Thursday, March 25, 2010

Good Morning, Hank Skinner

As Hank Skinner was being served his last meal, less than an hour before his last breath, the Supreme Court granted a stay of execution, or what is effectively a stay. I'll not fret the semantics at this point. I'm just pleased to be able to wish Hank Skinner a good morning.

The order is so brief, I'll include the body of that order in its entirety below.

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Now, having been coached by the ex-paralegal Skeptical Niece on the meaning of this, and after having read the ScotusBlog post, I'll try to explain it to you. It will be similar to the party game in which everyone whispers the same story from ear-to-ear until the final story bears no resemblance to the original.

Certiorari is Latin (of course) meaning "to be more fully informed." Meanings change over time, but currently, here in the United States, a writ of certiorari is an instruction from a higher court to a lower court to hear a case. Typically it means the Supreme Court instructs a lower court to hear a case.

Hank Skinner's unbelievably talented and tireless attorneys, led by the unbelieveably talented and tireless Rob Owen, asked the Supreme Court to order the Texas court system to listen to Hank Skinner's plea that his execution will constitute a violation of his civil rights, since probative DNA evidence remains untested. Previously, the Texas court system declined Rob Owen's suggestion that they to do so. 

Unfortunately for the death row folks in Texas, requests to the Supreme Court from Texas and surrounding regions go through Antonin Scalia. But even Scalia said "this is interesting."  Or something to that effect. "We don't have time to even consider as a group if we want to hear this as a case before the Supreme Court. If I ignore this, if I simply say we're too busy or too disinterested, this guy gets the needle and we will have no opportunity to consider this interesting case. I know. I'll grant him a stay until me and my buds can get together and decide as a group if we want to let them make their case before us while we sit behind the big bench in those really cool black robes."

I'll stipulate that it's unlikely Antonin Scalia ever said "me and my buds."  I was carried away in the moment.

Hopefully though, you get the idea.

In a few weeks, Hank's case will be scheduled for "Committee." That's when Antonin and the Supremes can get together and decide if they want to allow Hank's civil rights claim be formally heard by the full Supreme Court. A month or so after that (now I'm really guessing), Antonin and the Supremes will actually meet in "Committee" and decide if they will hear the case. If they decide not to hear the case, the State of Texas will have no further roadblocks between Hank Skinner's cell and the death chamber.

In that worst case scenario, it looks to me (and trust me when I tell you not to trust me on this) as if Hank has at least two more months, since it takes at least one month simply to issue and execute a new death warrant in Texas.

Assuming, however, that Antonin and the Supremes decide to hear the case, that means a substantial delay. They would almost certainly not hear the case before their next term, which begins in October. Once they hear the case, it can be a long time before they annouce their ruling. If they rule against Hank, they will be saying that the refuse to sign a writ of certiorari instructing those clowns in Texas to get their heads out of ...

But I digress. If on the other hand, they rule in Hank's favor, they will then sign a writ of certiorari instructing those clowns in Texas to get their heads ...


In summary, as I apply my extensive inexperience to unravel this legal tangle, I think this means Hank's execution is delayed by two months, or by one year, or will end up back in the Texas courts more than a year down the road.

The chance that I have bollixed this explanation is rated four out of five stars.

25 Mar 10


Anonymous said...

Not to be picky, but Scalia's first name is Antonin, not Anthony. There is Anthony Kennedy and Antonin Scalia.

But anyways, thanks for the update!

tsj said...

TSJ says:

Of course Anonymous is right. Scalia's first name is Antonin, not Anthony. I know that, and it even occurred to me at some level when I was writing the post, but I did nothing about it. Interesting.

I've corrected the post. Unfortunately, I don't think Antonin and the Supremes sounds as clever as Anthony and the Supremes. Not sure I would have tried it if I had started with his correct name. I'm not sure I should have tried it in any case.

I'm glad for the correction, though. It's interesting (at least to me) that I've been called out on two errors so far on this post. I called Scalia "Anthony" and I misspelled "bollixed." The Skeptical Spouse caught and corrected the latter error one for me.

Still, no one has called me out on my legal exposition.

Interesting. (At least to me.)

Anonymous said...

What no one really wants to talk about is the implications of future sec 1983 civil rights lawsuits once the "supremes" decide. Would this forever bar any "evidence" claims that would have otherwise been decided during habeas? Is this not a "third" bite at the DNA apple for Hank? The DNA issue has been decided through habeas, why would it be any different if it goes back to the courts as a sec1983? If there is "exculpatory" DNA, will it outweigh the inculpatory DNA and evidence against Hank, or will it just "fuzzy" the picture further? Too many questions, and I for one am totally interested in how this ultimately plays out. Reminds me alot of the Coleman case. (Remember he embarrassed the Centurian Ministries with his claims of innocence by DNA testing, that posthumously ended up being untrue.)

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