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Overdue Process And The Death Penalty

By       Message Clifford Johnson       (Page 3 of 5 pages) Become a premium member to see this article and all articles as one long page.     Permalink    (# of views)   No comments, In Series: Death Penalty doctrine

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[1] McKane v. Durston, 153 U. S. 684, 687 (1894).

[2] Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 466 (1985) (Marshall, Brennan, and Blackmun, dissenting).

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[3] Kulko v. Superior Court, 436 U.S. 84, 101 (1978).

[4] Jiminez v. Myers, 12 F.3d 1474, 1480 (9 th Cir. 1993) (Kozinkski, dissenting).

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[5] Under old English common law, the right to a writ of error (i.e. to appeal) existed only for civil cases and misdemeanors, while the right to counsel at trial existed for petty but not serious crimes. Blackstone railed against such perverse priorities, and the colonies generally provided for writs of error and trial court counsel for all crimes. Blackstone, Commentaries On The Law Of England, III at 406-11, IV at 355, 392 n.11 (N.Y. Ed. 1844). See also Powell v. Alabama , 287 U.S. 45, 60-62 (1932). Of the original 13 states, only Georgia entered the union with no criminal right to appeal, and not until 1845 did Georgia have a higher court to appeal to. History of the [Georgia] Court of Appeals. Georgia's current right of appeal statute refers back to 1863. See Were There no Appeal: The History of Review in American Criminal Courts, Journal of Criminal Law and Criminology, Vol. 81 (Fall 1990), by David Rossman. (In passing the Fourteenth Amendment in 1868, Congress had Georgia on its mind.)

[6] Halbert v. Michigan, 545 U.S. 605, 610 (2005).

[7] Thus, the right on a first appeal to such essentials as transcripts and counsel, rests on inequality. Griffin, at 18-19, 21-22, 27:

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There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e.g., McKane []. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. [Plurality]

Nor does the equal protection of the laws deny a State the right to make classifications in law [] rooted in reason . . . Since capital offenses are sui generis, a State may take account of the irrevocability of death by allowing appeals in capital cases and not in others. Again, 'the right of appeal may be accorded by the State to the accused upon such terms as in its wisdom may be deemed proper.' McKane. . . [Frankfurter conc.]

Illinois . . . could thus deny an appeal altogether in a criminal case without denying due process of law. McKane []. To allow an appeal at all, but with some difference among convicted persons as to the terms upon which an appeal is exercised does not deny due process. It may present a question of equal protection. [Joint Dissent]

[8] Furman v. Georgia, 408 U.S. 238 (1972).

[9] Trial rights (to a speedy trial by a jury, to confrontation, etc.) are guaranteed by the Sixth Amendment, which applies to the states per the Fourteenth Amendment. See: Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

[10] Jones v. Barnes, 463 U.S. 745, 756 n. 1 (1983).

[12] Jones v. Davis, 14-56373 (9 th Cir. 11-12-2015). I am informed that a petition for rehearing en banc is being drafted.

[13] Jones v. Chappell , 31 F.Supp.3d 1050 (2014).

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Clifford Johnson is a semi-academic naturalized Brit. He first entered the U.S. as a rah-rah Harkness Fellow. For theater, language, and also as a questionable ex-Brit, Johnson adopts a Tom Paine II persona. His activist credentials comprise serial (more...)

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