform that includes tightening exclusionary rules, along with (minimally) corroboration requirements for death-sentencing, and more appropriately, for convictions in capital and non-capital cases, with a concomitant loosening of standards for relief on appeal, hold the most promise. The article addresses adopting best practices; assuring compliance by means of exclusion; admitting expert testimony and educating juries; instructing on the vagaries of eyewitness identification; requiring corroboration with independent and reliable evidence; and redressing unsafe verdicts. A 2002 article advocated a return to the Stovall v. Denno two-stage exclusionary rule, at least in capital cases, and beyond that, proposed a bar on execution if a suggestive identification procedure occurred. This article returns to that view, and addresses additional proposals, including those that would modify the analysis required for exclusion consistent with social science findings; require corroboration in eyewitness identification and general cases; require reliable forensic or other evidence for capital sentencing; and repeal the death penalty to assure against irrevocable errors. Margery Koosed Criminal Procedure http://works.bepress.com/margery_koosed/10 http://works.bepress.com/margery_koosed/10 Tue, 05 May 2009 12:51:41 PDT Margery Koosed Criminal Procedure http://works.bepress.com/margery_koosed/9 http://works.bepress.com/margery_koosed/9 Tue, 05 May 2009 12:42:24 PDT Margery Koosed Supreme Court http://works.bepress.com/margery_koosed/8 http://works.bepress.com/margery_koosed/8 Wed, 20 Feb 2008 07:41:16 PST Introduction, volumes 1-3.Articles submitted to Volume 3 - Litigating Capital Cases:1. Dead Wrong Mistaken Identifications and Capital Prosecutions, volume 3, 268-274.2. Prosecutorial Misconduct in the Penalty Phase Closing Argument- The Improper Invitation to Kill (Part I & II), volume 3, 282-289. Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/7 http://works.bepress.com/margery_koosed/7 Wed, 20 Feb 2008 07:16:37 PST It appeared at the last AALS Criminal Justice Section Annual Meeting workshops and at the Justice Mission Conference in Cleveland that there was general consensus on several matters. First, there seemed to be considerable support for "bringing more doses of reality into the classroom." Second, many faculty wished to encourage a greater sense of professional service among their students. Third, a good number of criminal justice section members observed that capital case decisions of the United States Supreme Court were fine vehicles for class discussion of essential issues.In keeping with these views, I have concluded that I will once again include in my upcoming seminar course an opportunity for students to assist a death row inmate petitioning for writ of certiorari to the United States Supreme Court, under my supervision as counsel of record. I am writing to encourage other faculty teaching seminar or clinical courses to consider incorporating into their classes such an opportunity.From a pedagogical standpoint, giving students the opportunity to research cutting-edge legal issues, to assist in preparing a petition seeking review in the nation's highest court on behalf of a death-sentenced client, and to participate in a pro bono legal experience, would appear to satisfy many of the goals which we, as professors, espoused in our sessions. From a professional and individual standpoint, taking on the responsibility to serve as counsel for an unrepresented death row inmate, even if only at one stage of review, allows us the opportunity to serve our profession and community, and to personally participate in the justice mission.Some of us currently teach, or will be teaching, Capital Punishment Seminars. This opportunity is clearly well-suited to such a course. Those of us teaching criminal process seminars, or clinical courses with an in-house criminal courts bent, would also find these cases useful, interesting, and fitting to the pro bono program. Even if no specific course of this type is included in the curriculum, capital cases appear to generate very helpful discussions in more generalized criminal procedure course offerings, and this experience could thus fit within a generalized course as well. Finally, even if no course offering could accommodate such an experience, it is quite possible that law student organizations or informal groups would wish to consider such a project to fulfill a public interest or substantive criminal justice interest, and that a group of students would welcome the opportunity to work with one or more faculty members on such a non-credit project. Giving law students the opportunity to work on a petition for certiorari under the supervision of a law professor who would serve as counsel of record, would satisfy many of our pedagogical goals and provide a desperately needed legal service. The certiorari process is well-suited to such a project. There is a rather short-time period for preparation and filing. The petition itself is rather short in length and generally limited to but a few issues. From the inmate's standpoint, the highlighting and selection of a few issues is advantageous and will not foreclose or jeopardize litigation of these or other issues in post-conviction proceedings if certiorari is denied. More importantly from an instructional standpoint, selection allows greater flexibility in fitting the exercise into a course offering. Finally, if certiorari is granted, law students would have the opportunity to observe and participate in litigation at the highest level of our appellate system. Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/6 http://works.bepress.com/margery_koosed/6 Wed, 20 Feb 2008 07:02:44 PST This article was prompted by the March 5, 1990 decisions of the United States Supreme Court in Butler v. McKellar and Saffle v. Parks, which may well significantly limit the scope of federal habeas corpus review. It is evident that the Court will now allow some constitutional errors, which concededly occurred during the course of a state criminal trial, to be ignored and to go unredressed in the federal courts. In purporting to protect the state's interest in finality, and in its apparent willingness to trust a state court's judgment on some constitutional questions, the Supreme Court has seemingly returned the issue of whether these particular federal constitutional violations should be redressed to the same state court that had erred in the first instance. As in the above cases, where the death sentence had been imposed, it now appears that the state will decide what, if any, relief it wishes to provide for some constitutional errors occurring during the course of a capital prosecution.These cases, along with previous decisions of the Supreme Court limiting the availability of federal habeas corpus review, are of great concern, particularly with respect to capital litigation. It is the thesis of this article that, in many jurisdictions, the combination of presently inadequate state appellate review and now further curtailed federal court review will create a substantial risk that innocent individuals and those undeserving of death, or arbitrarily sentenced to death, will be executed.To alleviate this risk of error in capital sentencing, and to avoid such clearly unacceptable and inappropriate executions of our citizens, it is essential that a state take steps to provide some mechanism of review of these issues. This article suggests, and rather briefly examines, two methods of providing that assurance.First, this article advocates that states, which now must assume responsibilities that they may well have relied on the federal courts to carry out, must re-evaluate the adequacy of post-conviction mechanisms within their judicial system to address these concerns. In many jurisdictions, such as Ohio, these mechanisms are inadequate, if not absent altogether. In such jurisdictions, it will be necessary to either legislatively, or judicially, expand the scope of statutory post-conviction relief. Alternatively, a state might admit the statutory post-conviction reliefs failings, and instead, provide a mechanism of review within the extraordinary writ context of state habeas corpus relief.Second, this article focuses on the responsibility which now must be assumed by state governors. Historically, when the judicial system could not redress errors of law, or when the judicial system could not do justice, it was governors, through exercise of the executive's power of commutation, who filled that gap and did justice. Even if modifications are made to the state post-conviction system, these are unlikely to adequately assure that justice is done. Although the political climate may be perceived to create a disincentive to acceptance of this responsibility, this impression is misleading. Indeed, this responsibility must be accepted, as the public's and the governor's expectation that the courts have identified and corrected all injustices through supposedly extensive review, is simply no longer accurate.In the end, this article asks for accountability, that some institution or individual assume the responsibility for assuring that, when deciding who should live and who should die, reliable, non-arbitrary, and fair decisions will be achieved. The United States Supreme Court has shown it is no longer willing to bear that responsibility alone. It has now shifted much of that responsibility back to the states. Society now stands at a point similar to where it stood some forty years ago when the doors to the federal courts were only partially open. Some differences exist; for instance, the constitutional violations that are evident now as a person approaches execution were not evident then. But even forty years ago, the states shouldered that responsibility with some care. When the state's judicial machinery failed in its responsibility, governors often assumed it. Today, when the process of death-sentencing is so much more subject to public evaluation, society demands that these cases of possible unreliable, arbitrary, or discriminatory death-sentencing be rectified.These issues will soon be addressed in all states with capital sentencing statutes. A detailed, thorough evaluation on a