Continuing a discussion of the Supreme Court's term (crime and punishment)

To pick up on the thought with which I ended yesterday's entry: as I write these words, Richard Glossip is still alive. And that has to be considered good. 

Glossip is alive because the US Supreme Court, in January of this year, agreed to hear his case. I mentioned that fact in this blog in February, but I'll say a bit more now. 

In January 1997 (yes, more than a quarter of a century ago, and days before the second inaugural of President Clinton) and man called Barry Van Treese beat Justin Sneed to death with a baseball bat. In order to avoid the death penalty, Sneed testified that Glossip instructed him to do this. 

Van Treese's sayso is virtually the whole of the prosecution case. Just about everybody who has looked into the matter believes that Van Treed was lying. Sneed's family members, and the Attorney General of the State of Oklahoma, are among the many who have drawn that conclusion. So ... why is Glossip still on death row? 

The short answer is bureaucratic inertia. Once the machinery of death is activated it keeps creaking along.

But Glossip still lives, the Supreme Court (presumably next term) will take up the case and there will be no execution until it is heard from. That sounds ... sane.  

We turn to another death-penalty case now: Thornell v. Jones, decided in May.  Beyond that, we'll want to look at a double jeopardy matter (McElrath) and retaliatory arrests (Gonzalez).  We'll end with civil procedure, and the 7th amendment right to a jury trial upheld in Jarkesy, which will give us a good bridge into the last post on this session, for reasons that may become clear as we proceed. 

So ... Thornhill.  The court decided this case the old fashioned way ... by declining to decide. It denied review in the case of a Texas man, Gustavo Sandoval, who was convicted of murder and sentenced to death for the killing of an off-duty border patrol officer during an attempted robbery.

Sandoval was not allowed to attend a special proceeding at which a judge conducted preliminary interviews of potential jurors who had been called for the case, at which those jurors were given information about  Sandoval and the charges against him, known as a special venire. This was the basis for the appeal. 

A sort of "super due process" has long been held to apply to capital punishment. The openness of the proceedings, even in the early stage involved here, seems a natural part of that general procedural principle. Sandoval appealed, and on May 13 SCOTUS declined to hear that appeal. 

Sandoval remains alive as I write, only because the machinery of death creaks slowly. 

 https://www.tdcj.texas.gov/death_row/dr_info/sandovalgustavo.html 

When the court refused to hear the matter, Justice Jackson dissented in a six-page decision joined by Justice Sotomayor.  Jackson noted the disturbing opacity here: "[m]ost of the exchanges between the prospective jurors and the court troublingly took place entirely off the record, without any recording or transcription, leaving little trace of what was said, who was excused, or why." 

This is the world in which we live and die, depressingly and increasingly unlikely to know why, even or especially when our death is the consequence of actions of our sovereign. 

On the issue of double jeopardy, we go back to the "good" side of the scale.  SCOTUS upheld the important principle, and did so where it might have side-stepped it. 

In February of this year the Court issued a unanimous decision in McElrath v. Georgia, with a brief opinion by Justice Ketanji Brown Jackson.

Damian McElrath was a mentally ill defendant who killed the woman who had adopted him, in part at least due to the delusional belief she was poisoning him. In Georgia, he was charged with what the state calls malice murder, that is, premeditated murder, as well as felony murder and aggravated assault. The jury acquitted McErath of the most serious offense and convicted him of the others.  

So ... that takes the malice murder thing (and with it capital punishment) off the table forever, right? Double jeopardy, after all. Well, the Supreme Court of Georgia didn't see it that way. It said that since the state of mind necessary for conviction on those lesser offenses is the same as the state of mind necessary for malice murder, McElrath should either have been acquitted of all or convicted of all on this record. Contradictory verdicts are a "repugnance". Accordingly, Georgia should get a retrial on the malice murder charge.  

Jackson's opinion said that it is settled law that "a verdict of acquittal is final, ending a defendant's jeopardy."  So: what is an acquittal? It is "any ruling that the prosecution's proof is insufficient to establish criminal liability." 

Furthermore, the logical inconsistency in a compromise verdict did not strike Jackson as all that repugnant. "At any rate, the jury has an unreviewable power to return a verdict of not guilty even for impermissible reasons." 

Well reasoned, Justice Jackson. Well enough said that this leaves me with no responsibility to say any more here. So we move to Gonzalez and the claim of a retaliatory arrest. 

Sylvia Gonzalez was a councilwoman in Castle Hills, Texas in 2019, at odds politically with Castle Hills' city manager. After a council meeting she scooped up some material and put it into her folder. On her account of events, it had been a long meeting and she believed she was merely gathering together her own materials, and inadvertently took with her an official government record to which she was not entitled.

Gonzalez was arrested. She believes that she was arrested only at the instigation of the city manager due to criticisms she had made of him, and such a retaliatory arrest is rightly illegal.

The district attorney didn't pursue the matter. Gonzalez, though DID pursue it. She went to federal court  in 2020 contending that the arrest had been a retaliation against her for her criticism of the mayor, its police chief, and a detective.  

The Supreme Court has now agreed with her. Not on the final issue, but it has agreed that she ought to get her hearing on whether the arrest was retaliatory. She should have that hearing. And if the authorities acted wrongly, let us not rush to give them "immunity" because arresting people is an official act! 

Finally, Jarkesey. When I hear the phrase "securities fraud litigation" I personally think first of criminal prosecutions, the sort that Rudy Giuliani used to bring back in the day. And, of course, such litigation comes with a sixth amendment right, vested in the defendants, to receive a trial by jury.

But what of civil actions, brought by the SEC? The seventh amendment governs the jury trial requirement for such actions, and it refers to trials "at common law" where monetary damages (in excess of $20!) are sought.

The SEC alleges that Jarkesy and other defendants falsely told their investors that (1) a prominent accounting firm would audit the hedge funds; (2) a prominent investment bank would serve as the funds’ prime broker; and (3) one of the funds would invest half of its capital in life settlement policies. In reality, the audit never took place, the bank never opened a prime brokerage account for the John Thomas funds, and the hedge fund invested less than 20 percent of its capital in the life-settlement policies. 

The SEC also alleged that Jarkesy defrauded his investors by overvaluing the funds’ holdings to charge higher management fees. 

The ALJ who was assigned to hear the case decided that Jarkesy and his advisory firm, Patriot28, had violated several laws. In due course he was ordered to pay a civil penalty of $300,000 and Patriot28 was ordered to repay nearly $685,000 in ill-gotten gains.

The court has now struck down those awards and has said that Jarkesy is entitled to a jury trial. It is unclear how far this principle is intended to extend: whether the office of an ALJ, in any of the many agencies in which there now exists such offices, is obsolete or whether some of the particulars of Jarkesy’s situation may be employed as limiting principles to preserve some of their workload.

In my own view, I have to count this on the good side of the scale. Just as we should be happy Gonzalez gets her day in court as a civil plaintiff, I think we should be happy or at least content that Jarkesy will get his as a civil defendant. How this will shake out we must leave to the future.