Tomorrow, the United States Supreme Court will hear one hour of oral argument on an issue it already has considered on a few occasions since the turn of the century: the proper procedure to determine whether a convicted murderer is mentally disabled and thus ineligible for the death penalty.

Over the decades, the SCOTUS has compiled a very short list of categories of convicted felons deemed ineligible for a state's death penalty: juveniles, the mentally insane, persons convicted of crimes other than murder, and of course, the mentally disabled.  The basis for each of these prohibitions is the 8th Amendment's ban of cruel and unusual punishment.

Mental disability made the list via the 2002 decision in Atkins v Virginia. In that case, the SCOTUS only went so far, leaving it up to the death penalty states how to determine whether a convicted murderer was mentally disabled. After Atkins, the High Court provided scant additional guidance, holding that states could not rely on any single factor, such as a low IQ, in making the mental disability determination.

In any death penalty case, there are two trials: one determines guilt or innocence; the other determines punishment at a sentencing trial. The issue to be considered by the SCOTUS tomorrow morning in Brumfield v Cain is whether the 8th Amendment requires yet another separate hearing to solely consider evidence of the asserted mental disability.

If such an evidentiary hearing is required, it would be a trial, within a trial, within a trial. Trey complicated.

Consider that Kevin Brumfield was convicted of killing a police officer moonlighting as a security guard in a 1993 botched grocery store robbery. Brumfield's lawyer eventually raised an Atkins claim regarding his mental disability shortly after that case was decided by the High Court.

At his original sentencing trial in state court back in 1995, Brumfield's mental disability was not raised because the sentencing trial was conducted in the pre-Atkins era. Accordingly, the state court sentenced Brumfield to death without consideration of his alleged mental disability.

Following the imposition of his pre-Atkins death sentence, the matter was brought into the federal courts via Brumfield's habeas petition. In the federal courts, Brumfield asserted that Atkins and the 8th Amendment require a separate hearing on the issue of mental disability.

The lower federal court ordered such an evidentiary hearing which featured testimony from a psychologist, a social worker and other experts that detailed his abused childhood and his alleged mental deficiencies. The federal court made a finding based on this evidence that Brumfield was mentally disabled but this ruling was reversed by the 5th Circuit Court of Appeals.

Now, the SCOTUS will address this issue tomorrow morning. So stay tuned to find out what our High Court has to say about this important constitutional issue.

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By: Timothy P. Flynn

This post is straight from Texas, our most prolific death penalty state.  Texas has executed over 800 death row inmates since the SCOTUS ruled in 1976 that the death penalty was not cruel and unusual punishment after all.

A typical death house drill includes the condemned selecting and consuming one last meal and, just prior to execution, is provided an opportunity to make a statement.  In Texas, these statements have been posted to this Texas Department of Corrections link, along with a brief summary of the inmate's capital conviction.

Fascinating stuff, to be sure.  Some of the most hardened inmates decline comment.  Others make one last assertion of innocence.  Invocations of Allah and Jesus abound; saying goodbye to family and loved ones, promising to wait for them on the other side; exhortations to the system that crushed them and to the brothers they left behind on the row.

Charles Thomas O'Reilly, the recently retired warden of the Huntsville Unit, the prison that houses the death house, presided over 140 executions; the most in Texas history.

The death penalty is and has always been a divisive issue in America.  32 states have death penalty sentencing statutes to the 18 that have banned such punishment, including, most recently, New York, and New Jersey in 2007, and Illinois in 2009.

In the 1972 case of Furman v Georgia, the SCOTUS suspended capital punishment on the basis of the 8th Amendment bar against cruel and unusual punishment.  Then four years later, SCOTUS reinstated capital punishment for murder convictions, provided a trial was bifurcated into two segments: a guilt phase, and a punishment phase where the trier of fact gives separate and specific consideration to the punishment and the convicted defendant has the opportunity to present evidence on mitigation.

Last week, Kimberly McCarthy was executed in Texas.  She was the 500th person in Texas to be executed since it resumed executions in 1982, and the 13th woman to be executed in the United States since the 1976 resumption of the death penalty.

Back in 1998, Karla Faye Tucker was another infamous female death row inmate at the Huntsville Unit.  She was the subject of the book Crossed Over.

Truly, do not mess with Texas.  Texans are willing to walk the fine line between the fair and the harsh.

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Jeeze, the American media sure loves a good capital murder trial; especially one with the whiff of religion mixed with the spectre of the death penalty.  Plenty of grist for their insatiable mills.

Not since Under the Banner of Heaven, Jon Krakauer's fascinating account of the 1984 murders of a Mormon housewife and her 15-month daughter in Utah at the hands of her brothers-in-law, has the Mormon faith been enmeshed with a lurid murder like the trial grinding-onward in Phoenix, Arizona.

Yes, that would be the capital murder trial of the Casey-Anthonyesque "former model", Jodi Arias; accused of shooting, then slicing the throat of her Mormon boyfriend, Travis Alexander.  As a criminal defense lawyer traveling to circuit and district courts across Michigan, I've had plenty of time to listen-in on this sensational trial over the past two-months.

While quite rare to have any defendant take the witness stand in her own defense, it is exceedingly rare for a defendant accused of murder to take the witness stand in a jury trial.  Rarer still is to have the ongoing cross-examination of that defendant available in real-time for more than two weeks.

Cross-examination is the art of controlling a witness in order to convey a story, or a message, to a captive audience of 12 jurors; each of whom have somewhere else to be.  It is a skill that few lawyers can pull-off very well.  Like golf, you cannot just pick it up on the occasional weekend.  While there are boatloads of lawyers out there, only a handful have viable cross-examination skills.

The Jodi Arias trial is so lurid, with such high shock-value, it is a cross-examiner's dream.  A county prosecutor good enough to be assigned to a high-profile case is going to be a proficient cross-examiner.  Just listening to Juan Martinez cross-examining Ms. Arias, as a criminal defense lawyer, is like being in a trial clinic.

But 18-days on the witness stand?  Most judges have local court rules allowing them to control the decorum and procedure in their courtrooms, especially during a jury trial.  This power includes limiting time on the witness stand.  Most court watchers agree that this trial has turned into spectacle and has sailed over-the-top.

On the other hand, once you allow a genie like this out of the bottle, how then can you limit its scope when it takes on a life of its own.  If the Arias defense team tosses her a hundred softballs on a myriad of subjects in her direct examination [i.e. dates, times, family history, abuse history, sexual habits; each in excruciating detail], then what is a prosecutor to do but dutifully explore each and every door that has been thrown open.

Add to this the national media attention to the case, and viola; the politician within the judge in charge of such a circus is not going to prematurely turn the nation's eyes away, especially when that judge is center stage for the ever-ready lens of the voracious national media.

Nor can we forget to account for the potential value to the defendant, win or lose, of grabbing America by the shorties for as long as she can hold-on, in order to maximize her capital in the notoriety bank; the added-value could come in handy further down her tough road ahead.  From a long-term strategy perspective, this makes sense if you are Ms. Arias; and from what I've heard, she's got her head in the game.

We here at the Law Blogger defend the accused in jury trials all the time; admittedly, not high-profile murder cases.  We know some good judges here in Oakland County that could fit five or six murder trials into the yawning span of the Arias trial.  In the end, this spectacle amounts to a huge waste of legal talent and judicial resources.

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