national scale of all of these issues is unfortunately beyond the scope of this article, due to the time constraints imposed by publication. Rather, this article will attempt to modestly illustrate these issues by focusing on a single jurisdiction, Ohio. Hopefully, the illumination of the inadequacies of Ohio's direct appellate review and state-post-conviction relief processes, and presentation of proposals for the expansion of judicial review in these contexts, will be of assistance here as well as in other states. Similarly, illumination of the traditional role of the executive branch in filling in the gaps caused by inadequacies in the judicial system, through use of the commutation power, will hopefully encourage serious attention to the responsibility which should be exercised by governors in the years to come. Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/5 http://works.bepress.com/margery_koosed/5 Tue, 19 Feb 2008 14:15:11 PST Eyewitness Identification, vol. 1, 567-568Kirby v. Illinois, vol. 2, 892-893 Lineups , vol. 2, 925-926 Manson v. Brathwaite, vol. 2, 955-956U.S. v. Ash, vol. 3, 1679 U.S. v. Wade, vol. 3, 1697 Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/4 http://works.bepress.com/margery_koosed/4 Tue, 19 Feb 2008 13:15:26 PST Encyclopedia Entry. Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/3 http://works.bepress.com/margery_koosed/3 Tue, 19 Feb 2008 12:34:01 PST Imagine yourself charged with a capital crime, on trial for your life. You have been convicted and the jury is now hearing evidence in the penalty phase to determine your fate. You are relying on your counsel, the judge, even the prosecutor, to assure you a fair trial. Now imagine that no one in the courtroom knows all of the correct sentencing options. Although the law allows the jury to sentence you to death or to one of several life terms, including life imprisonment without parole, no one knows that life without parole (hereinafter LWOP) is an option.Although this scenario seems implausible, this is just the circumstance Charles Marshall faced in a Cleveland courtroom in the fall of 1997. When this fateful error was uncovered, the trial judge ordered an untested cure for this mistake: Charles Marshall would receive a new penalty phase trial before a new jury. A brand new amendment to Ohio Revised Code 2929.06, now allowed a different jury, a jury that had not convicted the defendant, to sentence the defendant to death. Thus, State v. Marshall was to become the test case for a new statute. This article explores and analyzes the two-pronged legal dilemma that confronted the Marshall court: in Ohio, finding the correct sentencing law is often difficult; and a recent amendment to the resentencing portion of that law, S.B. 258, destroys the efficiency that was characteristic of Ohio's previous resentencing framework. Consequently, Part II of this article examines the facts and holding of State v. Marshall and suggests that finding the applicable law must be simplified. Practitioner handbooks are often confusing and incomplete, in part as the Ohio legislature generates an ever-changing body of law. Justice and the lives of human beings demand remedial steps to avert this problem. Part III describes the evolution of Ohio's resentencing law and the recent adoption of Senate Bill 258, amending Ohio Revised Code section 2929.06. Following a brief description of Ohio's bifurcated capital litigation scheme, Part IV asserts that jury penalty retrials pursuant to Senate Bill 258 will lead to more challenges in the courts, may well waste limited judicial and criminal justice system resources, may prove unworkable in practice, and are not likely to serve the interests of justice. And after concluding with the assertion that Senate Bill 258 is unwise, unworkable, and better left alone, Part V highlights the quite illusory benefits of re-seeking death, while noting that vengeful actions often work against healing. Margery M. Koosed Capital Punishment http://works.bepress.com/margery_koosed/2 http://works.bepress.com/margery_koosed/2 Tue, 19 Feb 2008 12:26:46 PST This article considers community views on the risk of mistaken executions and how sentencing juries respond to such risks. It explores the present state of the law surrounding risk-taking regarding lingering or residual doubt, and finds the law in a state of denial. Though the risk may be there, and jurors may see it, this is not something they are directed, or even invited, to consider. Some jurors may deny effect to the risk they see, believing it is not a proper subject of their attention. Others will consider it, yet wonder whether they should. This inconsistent treatment, and dissonance from what the public wants and justifiably expects from its legal system, is largely a product of the United States Supreme Court's 1988 decision in Franklin v. Lynaugh. Arguably misread, and at least misguided, the Court's decision on considering lingering or residual doubts about guilt as a mitigating factor at the penalty phase has retarded development of meaningful ways to avert mistaken executions. Margery M. Koosed Capital Punishment